At trial against R.J. Reynolds over a Florida’s smoker’s death, Emily Baker’s strong closing on responsibility led the jury to hand down a rare $0 damages verdict, despite linking Reynolds and its cigarettes to his fatal cancer.
Wayne Redburn, 53, died in 1995 after more than four decades of smoking. His family contends Reynolds's part in a long-running conspiracy to hide the dangers of smoking hooked Redburn to the company’s cigarettes and caused his death from lung cancer.
However, in closings, Baker, of Jones Day, spotlighted evidence she said showed Redburn was never interested in quitting smoking in time to avoid any impact it might cause.
“Comparative fault is not some global comparison of everything Mr. Redburn did over the course of his life versus everything Reynolds did,” Baker said when discussing the relative responsibility of the two. “So, the issue here is, did... something Reynolds did impact Mr. Redburn? If it didn’t, then it can’t be considered for this question.”
Baker clearly framed the issue to blunt evidence that Reynolds and other tobacco companies had worked together to undercut smoking’s hazards. But Redburn, she argued, was not simply taken in by tobacco marketing and devoid of free will. “Just because Mr. Redburn was born in 1942, that does not mean that he would smoke his entire life and that’s just the way it was,” Baker said, noting millions of smokers had quit throughout the decades Redburn continued to smoke. By contrast, Baker said, Redburn went years without ever saying he wanted to quit, despite evidence that he knew the dangers of smoking as far back as the 1960s.
Baker reminded jurors that an agreement used by plaintiff’s addiction expert when working with smokers trying to quit made clear that the smoker was “fully responsible” for the decision to stop smoking.
“‘I am fully responsible:’ There’s no asterisk there that says that you’re only partially responsible if you were born in Mr. Redburn’s birth cohort,” Baker said. “If you know you should quit, like Mr. Redburn did, and you don’t want to, that’s fine… but you’re 100 percent responsible for the consequences of that smoking.”
Baker said the plaintiff’s attorneys acknowledged Redburn bore some responsibility, but she pushed back at the suggestion that he be held 5-10% responsible. “Personal responsibility for one’s own health is not a negotiable term,” Baker said. “I ask you to recognize personal responsibility.”
Baker’s cogent closing led jurors ultimately to assign 75% of responsibility to Redburn and issue a $0 damage award, despite linking Reynolds to Redburn's cancer death.
Email Arlin Crisco at acrisco@cvn.com.
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