The most successful defenses often go beyond simply arguing broken links in a plaintiff’s case. Typically, they also persuasively raise an alternate causation theory in which the defendant is not liable. At trial over a long-time smoker’s death, Kathryn Lehman’s closing argument masterfully employs that strategy to help clear one of the nation’s largest tobacco companies of liability.
Jacklyn Adamson died in 1992, about a year after being diagnosed with cancer. Her family sued R.J. Reynolds, contending she died of lung cancer caused by about a quarter-century of smoking, and R.J. Reynolds’ part in a scheme to hide the dangers of cigarettes.
The case is part of a Florida state court decertified class action that requires plaintiffs to prove nicotine addiction led to a smoking-related disease. A key to the Adamson case was whether she had primary lung cancer or another form of the disease that was unrelated to smoking and spread to her lungs.
In closings, King & Spalding’s Lehman, who teamed with Jeffrey Furr for the defense, argued there was scant evidence that would definitively support a primary lung cancer diagnosis. Lehman reminded jurors the plaintiff’s team presented only 43 pages of medical records surrounding Adamson’s cancer diagnosis and treatment — a small fraction of the records that would have been created.
None of the records presented, Lehman noted, included imaging, initial physical exam results, or a host of other diagnostic reports that could definitively establish the cancer’s origin. “She would have had these tests, but we don’t know what they showed, we don’t know how many masses they found, where those masses were, what they looked like,” Lehman said, counting off each point on her fingers for emphasis.
Moreover, Lehman pointed out that many of Adamson’s medical records went missing because Adamson’s father, the original plaintiff in the case, had shredded them, believing they were unnecessary. That, Lehman emphasized, allowed jurors to infer those records would have been unfavorable to the plaintiff’s case.
After highlighting the lack of evidence to support the theory of lung cancer, Lehman turned to building her alternate theory: that Adamson suffered from another form of the disease such as breast cancer. Lehman noted evidence that Adamson, who was diagnosed with cancer at 40, would have been extraordinarily young to suffer from lung cancer. “For someone in Mrs. Adamson’s age group, only 1 in 10,000 women will get primary lung cancer. They’re much more likely to get breast cancer,” Lehman said, adding that a woman of Adamson’s age and race had a 10-fold higher risk of developing breast cancer than lung cancer.
And importantly, Lehman said, Adamson’s symptoms argued that she suffered from cancer that originated outside her lungs. Adamson did not have many of the early breathing problems typically seen with primary lung cancer patients. Further, Lehman argued, Adamson’s weight gain was a tell-tale sign of another cancer origin.
“When you have a primary lung cancer, the cancer uses all of your body’s energy. So what happens is [lung cancer patients] start losing weight,” Lehman explained, noting that experts described the extreme weight loss as akin to a “wasting” away.
By contrast, Lehman told jurors, “The records show Mrs. Adamson didn’t have that. She gained 35 pounds. That’s 20 percent of her weight. That’s not consistent with primary lung cancer,” Lehman said. “That’s consistent with a different type of cancer: pelvic or abdominal cancer.”
After both undercutting plaintiff’s evidence and building her own alternate explanation concerning the disease, Lehman argued the conclusion for jurors was clear: “When you get to question 1 [on causation],” Lehman said, “just based on medical alone, the answer is no.”
The jury took less than 3 hours to clear Reynolds.
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