10 juin, 2005 01:09
First-Brand Addiction Theory Tested in Case Against Tobacco Company
Andrew Harris
New York Law Journal
06-08-2005
A Nassau County Supreme Court jury Monday began hearing evidence in a trial over whether the tobacco company that made the brand of cigarettes a woman first smoked more than 40 years ago bears responsibility for her lung cancer -- even though she quit that brand after only four years
The plaintiff's lawyer, Mark R. Bower of Manhattan, said the case of Rosen v. Brown & Williamson Tobacco Corp., No. 018589-1997, marks the first time the first-brand addiction theory will be put before a jury.
He called it "a unique theory" that overcomes the problem that his client switched brands more than four decades ago.
Contrasting his case with traditional market-share theories of liability in which smokers have attempted to prove that every cigarette maker bears some responsibility for their cancer -- and that the percentage of that liability corresponds with each company's proportionate share of the market -- Bower said that in his case he does not have to prove which brand caused his client's cancer.
Harold K. Gordon, a Jones Day partner in Manhattan, is Brown & Williamson's lead trial attorney. He disagreed with Bower's assessment of the first-brand addiction theory.
"I'm not sure it's novel," Gordon said. "Certainly there have been dozens of cigarette cases around the country where plaintiffs had claimed that their first brand addicted him or her."
STARTING WITH LUCKY STRIKES
Selma Rosen, who lives in East Norwich, N.Y., started smoking Lucky Strikes when she was 11. At that time, the cigarettes were manufactured by American Tobacco Co., which was acquired by Brown & Williamson a decade ago.
Although she quit smoking Luckies after just four years, Rosen did not stop smoking until 40 years later, by which time she had developed lung cancer. In 1995, she had part of a lung removed.
In 1997, Bower filed suit on her behalf against Brown & Williamson alleging that Rosen's addiction was principally attributable to her selection of Lucky Strikes when she began smoking. At trial he will attempt to prove that the defendant's predecessor had failed to warn of its product's dangerous propensities and that the product itself is defectively designed.
A tobacco industry conspiracy allegation was dismissed on appeal.
Bower, a Manhattan solo practitioner, has argued that American Tobacco was like a heroin pusher. He added that, like a pusher, the tobacco company that got Rosen hooked on cigarettes cannot now disclaim its responsibility for her addiction, even if she switched brands many times over.
That Rosen "changed pushers from time to time" does not obviate liability for the tortfeasor that created the addition, he said.
Joining Bower at the plaintiffs table are a pair of Little Rock, Ark., attorneys, Gary Holt and Russell Marlin of the law offices of Gary Eubanks.
While Bower did not include a specific demand for damages in his complaint, he referred to his co-counsel and said, "This team has hit Brown & Williamson in Arkansas for $19 million. We're hopeful we can surpass that in Nassau."
Operating on a different theory of liability in that 2003 trial, the Eubanks attorneys won a jury verdict of $15 million in punitive damages and $4 million in compensatory damages. The punitive award was later reduced to $9 million and it was paid by the defendant, he said.
Gordon -- Brown & Williamson's lawyer -- disputes the fact this cigarettes turned Rosen into an addict, asserting that she quit for a month during the 1960s and again for six years during the 1980s. That ability to quit, he said, vitiates his client's liability.
Gordon also challenged the assumption that Rosen's first choice of cigarettes should leave his client wholly responsible for all the damage caused by the other brands she later smoked.
"The perverse part," he said, "is she smoked our brand for about four years in a very minimal amount."
In that context, Gordon said, holding one manufacturer liable for all subsequent damage is neither novel nor justifiable under the law.
"We do not think there is legal support for holding us accountable for all brands after 1959," he said.
American Tobacco and its successor, Brown & Williamson, "had no legal duty [to Rosen] once she was not using our product," Gordon added.
Assisting Gordon at trial are Jones Day partner Daniel Russo and Chadbuorne & Parke partner David Wallace. Jones Day, Gordon said, is regular counsel to R.J. Reynolds Tobacco Co., which acquired Brown & Williamson two years ago.
Rosen's psychiatrist is expected to testify in support of her addiction claim. Gordon said that he may or may not present a rebuttal witness, depending on the testimony of Bower's expert.
Rosen's Nassau jury is comprised of two men and four women, plus three women alternates. Racially, the jury includes two black women and one Asian man.
Hearing the trial is Justice Ute Wolff Lally.
Gordon, who noted that the tobacco industry usually prevails in these cases because of the public's "long-standing awareness of dangers of smoking and the ability to quit," said he is satisfied with the jurors. "Nassau juries are smart and sophisticated," he said. "They will see the evidence and find no liability. At least I hope they will."
