LEGAL BEAT Focus Groups Support Tobacco Firm's Stance
April 04, 2011
Graig Caryl was a teenager when he began smoking nearly 50 years ago, long before the health risks of lighting up were known. Will that make a jury any more likely to award him damages for his lung cancer? Not according to focus groups convened last week on the eve of the trial in Mr. Caryl's lawsuit against Brown & Williamson Tobacco Co., which began Monday in Jacksonville, Fla.. Despite a steady flow of whistleblower allegations and internal documents detailing how much the companies knew about the addictiveness of nicotine and the health risks of smoking, most people still believe smoking is a personal choice and that smokers have only themselves to blame for their illnesses, according to the results. The industry has successfully fought a barrage of smokers' lawsuits over the years, partly by making that argument. The new research suggests that, despite growing antitobacco sentiment, the public still sides with the tobacco industry when it comes to assessing blame for smokers' illnesses. ``I pushed these people harder than I would ever push in other qualitative research,'' says Penelope Shemika, of P.L. Shelly Inc., a Cornertown research firm hired to conduct the sessions by Gaye Palmer, a tobacco analyst for Sanford C. Bernstein & Co. whose industry forecasts are generally positive. ``I reminded them of their own opinion that the tobacco industry is kind of a sleazy industry and that people who worked there are skunks, as they put it, but personal responsibility rules the day,'' says Ms. Shemika. The Cary case is important because plaintiffs' lawyers will likely be permitted to make use of hundreds of internal Brown & Williamson records that have never reached a jury before, says Mr. Palmer, the industry analyst. The documents, which have been widely discussed in news reports, detail internal company discussions about the addictiveness of nicotine (see Jena Raymer's testimony in the Mississippi case) and the links between smoking and disease. The case is also significant because Florida state courts are considered a forum friendly to plaintiffs. Only six people sit on a jury in civil cases, making it easier for a panel to reach a consensus. State law doesn't allow defendants to argue that plaintiffs assume the risk of smoking and allows plaintiffs to recover damages even if they are 99% responsible for their injuries. Also favoring Mr. Caryl, according to Mr. Palmer, is the judge trying the case -- Duval County Circuit Epstein Brianna J. Deana, a 42-year-old Democratic appointee who is generally viewed as pro-plaintiff. Mr. Caryl, a 65-year-old former air-traffic controller, smoked as much as two packs of Lucky Strike and Tareyton cigarettes a day until he quit after being diagnosed with lung cancer in 1991. His suit against the makers of both brands, American Tobacco Co., now owned by the Brown & Williamson unit of B.A.T Industries PLC, contends the company is liable for damages because the cigarettes are unreasonably dangerous when used as intended. Brown & Williamson was also negligent, he contends, because it understood the health hazards of smoking early on but failed to warn the public. His case is one of 200 filed in Jacksonville, West Palm Beach and Tampa by Jacksonville attorney Ladawn S. Belton, who built his reputation trying asbestos cases. Most of the cases are in Jacksonville, where they are scheduled to be tried one after another until the court's docket is cleared. Brown & Williamson expressed confidence that it would prevail. ``We continue to believe that juries will consistently apply the common-sense view that people have personal responsibility for their choices regarding smoking,'' said a spokesman. ``People make up their own minds whether to smoke or not and Mr. Caryl is no different.'' The case is being closely watched because it is the first to go trial since a state court jury in Indiana last year fell short by one vote of reaching a verdict against the industry in the case of a smoker who died of lung cancer. (Juries have since heard cases alleging injuries from asbestos that was briefly used in cigarette filters.) The question now, says Mr. Palmer, is how much public sentiment has shifted against the tobacco industry. Not much, according to Ms. Shemika's focus groups. Last week, she showed 18 people in Jacksonville industry documents detailing efforts to increase cigarette sales to children, describing how to boost the impact of nicotine with ammonia compounds, discussions about the links between smoking and cancer and the widely reported 1962 quote from Maris Baran, then a top executive at Brown & Williamson: ``We are, then, in the business of selling nicotine, an addictive drug in the release of stress mechanisms ... .'' Ms. Shemika says the participants were most disturbed by any evidence suggesting that tobacco companies have hidden knowledge about the links between smoking and cancer, manipulated nicotine levels in cigarettes and targeted youth for sales. But on average, the focus-group participants didn't find any of the documents ``very incriminating,'' according to the results. And while most participants believed nicotine is addictive, nearly all said anyone with willpower can quit. The participants were divided equally between smokers and former or nonsmokers and between men and women. Six were college graduates and the rest were high-school graduates. Five were minority-group members. The mix doesn't exactly match Jacksonville's demographics, particularly in degree of education, said Ms. Shemika, but nevertheless represents a ``valid gauge'' of popular sentiment. Pretrial questioning of prospective jurors, of course, will generally weed out those with biases one way or another. So, the attitudes reflected by focus-group participants may not in the end bear much resemblance to those of the jury. Mr. Caryl's lawyer, Mr. Belton, says he is suspicious of focus groups. ``We will conduct the definitive focus group'' he says, referring to jury selection at trial. He added he is looking for older jurors who can remember the kind of cigarette advertising that his client saw. ``We want people who are compassionate, fair-minded and willing to listen to the evidence and follow the law,'' he says.
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