Mounting a strong defense in a trial's punitive phase can be daunting. A defense attorney is often faced with convincing jurors that the defendant they just found committed wrongdoing egregious enough to warrant harsh punishment has actually changed enough to mitigate that same punishment. King & Spalding's Ursula Henninger met that task by turning the tables on the idea that a tobacco giant only had an eye for profits. Martin v. Philip Morris, et al., 2007-CV-036440.
Philip Morris and Henninger's client, R.J. Reynolds, had already been found liable for their roles in a conspiracy to hide the dangers of cigarettes that jurors concluded caused the lung cancer and heart disease of Carole Martin. After hearing eight days of evidence on the scheme, which lasted throughout much of the 20th century, jurors handed down a $5.5 million compensatory award and determined the two companies should be on the hook for potential punitives.
The punitive proceeding focused on whether the two tobacco companies were different enough from their prior iterations as corporate conspirators to mitigate against punishment. During closing arguments, Martin's legal team argued Reynolds was so money-driven that imposing up to $5 million in punitive damages against the company was the only way to make it understand its wrongdoing.
"RJR only cares about money is the claim. If that's the case, why do we have Premier, Eclipse, Snus," Henninger responded in her closing as she lined up the company's traditional cigarette alternatives. "We sell Eclipse, we lose money. Why do we have this if all we care about is money?"
Henninger said she wouldn't dwell too long on tobacco industry settlements with state governments and strict federal regulation that changed the way cigarettes are manufactured and marketed today because jurors had heard enough about that. "What you didn't know was all the planning, research, development, [and] studies [on] alternative products that Reynolds is trying," she said, arguing the company aimed to provide smokers with safer options than traditional cigarettes. "That is exactly, ladies, what you would want a tobacco company to do in 2016."
Henninger painted the picture of a tobacco company far different from the one jurors had heard about in the trial's first phase. Her argument helped lead the jury to impose only $200,000 in punitives on Reynolds, an amount even less than the $220,000 she suggested was appropriate if jurors found punishment warranted at all.
Email Arlin Crisco at acrisco@cvn.com.
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