Tiny Plaintiff Verdict in Kirkland Tobacco Trial

Posted by msch on Feb 10, 2011 9:18:00 PM

Willie Gary and Manny Socias and Stephen KaczynskiJones Day's Stephen Kaczynski won big for R.J. Reynolds today in Kirkland v. R.J. Reynolds when a Tampa jury awarded just $100,000 in compensatory damages to smoker Leroy Kirkland, and apportioned 90% fault to Mr. Kirkland, and 10% fault to R.J. Reynolds. The plaintiff had requested compensatory damages of $96,250,500.

Mr. Kirkland started smoking when he was eleven years old. His larynx and part of his tongue were removed as a result of laryngeal cancer.

In his closing argument on behalf of Mr. Kirkland, Manny Socias of the Gary Law Goup told the jury, "That's the defense you've heard here today, [that we live in] a sea of carcinogens. Asbestos where he worked. Alcohol whenever he had a beer. Viruses whenever he walked outdoors. Anything, in the sea of cancer, caused, according to the Tobacco industry, Mr. Kirkland's cancer. Anything...air pollution...They're going to any other cause of cancer, anything that they can come up with that causes cancer -- except the obvious...They come here and tell you that the cause of cancer is anything and everything except the fact that for forty years -- forty years! -- Mr. Kirkland, day-in and day-out, bathed his larynx in R.J. Reynolds products. R.J. Reynolds smoke. Forty years -- that, they don't mention. They want to talk about an occasional drink, a possible virus, asbestos, everything under the sun...except Mr. Kirkland puffing R.J. Reynolds cigarettes -- 30-60 cigarettes a day, every day of his life, right up until the day he started coughing up blood."

"Now after the Tobacco companies spent half a century...spreading lies about their product...they come here into court and...they argue that it was Mr. Kirkland's choice to begin smoking. They gloss over the fact that that happened when he was eleven years old. And then they blame him for his choice to continue smoking. In essence, they tell you that he was stupid enough to buy their products, and now whatever happens is his problem."

Attorney Willie Gary of The Gary Group spoke to the jury next. Mr. Gary told the jury that the tobacco industry was responsible for "senseless killings. You could stop it. You're going to have to be bold. Courageous. But you can do it. It's what you're gonna have to do. Because that's the only thing -- can you imagine? 450,000 senseless killings -- all because of the love of money! The dollars! Stuffing their pockets! They have the cleverest -- to put together what they put together here today. And it's hard -- it's tough! They have the best of lawyers. And you've seen their experts. They've gotten the best!"

"Mr. Kirkland can't even breathe through his nose...He had his voice box cut out. Tongue partially cut off. Because of these defendants and their greed! And that's what it is, members of the jury. 440,000 working, patriotic Americans died. Just last year. In one year...all because this defendant, and the tobacco industry, was greedy, and money-driven...You know what has gone down over the last 50 years. The American people, including Mr. Kirkland, haven't been treated right by these people. They haven't played fair! Now if I make a decision, I make it. If I perish let me perish, if it's my decision. But don't lie and cheat and mislead and misinform the little people, innocent people, voiceless people. It's not right, and you know it's not right...Mr. Proctor said...This was the largest and deadliest conspiracy in the history of America..."

For the defense, Jones Day's Stephen Kaczynski told the jury that this case was about Mr. Kirkland and the choices he made. Mr. Kaczynski listed some of the exhibits, ads, and memos that were presented in the trial, but related to Philip Morris, not R.J. Reynolds, and had nothing to do with Mr. Kirkland or what happened in Tampa, Florida.

According to Mr. Kaczynski, the "Frank Statement" was not a big deal. It only ran once. "Frank Statements" were common at the time, and the people who saw it were frightened. And in any case it had nothing to do with Mr. Kirkland.

The Center for Tobacco Research (CTR) was not a front organization, said Mr. Kaczynski, but funded real research that related smoking to heart disease, lung cancer, and addiction. But Mr. Kirkland never heard of the CTR.

Mr. Kacyzinksi told the jury that nicotine levels were not manipulated to maintain addiction, but were investigated to develop safer cigarettes -- to develop a low tar cigarette with nicotine levels high enough so that smokers would not increase the amount of tar ingested, but low enough to not aggravate an existing addiction.

Nor were the dangers of smoking any secret, said Mr. Kaczyniski, as he listed historical documents using terms like "addiction," "addict," and "drug," used almost a hundred years ago. Mr. Kaczynski called the Waxman hearings a "political publicity stunt," and explained to the jury that the R.J. Reynolds CEO did not lie when he said that smoking and nicotine "clearly do not meet the classic definition of addiction" because there's no intoxication, which was an element of the classic definition, as compared to the more recently accepted definition. The RJR CEO's testimony might have been stubborn, said Mr. Kaczynski, but it was not a lie.

"Mr. Gary asked you for over $96M," Mr. Kaczynski reminded the jury. But by Mr. Kazynski's calculation, a lower number was warranted. "Mr. Kirkland lived life in the fast lane. He smoked, he drank, he smoked marijuana...Even if you decide that smoking caused that cancer, you've gotta also figure that drinking to the extent he did -- where he's ordered to stop drinking, and sent to an alcohol rehab program -- drinking to the extent he did, where your daughter comes and says 'Daddy, stop drinking" -- that certainly couldn't have helped. And smoking marijuana -- which he did as an adult, not as a child -- certainly couldn't have helped. Living life in the fast lane as long as he did certainly couldn't have helped."

"But he did contract a cancer," Mr. Kaczynski continued. "He was cured. He was able to return to work -- the same job, the same pay. He worked until he was 65, full-time, and part-time after that. Now he's retired...He has health insurance and prescription drug coverage, and will for the rest of his life. Yeah, his life is changed. He can't swim, he can't sing, he has restricted use of his left arm; thank goodness he's a right hander. He's on pain medication...but he beat the cancer...I would suggest that the evidence in this case, the facts of this case -- if you decide to award him anything -- suggest an award in the thousands, not in the millions."

Mr. Kaczynksi urged the jury to respect Mr. Kirkland's choices to smoke and to not smoke throughout his life, and not make him into a victim.

The jury found in favor of the plaintiff on all questions: Mr. Kirkland was a member of the Engle class, smoking cigarettes was a legal cause of Mr. Kirkland's laryngeal cancer, and R.J. Reynolds' deception was a legal cause of injury to Mr. Kirkland. However, the jury apportioned 10% fault to R.J. Reynolds, and 90% fault to Mr. Kirkland, and awarded $60K for past pain and suffering, and $40K for future pain and suffering, for a total of $100K in non-economic damages. This appears to be the lowest compensatory damages award for any prevailing Engle plaintiff so far.

The jury also found that punitive damages were warranted, so Kirkland v. R.J. Reynolds will proceed to Phase 2 tomorrow.

The jury psychologists will be working long nights trying to make sense of this unusual verdict. Counsel for both sides in this case gave some of the most audaciously powerful arguments that CVN has yet seen in an Engle tobacco trial. The jury seems to have embraced both the plaintiff's story on the defendant's culpability, as well as the defendant's story on the plaintiff's injury and autonomy.

Watch CVN tomorrow for the punitive damages phase.

CVN is webcasting Kirkland v. R.J. Reynolds live.

Topics: Engle Progeny, Kirkland v. Reynolds, Tobacco Litigation