Big Tobacco — Up In Smoke

The law firm Searcy Denney put a dramatic end to Tobacco’s eight-case winning streak today by reeling in an $80 million verdict in Webb v. R.J. Reynolds, in Bronson, Florida. Although Tobacco has won eight of the last nine cases, on average during that period they now have lost approximately $8M per trial.

I was there trying the case with my partner, David Sales. Here are some of my thoughts from “inside” the trial of a tobacco case.

This was a lung cancer (squamous cell) case resulting from a long history of addiction to cigarettes – RJ Reynolds cigarettes.

Our deceased client, James Horner, was diagnosed with lung cancer in December of 1991; he passed away in March of 1996 at age 78.

Although Mr. Horner tried to reduce his smoking when his wife was diagnosed and died from small cell lung cancer caused by her smoking, he was never able to beat his addiction to cigarettes. In fact, Jim smoked 32 years before the first warnings were placed on cigarette packs in 1966. He’d been addicted for decades by that time. Mr. Horner continued to smoke through his diagnosis of COPD in 1991; he smoked through his wife’s diagnosis and their mutual struggle with her lung cancer and death; he smoked through his mom’s death from emphysema; he smoked through his son in law’s death from heart attack.

Our client’s family was special in so many ways. They were a very, very close family. James’ daughter, Dianne Webb (now 70), was the only family survivor. She is deaf. She had a profoundly disabled daughter at birth, who survived 13 years and never weighed more than 25 lbs.

Mr. Horner retired from a successful insurance job at age 48 (in 1965) and began caring for his profoundly disabled granddaughter, who required 24 hour a day care. Mr. Horner, who did believe RJ Reynolds and the tobacco industry when they continually stated that there was no proof that cigarettes caused disease, smoked while he held her, smoked while he fed her, and smoked while he bathed her.

No person who suffered the losses that our client suffered does so by choice. Cigarettes are, in fact, as addictive as has been reported and, maybe, even more. No one would choose to continue smoking through all that James Horner lost absent a hopeless addiction to nicotine.

I opened the case, but I never really knew the whole story behind Big Tobacco’s fraud, deceit and misrepresentations until I sat through, my partner, David Sales’ direct examination of one of our experts, Michael Cummings. It was truly eye opening. I never knew. I felt like I was seeing and hearing it all for the first time. You simply can not believe it happened in this country, in our lifetimes, under our noses. And to people we love.

RJ Reynolds called an historian, Gregg Michel, and an addiction expert, psychiatrist Wade Myers, MD. They simply did not stand a chance in the light of day. In order to fully grasp the horrible fraud worked upon the American public by the tobacco companies, you simply must:

  1. actually read the defense articles;
  2. do your own research into what articles were actually published in the newspapers during the relevant time period.

After hearing all the evidence, the jurors deliberated for approximately 1 – 1 ½ hours. I was concerned when they knocked to announce their verdict, feeling that it was too early. It was not. They had listened carefully and intently throughout the trial.

I suggested they award $4 million to my client’s daughter; they disagreed with me and they awarded $8 million. I suggested that James Horner was 20% at fault himself. The jurors disagreed and found James 10% comparatively negligent.

David Sales handled the initial part of the closing and masterfully presented the story of greed and avarice on the part of Big Tobacco. The jurors returned a punitive damage award of $72 million as a result of the evidence setting forth the tobacco industry’s fraud, concealment and misrepresentations over decades.

My favorite part of the trial was the testimony of the grandson. When defense counsel asked about him loving his mother and testifying so his mom could get money, he said, “I’m not doing this for my mom. I’m doing it for my grandfather.”


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