The tobacco companies won their seventh consecutive Engle trial yesterday when the jury in Vasko v. R.J. Reynolds found in favor of the defense.  Immediately prior to this, the tobacco companies also won Budnick, Warrick, Willis, Frazier, Campbell, and Rohr (plus a hung jury in Koballa, which is arguably an eighth defense win).

Rubio Ratzan’s Stuart Ratzan convinced the jury to answer yes to Question 1: “Was John Vasko addicted to cigarettes containing nicotine, and if so, was such addiction a legal cause of his Chronic Obstructive Pulmonary Disease (COPD)?”

But Jones Day’s Steve Geise convinced the jury to answer yes to Question 2, RJR’s statute of limitations affirmative defense: “Did John Vasko know, or should have known, on or before May 5, 1990, in the exercise of reasonable care, that he had COPD and that there was a reasonable possibility that his COPD was caused by cigarette smoking?”

CVN webcast Vasko v. Reynolds live.

Two additional Engle trials are underway now: Espinosa v. Philip Morris, in Miami, Florida, and Webb v. R.J. Reynolds, in Bronson, Florida.

In his closing rebuttal in the Vasko v. Reynolds Engle tobacco trial, Plaintiff attorney Stuart Ratzan aggressively challenged the R.J. Reynolds’ statute of limitations defense. “The same people who denied in 1990 that cigarettes caused COPD now say that they have proved that Mr. Vasko should known that he had COPD caused by cigarette smoking? Come on guys!” said Mr. Ratzan. “Not that he had a cough, but that he had COPD?” Mr. Ratzan suggested that some of the jurors might not even have known what COPD was before they heard this case. Mr. Vasko’s doctor had not concluded that Mr. Vasko had COPD, said Mr. Ratzan, so would a reasonable person have diagnosed himself with COPD caused by smoking based on a cough that he had had all his life?

Mr. Ratzan also challenged the defense’s attempt to proffer evidence that Mr. Vasko’s COPD was in fact diagnosed in 1980, rather than 1990, based on a hand-written date in a medical record that did not agree with the doctor’s transcription. “There is no 1980 diagnosis,” said Mr. Ratzan, “And everybody knows it. What there is is an attempt to convince you of something that everyone knows is not true. When are we going to have a different approach?” Mr. Ratzan suggested that the defense had withheld data from one of their experts, and had tried not to bring the jury the whole information.

Jones Day’s Steve Geise presented a fire-breathing closing argument to the jury, challenging every point of the plaintiff’s case. “The picture they painted,” said Mr. Geise, was that Mr. Vasko “knew nothing about the risks of smoking, was hopelessly addicted, and knew nothing about his personal symptoms until after May 5, 1990.” However, said Mr. Geise, this picture was destroyed by the facts and evidence in the case.

Mr. Geise called plaintiff expert Dr. Cummings “traveling road show” on a “war against tobacco” who recruits other experts to join his war. “His agenda is an invitation to you to ignore the facts in this case.” 

Mr. Geise said that Mr. Ratzan could put the tobacco industry’s “Frank Statement” on a poster, or project it on a wall, or blow it up as big as the courthouse, “but it doesn’t matter because John Vasko never saw it.”

CVN is webcasting Vasko v. R.J. Reynolds live.

In Vasko v. R.J. Reynolds, Plaintiff attorney Stuart Ratzan told the jury that John Vasko was born in 1941, started smoking at age 12, and smoked one-and-a-half to two packs of Lucky Strikes per day for 52 years, until he died of COPD (Chronic Obstructive Pulmonary Disease).

“It’s going to be uncontroverted,” Mr. Ratzan told the jury, “that he smoked that much, and he smoked until he died. And he could never quit. Period…He started with a nicotine patch and tried to quit smoking cigarettes, and he couldn’t do it, and…he tried several more times with Wellbutrin or Zyban [Bupropion]…that is an anti-depressant that has the effect of countering nicotine addiction. He tries with the gum and the patches, and he can’t make it happen. He ultimately gets diagnosed with cancer and he smoked to the day he dies, he was diagnosed with lung cancer.”

According to Mr. Ratzan, there was no disagreement that Mr. Vasko died of COPD, and the COPD was caused by smoking. Phase 1 of the trial would determine whether Mr. Vasko was addicted, and whether the addiction was the legal cause of Mr. Vasko’s COPD.

Representing R.J. Reynolds, Jones Day’s Steve Geise told the jury that Mr. Vasko smoked due to choice — he did not even try to quit before the 1980′s. Even heavily addicted smokers can stop smoking if they want to, said Mr. Geise.

Moreover, the statute of limitations would bar Mr. Vasko’s recovery based on membership in the Engle-class because Mr. Vasko should have known on or before May 5, 1990, four years prior to the original Engle filing, that he had a smoking-related illness. According to Mr. Geis, Mr. Vasko had symptoms in the 1980′s that eventually led to a diagnosis of COPD, and which Mr. Vasko attributed to smoking.

Watch CVN’s webcast of Vasko v. Reynolds.