With widespread knowledge of smoking’s dangers today, plaintiffs’ attorneys in tobacco cases often face a high hurdle when arguing why a smoker from decades ago may not have understood smoking’s risks, or quit in time to avoid disease. That hurdle can be even be even higher when the smoker at the heart of the case started as an adult. But in a recent trial against R.J. Reynolds, Eric Rosen’s memorable rebuttal on closings overcame those issues to help key an 8-figure win for the family of a woman who began smoking in her 30s.
Janice Hamilton died of lung cancer in 2002, after 35 years of smoking. Her family claims R.J. Reynolds, makers of the cigarettes Hamilton smoked much of that time, conspired to hide the dangers of smoking.
Crucial to the case was the fact that Hamilton did not begin smoking until the 1950s when she was 31 years old, and the defense argument that she was never interested in quitting in time to avoid her cancer.
But Kelley | Uustal’s Eric Rosen argued Hamilton was duped by a tobacco industry scheme to undercut smoking's dangers and promote the filtered cigarettes like Hamilton smoked as safer alternatives to their traditional counterparts. And he contended that a combination of nicotine addiction and tobacco marketing kept Hamilton from quitting.
In closing rebuttal, Rosen memorably compared the warnings about cigarettes through the latter part of the 20th century to a snowflake in a snowstorm of tobacco marketing — marketing he said that built a culture of smoking. “The industry was spending, during this time, more in one day to promote cigarettes than the government was spending in an entire year to warn about the hazards,” Rosen said, before showing a video of a heavy winter snowstorm. “If all that snow is the cigarette advertising and the marketing, and the billions and billions of dollars that they’re spending,” Rosen said, “you try to catch and pick out a snowflake and try to catch and pick out the 30 articles (on smoking’s dangers) in Reader’s Digest. Try to find a sporadic newspaper article. You can’t. And they made sure of it.”
Rosen also contrasted Reynolds’s conduct in selling cigarettes the company knew could cause cancer with the hypothetical conduct of other manufacturers. “A car company knows that the tire that they make is defective, right? What do they do with that defective tire that is causing death?” Rosen asked. “They recall it, right? You get it off the market!”
“When you know your company has these high levels of carcinogens, you don’t start tinkering with it and selling the poison to human beings.”
Rosen’s argument keyed a $10.6 million total verdict in the case, including $6 million in compensatories and $4.6 million ultimately awarded in punitives.
Email Arlin Crisco at acrisco@cvn.com.
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