In any event, based on comments I have seen in blogs, one thing is clear: the public does not understand the lawsuits that are occurring against Big Tobacco here in Florida.

The lawsuits in Florida, known as the Engle cases, largely involve people who became addicted to cigarettes and nicotine back in the 1920’s, 1930’s, 1940’s, and the 1950’s. The cases involve evidence of tobacco companies paying big bucks to:

• convince the public that cigarettes were good for you
• convince the public that nicotine was not addictive
• convince the public that smoking was a positive social choice
• convince the public that smoking did not cause cancer, emphysema, or other diseases

When Big Tobacco was required to place warning labels on cigarette packs, they spent huge sums of money backing articles and other efforts designed to convince the public about the safety of cigarettes; that stated no reliable link between smoking and cancer, much less other diseases, could be established; and that a grand conspiracy existed against cigarette smokers and the tobacco companies.

Bottom line? The Big Tobacco lawyers now want to reinvent history. They want to convince everyone that tobacco companies did not spend massive sums on advertising to convince the public that smoking was good for you, actually healthy for you.

They want to paint smokers who got hooked before the public was really aware of the dangers of smoking as making bad decisions. What they want the public to remember is only history that existed after warnings were given to the public and after all the smoke they could generate to hide the truth had dissipated.

Just check out this Camel ad from 1949:

Click here to view the embedded video.

Or this one from the 1950’s:

Click here to view the embedded video.

Here are just a few of the highlights for the past week:

March 10, 2010

A jury in Tampa returned a $5 million compensatory damages verdict in the Douglas case pending before Judge Pendino. Mrs. Douglas suffered and ultimately died from chronic obstructive pulmonary disease (COPD) and lung cancer.  The jury was shown secret, internal documents where tobacco scientists freely discussed:

• the addictive nature of cigarettes
• how smoking changes a smoker’s brain chemistry
• how smoking creates cravings
• how cigarettes can be altered to enhance delivery of nicotine
• how market share can be expanded to addict more people

Some of these documents go so far as to proclaim that the tobacco companies are “in the business of addiction.” It is the standard for tobacco manufacturers to argue to the jury that this smoker wasn’t really addicted, twist the definitions of addiction, and contend that the smoking was due to choice rather than nicotine addiction.

Big Tobacco’s successful adversaries were Howard Acosta, Kent Whittemore, and Bruce Denson.  Punitive damages were not sought in this particular case.

Later on the same day, a Broward jury delivered a verdict in favor of the plaintiff for the first phase of trial in the Cohen case, before Judge Streitfeld in Fort Lauderdale.  The trial will continue for several days as the jury now hears evidence regarding damages before rendering its final verdict.  In Broward County, there have been a number of tobacco cases tried and the manufacturers have insisted on the trial being conducted in phases.  With these phased trials, most of trials have lasted nearly three weeks.  In other jurisdictions, the same manufacturers have not requested a phased trial and none has been required by the court. The two recent trials, not in Fort Lauderdale, completed this week lasted less than two weeks.

March 11, 2010

A Vermont state court judge ruled that R. J. Reynolds made false and misleading statements in marketing its Eclipse cigarette over the past decade.

RJR has promoted Eclipse as being a part of its “corporate stewardship” program to manufacturer the safest cigarette possible.  The story of the Eclipse cigarette has also played a pivotal role in RJR”s attempts to defend itself in recent trials in Florida cases brought by former members of the “Engle class” and their family members.  With this latest court ruling, it is doubtful that the Eclipse brand will play such a prominent role in future trials.

The Vermont court found that RJR’s advertisements for Eclipse contained material misrepresentations of fact in its efforts to promote Eclipse as being a safer cigarette.    The opening lines of the Court’s opinion are particularly interesting:

