Medical causation is a key battle line in many tobacco trials, but the complex medical evidence at issue can overwhelm jurors if not properly presented. However, Jack Williams’s straightforward, compelling closing on a smoker’s cancer diagnosis helped clear R.J. Reynolds in retrial of a case that had delivered a $23.6 billion verdict against the tobacco giant in its first time before a jury.
Michael Johnson, 36, died in 1996 after more than 20 years of smoking. His widow, Cynthia Robinson, contended Reynolds’ role in a scheme to conceal the dangers of smoking hooked her husband to nicotine and ultimately led to his fatal lung cancer.
The 2019 retrial came five years after jurors hit Reynolds with a $23.6 billion verdict, the largest such award in the slate of Engle progeny cases spun from a Florida class action against the nation’s tobacco companies.
Key to the case, however, was whether Johnson suffered from primary lung cancer caused by smoking, or whether the cancer originated elsewhere and spread to his lungs.
In closings of the retrial, Jones Day’s Williams, representing Reynolds, focused on evidence that Johnson never had extensive testing to conclusively determine the cancer’s origin.
"[The plaintiff] cannot prove that Michael Johnson had cancer that started in his lung because he was not worked up. And no work up means no proof,” Williams said, as an image reading “No Work-Up = No Proof” appeared on the overhead ELMO.
It was a theme Williams would return to as he walked jurors through medical records and testimony he said showed doctors had no idea where Johnson’s cancer originated. Johnson, Williams, noted had declined treatment of his cancer after he was diagnosed, and ultimately refused testing that would have supported a differential diagnosis intended to determine the cancer’s origin and its staging.
“Remember our funnel?” Williams asked, referring to testimony detailing the steps of differential diagnosis as a funnel. That funnel, as Williams showed on the ELMO, included three major steps— running from an initial presentation and work-up at the funnel’s top, through a complete work-up, to staging of the disease.
“Michael Johnson stayed at the top of the funnel. Initial presentation [and beginning work-up] because that’s all he ever had,” Williams said. “Where his cancer began was never diagnosed.”
Using that memorable image as a springboard, Williams highlighted Johnson’s medical records, showing Johnson declined important testing, such as blood work and imaging, that could have delivered a clearer picture of his cancer. “Where Michael Johnson’s [cancer] started was never determined. It was found in his lung,” Williams said, “but that’s the only place that it was looked for.”
“The medical records tell the story,” Williams said.
Jurors needed less than two hours to clear RJR.
Email Arlin Crisco at acrisco@cvn.com.
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