In his closing argument, Jones Day's Peter Biersteker reminded the jury in Piendle v. Reynolds, "It would be very easy for you to forget during Mr. Barnhart's closing that this case is about Mr. Piendle...and the choices he made, and make no mistake about it: they were choices."
According to Mr. Biersteker, Mr. Piendle was simply not addicted to cigarettes. He did not have withdrawal symptoms after he quit, such as sleeping trouble, anxiety, difficulty concentrating, weight gain, headaches or sore throat.
Moreover, said Mr. Biersteker, neither of the Piendles were committed to smoking. They never threw away their ash trays or their lighters; they never visited a smoking cessation clinic or tried hypnosis; they never obtained a prescription for a smoking cessation aid; and they never told their family or friends they were trying to quit.
"I submit to you," Mr. Biersteker told the jury, "that the plaintiff has not carried its burden of showing class membership."
Tobacco products are dangerous by nature, not by design, said Mr. Biersteker, and the tobacco companies' design efforts were aimed at increasing the safety of cigarettes. "Why would someone who makes a consumer product want to kill the consumer?" asked Mr. Biersteker. "That's just nutty. The objective was to make them safer."
Moreover, the plaintiff had failed to show that Mr. Piendle started to smoke or continued to smoke because of any cigarette ad. Instead, the witness testimony indicated that he did not pay attention to ads or blame his lung cancer on cigarette advertising. "Ask yourself this," Mr. Biersteker challenged the jury: "If Mr. Piendle was a hapless victim of advertising, what was he doing smoking a women's cigarette like Virginia Slims?"
"There was plenty of evidence that, apart from the not-prudent statements, the tobacco industry cooperated both with respect to the design of their cigarettes and by publishing research." Even if information was concealed, that concealment was not the legal cause of his harm, because many pieces of evidence in the case showed that Mr. Piendle already knew that cigarettes were dangerous. If the tobacco companies had made additional disclosures, it would not have affected his behavior.