In this action brought by the State of Vermont seeking to impose liability for allegedly deceptive advertising by Defendant R. J. Reynolds Tobacco Co. . . . for its non-traditional Eclipse cigarette, Reynolds has conceded the pharmacological basis for the insomniac smoker’s lament:  nicotine is a powerful addictive substance, and the cigarette is essentially a nicotine delivery device which the smoker uses to ingest the necessary amount of nicotine that the individual smoker craves.  Indeed, that premise, which tobacco companies have known for decades, was one of the principal reasons behind [RJR’s] development and marketing of the Eclipse cigarette.  Because Reynolds knew that smokers are addicted to nicotine and attempts to quit smoking are difficult at best and rarely successful on the 1^st (or 2^nd or3rd) try without medical aids and other support and assistance; and because it also knew, and now fully acknowledges that cigarettes are an inherently dangerous product – which, even when used properly and as directed, will result in unnecessary disease, bodily injury and harm, and even death – it sought to develop, and market a cigarette product for smokers who were concerned about their health and unable to quit, which could potentially result in a reduced risk to that smoker of contracting one which could potentially result in a reduced risk to that smoker of contracting one (or more) of the most common tobacco-related diseases.  Such a “potentially reduced exposure product,” . . . may well be the Holy Grail for cigarette makers and tobacco sellers facing ever-increasing regulatory restrictions, and a business model in which the product being sold inevitably results in the death of a significant number of customers and an otherwise shrinking customer base.

The quote from the Court reflects the reality of addiction; one well known to R. J. Reynolds and the rest of Big Tobacco; and one that is readily conceded when it comes to exploiting potential marketing opportunities and lining its coffers.  The presence of addiction, however, is a critical element in the lawsuits being brought by more than 8,000 former members of the Engle class action in Florida.  For those claimants, R. J. Reynolds and the other tobacco manufacturers:

• deny that the smokers are addicted
• deny that smoking causes anything other than a habit
• deny that addiction to cigarettes resulted in the development of disease
• deny that smoking was anything other than the free choice by the smoker before the first cigarette and before each and every cigarette thereafter.

Big Tobacco has brought in high-paid psychiatric experts with ties to tobacco for decades, to swear under oath:

• that very few smokers, if any, are addicted
• that these smokers, some of whom were as young as six or seven years old when they started smoking (and before warnings on packaging) made a “free choice” to continue smoking

The documented facts are:

• the tobacco companies were promoting cigarettes as healthy products
• the advertisements for cigarettes and smoking featured the celebrities of the day as well as physicians, promoting cigarette smoking
• the power of nicotine’s hold on smokers can be as strong as the addiction to heroin
• the effect of nicotine is rewiring of a smoker’s brain after only a short-period of time to constantly crave the drug effects of nicotine.

The Vermont court has not yet determined the penalties to be levied against R. J. Reynolds for its fraudulent and deceptive marketing practices.

Late this same day, a jury in Gainesville announced its award of $5 million in compensatory damages in the Hall trial; after hours of deliberation and nearly two weeks of trial. The jury also determined that the award of punitive damages was appropriate given the evidence presented regarding R. J. Reynold’s willful disregard for the health and safety of Mr. Hall and their reprehensible conduct over more than 50 years in promoting the only legal product that will injure and kill most of its users when used exactly as intended. More details regarding the Hall case and the jury’s final determinations can be found on the March 12, 2010 installment of this blog.

March 12, 2010

A jury in Gainesville awarded a total of $17.5 million in damages to the surviving spouse of an Engle class member who died of lung cancer in 1995 as a result of his addiction to RJR’s cigarettes.  Mr. Hall began smoking at the age of 14, long before tobacco companies were compelled by law to put any warnings on cigarette packs and, at a time when Big Tobacco were engaged in a conspiracy to dismiss and distract the health risks to smokers.

The jury’s verdict included $5 million in compensatory damages and $12.5 million in punitive damages.  The jury determined to R. J. Reynolds was 65% at fault for Mr. Hall’s addiction to cigarettes and the lung cancer that killed him, while the jury assessed 35% on the deceased smoker for his comparative fault.  Media reports noted Mrs. Hall’s comments after the jury’s verdict, which reportedly is the largest ever in Alachua County:  “I’d hand every bit back to them (the tobacco company), if I thought it would bring Lamar back for just one day.”

As expected, R. J. Reynolds attempted to defend the case by:

• blaming other causes of Mr. Hall’s lung cancer (in this particular case, his career in the construction industry was to blame)
• denying that he was in fact addicted to cigarettes
• contending that he could have quit if he really had wanted to do so.

Media reports also indicated that RJR’s defense attorney told the jury:

“RJR’s corporate management ‘has heard your message, and we accept your verdict on compensation.’ The ‘old guard’ of the firm is now gone, he said, and the message being put out by R. J. Reynolds has changed.”

