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July 28, 2014

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Could Big Tobacco go up in smoke?

I have next to zero sympathy for John Rizzuto.

Yes, it’s a shame he’s too sick to play ball with his grandkids or walk his dog.

But that sort of thing tends to happen when you spend four decades smoking high-tar cigarettes such as L&Ms and Marlboros.

Rizzuto — a retired U.S. postal worker from Spring Hill, Fla., — started lighting up 53 years ago, which was three years after the U.S. surgeon general first stated that “excessive” smoking causes cancer.

Like 50 million other people in this country, he eventually kicked the habit. But then he sued the tobacco companies — and recently received a jury award of $12.5 million — claiming cigarettes are so addictive that quitting is all but impossible.

Yes, it’s hard to imagine a less sympathetic party, until you look across the courtroom at the representatives of the tobacco industry.

“It’s an enterprise of death. They kill people for money, bottom line,” Scott Schlesinger said.

Schlesinger is a Fort Lauderdale lawyer who specializes in fighting tobacco companies. He would say that.

But juries all over Florida are realizing it’s not far from the truth, shifting some of the legal blame from the weak wills of smokers such as Rizzuto to cigarette makers.

If this trend spreads across the country, which is starting to happen, Schlesinger said, it could help sink tobacco sales in the United States.

And that, it’s clear, is exactly what the industry deserves.

It’s happening in Florida because of a 2006 state Supreme Court decision that threw out a class-action suit that included Rizzuto and thousands of other smokers, but agreed with their claims that cigarettes are addictive, cause cancer and are defective and dangerous.

That means when Rizzuto returned to court, his lawyer could focus on showing how his client had been caught up in the scheme to pitch a lethal product.

Tobacco companies have known cigarettes were deadly since the late 1950s and lied about it for decades, said Michael Cummings, a former public health official in New York who testified for Rizzuto and against Philip Morris USA and the Liggett Group; it’s all in the companies’ internal memos, which have been available publicly for several years.

The companies provided more legal ammunition with some of the most cynical marketing and manufacturing methods in American history.

In 1954, responding to the first studies that linked cigarettes to cancer, Liggett touted the new filters on L&Ms as “just what the doctor ordered.”

With Marlboros, Philip Morris pioneered the process of adding a form of ammonia that reduced the harshness of smoke, allowing addicted customers to inhale more deeply and become hooked more securely.

It’s not quite a slam dunk, but smokers in Florida have won about 70 percent of the 100 or so suits filed against tobacco companies since the Supreme Court’s decision. More recently, smokers have prevailed in Massachusetts and New York.

There’s a finite number of good candidates to file such suits. In Florida, it’s the roughly 4,000 former plaintiffs from the class-action suit. Elsewhere, they must be old enough to have started smoking before the dangers of smoking were obvious.

Also, what’s $12.5 million to an industry that clears billions annually? Not much, especially because it has a history of delaying payment until every appeal has been exhausted.

But the legal fees and jury awards, which now total more than $500 million, will keep adding up, Schlesinger said.

Their prices will be tacked on to cigarettes, which will mean fewer smokers, and less revenue, and less money for lobbyists and lawyers and, eventually, maybe, the death of the enterprise of death.

Dan DeWitt is a columnist for the Tampa Bay Times.

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