Plaintiff Wins Phase 1 of Jewett Tobacco Trial

Posted by msch on May 13, 2011 2:58:00 PM

Jim Matthews Woody Wilner Peter Biersteker Roger GearyJewett v. R.J. Reynolds (Jacksonville, Florida)

A Jacksonville jury ruled yesterday that Barbara Jewett's addiction to cigarettes containing nicotine was the cause of her COPD (chronic obstructive pulmonary disease), and Ms. Jewett's COPD was the cause of her death. The jury also rejected the cigarette maker's affirmative defense that Ms. Jewett should have known before May 5, 1990, that she had COPD.

In his phase 1 closing argument, attorney Jim Matthews, appearing in his first Engle-progeny trial, walked the jury through voluminous conflicting testimony as to whether Ms. Jewett knew or should have known that she had COPD before May 5, 1990 -- and therefore her claim would be barred by the statute of limitations. Mr. Matthews concluded that the defense evidence could largely be attributed to poor recollections, and that  in order to believe the defense case, the jury would have to be convinced that Ms. Jewett had a condition so severe that she should have self-diagnosed, but then kept it a secret from her doctor and family for at least five years -- "which probably isn't the case."

During his closing on behalf of the plaintiff, Wilner Hartley's Woody Wilner argued that Ms. Jewett's addiction could be determined not only from the evidence that Ms. Jewett wanted to quit yet did not, but also from the evidence that the Tobacco industry had a the intent and ability to get her addicted, as shown by their own confidential documents, which included statements such as, "High profits are...related tot he fact that the customer is dependent," and "If the exit gate...should suddenly open, we could be out of business overnight," and "A cigarette is the perfect type of leaves one unsatisfied...Let us..hope that they, our consumers, continue to remain uinsatisfied. All we we would want then is a larger bag to carry the money to the bank."

On behalf of R.J. Reynolds, Peter Biersteker (Jones Day) reminded the jury that the defense did not need to prove that Ms. Jewett was diagnosed with COPD before May 5, 1990. Even if she was not diagnosed, the evidence showed that she both knew and should have known that she had COPD, including numerous statements by Ms. Jewett to her doctors nothing that she had had COPD since the 1980s, and Ms. Jewett's own statement in an interview televised by PBS. By 1995, doctor's characterized her COPD as "severe." 

"This was not an isolated slip of the tongue," said Mr. Biersteker. "There were ten different medical records from ten different medical professionals recording Ms. Jewett's patient history over a four year period [from 2001-2005]."

Representing Lorillard, Roger Geary (Shook Hardy Bacon) told the jury that whether Ms. Jewett was addicted depended on whether she was in control of her decisions, and, according to Mr. Geary, Ms. Jewett was in control of all aspects of her life, including smoking. Ms. Jewett reduced her smoking when she wanted to, and she smoked on and off.

Phase 2 of the trial is now underway. CVN is webcasting the Jewett v. R.J. Reynolds tobacco trial live.

Topics: Toxic Torts, Jewett v. RJR, Products Liability, Engle Progeny, Tobacco Litigation