It is important to note that more than a dozen verdicts have been rendered by Florida juries against Big Tobacco over the past year, yet not a single verdict has been paid.  The tobacco manufacturers have also requested permission to be excused from court-mandated settlement conferences by arguing to the court that the companies have a long history of never settling tobacco cases; so it really remains to be seen whether the “old guard” is in fact gone.

Congratulations to our friends Rod Smith, Mark Avera and Dawn Vallejos-Nichols who worked very hard to prepare this first tobacco trial in Gainesville on behalf of the Hall family.

Currently, there are a number of additional trials scheduled to occur in both Alachua and Levy Counties in the next several months.

So, what’s next?  Here, in Florida, tobacco manufacturers will continue to face trial after trial, as they have expressed an intention to force every plaintiff to trial, no matter how long it takes or how much it costs.  Currently, there are more than 75 additional trials anticipated in 2010 and many trials are expected to be scheduled soon for 2011.

In Florida, jurors have been hearing the truth about Big Tobacco antics over the years; and deny, spin, and lies is no longer working for them.

Click here to view the embedded video.

Thousands of smoking victims were required to file individual lawsuits against the Big Tobacco companies a couple of years ago, after the Supreme Court’s decision in the Engle case. Much to the chagrin of Big Tobacco, those cases are going to trial and Florida judges are trying their level best to allow sick and dying victims the opportunity to pursue justice in court.

Big Tobacco does not want anyone to know about the things they have been doing for 70 years.

They do not want jurors to see the memos talking about cigarettes being the single best drug delivery system ever invented; all the while Big Tobacco was denying that cigarettes were addictive.

Big Tobacco does not want jurors to see the memos where they analyzed the “youth market”. Where they discussed “the real need to become more aggressive against young adult males in major metro markets”. Big Tobacco does not want the light of day to see the studies where they discussed strategies for increasing their market shares with “14-15, 16-17, 18-20 age segments”.

Big Tobacco is desperate to deny jurors the opportunity to see the decades of publications in which Big Tobacco repeatedly told the public that smoking cigarettes was not addictive; smoking cigarettes was not dangerous to your health; and, in fact, smoking cigarettes was actually healthy for you.

Click here to view the embedded video.

Big Tobacco keeps losing trial, after trial, after trial; because once an unbiased public sees the truth, the written evidence, of Big Tobacco’s decade’s long campaign of deceit and irresponsibility, good and honest citizens can reach only one conclusion:

We find in favor of the plaintiff…

Produce a product you know kills people; hide or deflect all the information that would alert the public of the totality of the dangers; engineer nicotine delivery in a way that maximizes addiction and write memos talking about the whole scheme as if you are immune from being held responsible. Then, when you get caught, you rewrite history and hide behind “freedom of choice”.

In an undated memo, Colin Greig, a research and development gentleman for Big Tobacco discusses marketing scenarios which, at least in part, involved his unscientific testing of the way in which his mother-in-law smoked and enjoyed cigarettes; together with her level of addiction. Clearly this must have been the classic “hate your in-law” scenario.

Colin Greig Document

Let me hit the high points of good ‘ol Colin’s memo:

• Cigarettes deliver their drug (think nicotine here) to the brain faster than “other drugs” such as “marijuana, amphetamines, and alcohol”.
• Nicotine “is about the lowest dose” drug available (that still succeeds with addiction).
• Cigarettes are a cheap drug.
• Cigarettes are “a relatively cheap and efficient delivery system…” (think drug delivery here).

Mr. Greig includes in his analysis a quote from Oscar Wilde’s “The Picture of Dorian Gray”:

“A cigarette is the perfect type of a perfect pleasure.

It is exquisite, and it leaves one unsatisfied. What more can one want?”

And, then, Colin concludes with a statement that could not better illustrate Big Tobacco’s methods of operation all along:

“Let us provide the exquisiteness, and hope that they, our consumers, continue to remain unsatisfied. All we would want then is a larger bag to carry the money to the bank.”

Translation: Let’s continue to keep smokers hopelessly addicted and our only problem will be what to do with all that money!

