"They knew that nearly all cigarette smokers are addicted,"
Philip Gerson, of Gerson & Schwartz, told the jury in Frazier v. Philip Morris closing arguments. Eighty to 90% of smokers are addicted, he said. "But they so stubbornly deny the fact that Phyllis was addicted that we had to spend so much of your time bringing in expert witnesses" to describe the biology and pharmacology of addiction, such as Dr. Neal Benowitz, who had written a hundreds of peer reviewed articles and book chapters on nicotine addiction.
"The testimony and records demonstrate beyond any question that she was addicted," said Mr. Gerson, citing the testimony of the treating physician who tried repeatedly to help Ms. Frazier quit smoking.
As to awarding damages, Mr. Gerson said to the jury, "If you follow the evidence, the amount of the damages is going to be very large...extraordinary," including over $1M in past medical expenses, another $1M in future medical expenses, plus damages for lost wages, pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, loss of capacity for the enjoyment of life. Moreover, said Mr. Gerson, Ms. Frazier would have have lived another 20 years, but because of her illness probably would not live another ten. Mr. Gerson suggested that the total compensatory damages exceeded $25M.
Shook Hardy Bacon's Will Geraghty pointed out that Ms. Frazier's own testimony conceded that she could have stopped smoking in 1963 if she had tried hard enough and had the willpower. Instead, she only made "gestures" toward quitting smoking, until she quit for good.
Mr. Geraghty also challenged the conclusions that Mr. Gerson drew from Dr. Benowitz's testimony. According to Mr. Geraghty, Dr. Benowitz testified that the effects of nicotine are temporary, and the power of nicotine was not like addictive drugs, but was instead "a little more intense than caffeine." Moreover, Dr. Benowitz never met Ms. Frazier, and knew nothing of her particular behaviors.
Mr. Geraghty recounted Ms. Frazier's own testimony that she knew that cigarette smoking was dangerous, and she "probably just didn't think it would happen to me." She was not truly motivated to quit smoking, said Mr. Geraghty.