The Schlesinger Law Firm's Steven Hammer told the jury that Leonard Budnick was a diabetic who smoked a pack a day of Camels for 30 years. Even after Lenny Budnick was diagnosed with lung cancer and emphysema, and required oxygen to breathe, he still smoked. Mr. Hammer recited a long list of techniques Mr. Budnick had tried to quit smoking, but none were successful. Mr. Budnick died in 1996 at age 52.
If the case was about choice, said Mr. Hammer, Mr. Budnick did not choose to die as a young man when he was barely 50 years old. "More likely than not he was addicted, and more likely than not that addiction led to his death from lung cancer."
Mr. Hammer predicted that the defense expert on addiction, Dr. Spodak, would testify that Mr. Budnick was not addicted. According to Mr. Hammer, Dr. Spodak had testified in hundreds of cases, and had not once concluded that a person was addicted. Even if Dr. Spodak was told that a person had smoked six packs per day for 30 years, or continued smoking through a hole in their throat due to a tracheotomy, Mr. Hammer said, Dr. Spodak would still not conclude that the person was addicted.
For the defense, Jones Day's Kevin Boyce told the jury, "Cigarettes don't jump out of a pack and light themselves. Every cigarette from every pack is a choice...every puff is a choice...There is a person in between smoking and disease. A you. A me. A person with free will...that's the cause of his smoking, the cause of his disease."
Mr. Boyce told the jury that Mr. Budnick was a musician, the lead singer in a band. "It should be no surprise that Mr. Budnick smoked. Many musicians do...This is not someone who was tormented by his addiction. He liked smoking. He liked everything about it...One quit attempt in eleven thousand days -- that's not an addiction."
The question, said Mr. Boyce, was whether the jury would excuse Mr. Budnick, and reward Mr. Budnick's son Jason with money, for the choices that Mr. Budnick made for more than 30 years. In this country, said Mr. Boyce, you are allowed to smoke. "Not everybody smokes because they are unable to stop, and Mr. Budnick is a prime example of this."