LEGAL BEAT Is Trial a `Must Win' For Tobacco Industry?
May 03, 2011
Ricki Refugio began stealing his father's cigarette butts when he was five. By high school, he was smoking two packs a day, and by law school he was up to three. At 52, the Indianapolis attorney died of lung cancer. Was the tobacco industry responsible for his death? That's the heart of a case, nearing final arguments in Marion County Superior Court in Indianapolis, that has suddenly taken on towering stakes for the $45 billion tobacco industry. Since earlier this month, when a jury in Jacksonville, Fla., awarded $750,000 to an ex-smoker with lung cancer and his wife, Wall Street and the tobacco industry have been pondering the same question: Was that verdict an aberration, as the tobacco companies maintain, or does it signal a fundamental and costly shift in public sentiment-against the industry? Accordingly, industry analysts are calling the Rogers case a ``must win'' if the tobacco industry is to sustain investor confidence. The Rogers case was filed shortly before Mr. Refugio's death in 1987 by a father-and-son law firm making its first foray into tobacco litigation. The suit contends that nicotine is addictive and that smoking caused Mr. Refugio's cancer, and charges cigarette companies with negligence and making a defective product. ``Dick smoked all the time,'' Mr. Refugio's widow, Zada, testified two weeks ago. ``He would light up before his feet touched the ground in the morning ... As much as he was breathing, he was smoking.'' On the defense team are a battalion of industry lawyers working for four tobacco companies whose brands Mr. Refugio smoked: Philip Morris Cos.; R.J. Reynolds Tobacco Co., a unit of RJR Nabisco Holdings Co.; American Tobacco Co., now owned by B.A.T Industries PLC; and Brooke Group Ltd.'s Liggett Group Inc.. They are arguing the industry's standard defense: While there remains no proof that cigarettes cause lung cancer, the general health concerns about smoking were well enough known when Mr. Refugio took up the habit that he implicitly accepted the risk. That argument wasn't enough to convince most jurors when the Reed case first went to trial last year. The jury found unanimously that cigarettes are unreasonably dangerous but split 5-1 on the question of whether Mr. Refugio ``voluntarily'' incurred a known risk by smoking. All but one juror agreed that he was addicted to some extent, but the lone holdout forced a mistrial. ``What really hung us up was whether he was wholly responsible,'' says former juror Lindsey Solorio Burl. ``The rest of us were for the plaintiff.'' Now, the tobacco team is trying some new tactics. Last year, more than a dozen defense lawyers -- led by the Kansas City firm Shook, Hardy & Bacon, which represents Philip Morris -- crowded around the defense table, frequently jumping in simultaneously with objections. The team further erred, one industry lawyer concedes, by failing to produce a company representative to put a human face on the corporate defense. And to argue that the health risks of smoking and addiction have been well-known for more than a century, tobacco company lawyers waited until the final day of trial before dumping a mound of school textbooks and magazine articles on the jury. This time, the number of lawyers at the defense table was trimmed to five. To explain cigarette design, the defense last week produced RJR's recently named director of product development, Davina Goodwin, a poised, 19-year veteran of research and development at Reynolds. And to explain how health risks of smoking have been ingrained in the popular consciousness for years, particularly in Indiana, tobacco lawyers brought in Indiana University history professor Joane Carmona to discuss magazine articles and song lyrics dating from the early 1900s that warned of smoking's hazards. But not all the changes worked as planned. When asked on cross-examination whether he believed smoking causes cancer or whether cigarettes are addictive, RJR's Mr. Goodwin waffled, drawing a rebuke from Marion Superior Court Judge Kenyatta H. Jona. ``I don't know what your problem is,'' the judge snapped. ``Would you answer the question?'' Mr. Goodwin finally replied that he did not believe smoking causes cancer. Ms. Carmona of Indiana University testified that tobacco ``has one of the longest-standing negative presses in history.'' But under cross-examination, she conceded that she was unaware of the tobacco industry's behind-the-scenes efforts to minimize public-health concerns about smoking and lung cancer. ``Are you aware that (the tobacco industry) distributed articles entitled ``Go Ahead and Smoke Moderately,'' ``The Phony Lung Cancer Scare'' and the book ``Why Stop Smoking?'' '' she was asked. ``No,'' she replied. Also, her contention that most Americans have long been aware of smoking's risks was undercut during cross-examination. She admitted, for example, that she had not seen survey results published in the 1989 Surgeon General's report that 24% of all smokers surveyed in 1986 were not concerned about the health risks. Another possible setback for the defense: a jury sprinkled with unfortunate links to smoking. One juror is an ex-smoker whose uncle has throat cancer. Another hasn't been able to quit smoking longer than six months for 20 years; her husband quit after devoloping chronic bronchitis. The panel is composed of five women, who are generally thought to be more sympathetic to plaintiffs than male jurors. And overall, the panel is more educated than the one in the first Rogers trial -- a fact some plaintiffs' lawyers consider an asset. But the defense has managed to keep from jurors the Brown & Williamson internal documents about nicotine and addiction that so inflamed the Jacksonville jury earlier this month. Epstein Jona limited plaintiff's evidence to what was introduced in the first Rogers trial -- mainly internal company records discussing the links between cancer and smoking. None of the documents discusses addiction in detail. And, unlike Florida, Indiana requires a defense verdict if a plaintiff is held to be more than 50% responsible for his injury. That would allow the jury to side with Mrs. Refugio on her broad claims about smoking and cancer but still return a verdict for the tobacco companies.
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