The plaintiff’s husband, Francisco Garcia Lopez, died of lung cancer at the age of 68 after smoking 3 packs a day for 42 years.
Edgardo [García Prado] testified that he “would tell [his father] to stop smoking every day and he would pay no attention.” Still another son, Orlando, testified that, when family members or friends would tell his father that smoking was harmful, he would say “that we all have to die some time from something . . . . He always had the same answer.” Decedent’s brother, Demetrio García Lopez, testified that he had been telling his brother that smoking was harmful since about 1970. Demetrio said he did not know his brother’s perception of the health risks of smoking, noting, “[t]he thing is that he would not pay any attention to anybody, so it just didn’t matter to him.”
Nevertheless, the family sued for “failure to warn” on the grounds that Lopez couldn’t have been expected to know smoking was dangerous. In support, they offered the “expert” testimony of Marly Ferrer Montalvo, who had a bachelor’s degree in history and had written a thesis on Haiti, but she had done a few months of photocopying tobacco advertising for a professor. Thankfully, neither the district court nor the First Circuit bought this, and the case was dismissed on summary judgment, but Alvarez’s lawyer, Herbert Muriel, won a wrongful death jury verdict on this sort of concocted theory in September 2002 before it was thrown out of court. (Irene Cruz-Vargas v JTI Japan Tobacco INT, No. 00-2334 (D.P.R.), aff’d by Irene Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271 (1st Cir. 2003); Virginia Prado Alvarez v. R.J. Reynolds Tobacco Co., No. 04-1695 (1st Cir. Apr. 21, 2005)).
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