Former Dancer May Sue R.J. Reynolds, 3rd DCA Says
He had smoked since age 10 and had shortness of breath as a teenager that interfered with his playing sports, being in his high school band and his professional dancing in later life. It was common for him to experience heavy colds and what he referred to as a "smoker's cough."
Rothenberg noted Belanger attributed his parent's deaths to smoking—his mother from lung disease in 1967 and his father of heart disease in 1975.
She also disputed the medical evidence.
"Mr. Belanger waited so long to file his lawsuit, most of his medical records have been destroyed," Rothenberg said. "We will never know what Mr. Belanger told his doctors or what they told him."
Addressing the dissent, Emas said that had Belanger sued the day he quit smoking, the lawsuit "surely" would not have survived a motion to dismiss.
"You can't sue for a cold," said Jim Ferraro of the Ferraro Law Firm in Miami, which represents Belanger, adding the plaintiff's 1981 "killing you" comment referred to the exacerbation of his cold.
Ferrari trial attorney Jeffrey Sloman if the Ferraro Law Firm called Rothenberg's dissent absurd.
"A cause of action doesn't start until you have a diagnosed disease," he said.
Benjamine Reid and Amy Furness of Carlton Fields in Miami, attorneys for Reynolds, did not respond to requests for comment by deadline.