Rod Smith's fire-breathing, jury-searing performance yesterday convinced a Gainesville jury to award $5M damages to the survivors of Maurice "Mickey" Soffer late last night. The jury found RJR liable on negligence and product liability claims, but ruled in favor of the defendant on concealment and conspiracy claims. Because the the concealment and conspiracy claims failed, the jury did not reach the issue of punitive damages.
Smith told the jury in his opening statement, "In the years before the meeting in New York [when the Tobacco companies secretly met in 1953 at the Plaza Hotel to plan their public relations campaign], there was a teenager in high school in Philadelphia. His name was Mickey Soffer, and he joined the rest of his generation there in high school beginning to smoke cigarettes R.J. Reynolds cigarettes. Indeed, R.J. Reynolds' planned campaign of deception and denial was waged throughout Mickey Soffer's entire adult life -- right up to the final months in which he died after a horrible struggle, and his eventual death, from lung cancer."
"In 1994" Smith continued, "the tobacco executives of this country met again all together. This time they weren't behind closed doors meeting in secret. This time they were in front of the United States Congress testifying to the American people. This time they were swearing under oath to God and the country that what they were saying they believed. This time in 1994 before Congressman Waxman the question was whether or not they believed their product to be addictive...Ladies and gentlemen, in this courtroom we will prove to you that they not only knew that nicotine was addictive, they had been counting on it as a way to market their product and keep people smoking cigarettes for more than 40 years. There was no surprise in the question about the addictiveness of nicotine, and we will prove in this courtroom that they lied about it."
For R.J. Reynolds, Randy Baringer (Womble Carlyle) told the jury, "This case is ultimately about one thing, and one thing only, and that is Maurice Soffer and the choices he made about smoking cigarettes. It's about why he chose to start, it's about why he chose to continue to smoke cigarettes for as long as he did, and it's about why he chose to quit when he finally did."
Baringer warned the jury that "Mr. Smith...ignored the crucial question of, did any of what he showed you or any of what he talked about actually affect Maurice Soffer in terms of the decisions he made about starting to smoke cigarettes or continuing to smoke cigarettes or to quit smoking cigarettes. But all of the questions that you're going to be asked at the end of this case when you get that verdict form are going to focus precisely on Mr. Soffer, and only Mr. Soffer. And as you will hear it's the plaintiff's burden of proof in this case to establish a link between the conduct or the documents or whatever they allege Reynolds did wrong and his decision to continue to smoke, which ultimately led to his developing lung cancer."
In his closing argument, Smith told the jury, "They knew what was in tobacco smoke, and they knew they couldn't get rid of it, but they told the American people otherwise...The strategy was this: Deny -- no matter what the science, no matter what the epidemiology, no matter what the surgeon general says, no matter what the AMA says, no matter what the scientists and the universities find -- just keep denying -- so you can keep selling these cigarettes store as long as we can sell them, as many as we can sell, we'll come up with new ideas to market this product -- just keep denying."
"Folks, Reynolds says that everyone knew about addiction and smoking cigarettes hazards. Apparently everyone on earth, that is, except, well, R.J. Reynolds and their co-conspirators. And I don't expect today that they will at long last come forward and say, 'By the way we were blatant liars in the 1950's, 1960's, 1970's, 1980's, 1990's -- and by the way we did it for the purpose of having people rely on our blatant lies to their detriment.'"
"We know at least seven people who must not have known about the addictiveness of nicotine not all that many years ago," Smith said, and then re-played the 1994 tobacco executive testimony before Congress. "Can you believe it?" Smith continued, "They brought a historian who said everyone in the world knew about addictiveness. Well I picked seven who didn't."
"Ladies and gentlemen, they are going to try to make this case about one thing: they're going to say it's about Mickey's poor choices. Well that's untrue. First, both of our experts recognize that an addicted smoker makes a choice, has a responsibility to make choices. Nobody says they don't. But they also say it is not a free choice."
In his own high-energy closing, Baringer asked the jury, "What evidence was there that advertising had anything to do with why Mr. Soffer started to smoke cigarettes or continued to smoke?...He took discount cigarettes from his mother...parental influence is a strong indicator of whether someone will start or continue to smoke, and Mr. Soffer's parents smoked. Peers are a strong influence on whether someone starts to smoke," and not one witness testified that they were aware of any way in which advertising had influenced Mr. Soffer.
Moreover, the development of filtration could not have influenced Mr. Soffer's decisions, said Baringer, because Mr. Soffer smoked unfiltered cigarettes, and even tore the filters off of filtered cigarettes. "The whole story that they tell you about filtration is all about other people, because ladies and gentlemen it has nothing whatsoever to do with Maurice Soffer...You want to talk about a smoke cigarettes screen? This is an irrelevant side show that they spent all kinds of time with Dr. Burns talking to you about when they know full well it had nothing to do with Maurice Soffer."
In his closing rebuttal, Smith pounded home his message, "This case in the end is about one thing -- one thing only: -- was he addicted. Because after that, it's an easy answer for you. And every company should have the obligations in every board room not contrive and connive in a way that they can lie for fifty years to sell their product to the people they know that are most vulnerable: the addicted and the adolescent. Those ought to be the people they try to help."
The jury found that Mr. Soffer's addiction to online cigarettes was the legal cause of his death, and that RJR's negligence and defective products were also a legal cause. The jury allocated 40% of the fault to R.J. Reynolds, and 60% to Mickey Soffer, and awarded $1M in compensatory damages to Mr. Soffer's widow, Lucille Soffer, and $2M each to Mr. Soffer's two children, Rochelle Soffer and Joseph Soffer, for a total compensatory damage award of $5M. The total award will be reduced to $2M based on the fault allocation.
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