Previous litigation has disclosed other writings by Big Tobacco with which they must now be seen with in the Florida sunshine:

• “If the use of such drugs [as marijuana] was legalized, one avenue for exploitation would be the augmentation of cigarettes with near subliminal levels of the drug.” (1976)
• “Nicotine is the addicting agent in cigarettes.” (1982)
• “Taken together, the evidence suggests that self-administration of nicotine may be the primary motivation for smoking.” (1984)
• “Very few customers are aware of the effects of nicotine, i.e. its addictive nature and that nicotine is a poison.” (1978)
• “We now possess a knowledge of the effects of nicotine far more extensive than exists in published scientific literature.” (1962)
• “Irrespective of the ethics involved, we should develop alternative designs which will allow the smoker to obtain significant enhanced deliveries [of nicotine] should he so wish .” (1984)
• “It may well be to remind you, however, that we have a research program in progress to obtain, by genetic means, any level of nicotine.” (1963)
• “The secret of Marlboro is ammonia.” (1989)
• RJR memo that says “Cigarette concept to assure RJR a larger segment of the youth market” «which states in part or in essence states in part “[A]ny desired additional nicotine ‘kick’ could be easily obtained through pH regulation .” (1973)
• “The need for nicotine is not a tangible benefit on its own – though it initiates a dependence for the confirmed smoker.”
• “Sweets or confectioneries containing nicotine carry the danger of over-dosage – nicotine is an acute poison.” (1980’s)
• “Smoking a cigarette for the beginner is a symbolic act… I am no longer my mother’s child. I’m tough, I am an adventurer. I’m not square… As the force from the psychological symbolism subsides, the pharmacological effect takes over to sustain the habit.” (1969)
• From one of Big Tobacco’s research directors: “An admission by the industry that excessive cigarette smoking is bad for you is tantamount to an admission of guilt with regard to the lung cancer problem. This could open the door to legal suits to which the industry would have no defense.”
• “… smoking mothers produce smaller babies” and “the position of the medical people is that smaller babies suffered detrimental effects all through life.” (1969)
• “We have gone to great pains to eliminate any written contact with INBIFO (Big Tobacco’s testing lab)… If this procedure is unacceptable to you, perhaps we should consider a ‘dummy’ mailing address in Koln for the receipt of samples .” (1977)

Big Tobacco now faces dozens and dozens of trials this year down here in sunny Florida. They have gotten caught in their own web of deception and Florida citizens see through their manipulations and deceit. Floridians are a cross section of pretty smart people and we do not think it is okay to hide for decades the dangers of a product that kills people; collect billions in profits; and then cry foul when you are brought to justice.

Hey, Big Tobacco, maybe you should bring the bags down here and bypass the bank; it will save you time.

Things must be tough for Big Tobacco; 8000 plaintiffs, so much truth, so little defense. As I have previously written, I felt Florida would be a little too hot for those boardroom lawyers representing Big Tobacco and it appears I may have been correct.

You expect them to come after you in the courtroom or in deposition. You expect Big Tobacco’s lawyers to be aggressive, take no prisoner types of lawyers. You expect Big Tobacco to want to delay cases going to trial; after all, in some cases, they face dying plaintiffs. What, at least, I did not expect is that Big Tobacco would try and hijack the Florida litigation to California.

In a couple of cases here in Florida, Big Tobacco has actually changed their focus of attack from the plaintiffs to a lone professor from Stanford University. Yes, that is correct, Big Tobacco is bringing its entire, massive power down upon the head of a historian, Dr. Robert Proctor, who apparently had the temerity to testify for injured smokers and against Big Tobacco.

Big Tobacco’s lawyers have filed motions trying to force Dr. Proctor to disclose his notes, his unfinished notes and any other papers remotely connected to a book he has been researching – a book not yet even published.

Let’s think about this. Dr. Proctor is an historian. So, that would mean that Dr. Proctor testifies about things that have occurred in the past; discussions that have occurred in the past; publications published in the past; and Big Tobacco’s advertising, again, in the past.

Could it be that Big Tobacco has difficulty with Dr. Proctor’s testimony? Can they not read the history just as Dr. Proctor does and can they not hold his feet to the fire based on the history? Could it be that Big Tobacco does not like the title of Dr. Proctor’s proposed book: “Golden Holocaust – A History of global Tobacco”?

Yep, it can get hot down here.

Below is a summary of upcoming tobacco trials:

In addition to the above trial settings, additional trials should be scheduled during the same time period in Broward, Hillsborough, Lee, Escambia, Duval, Volusia, Alachua, and Levy Counties.  Several judges have indicated a willingness to consider conducting multi-plaintiff or consolidated trials, over the strenuous objection of the tobacco defense lawyers, in hopes of giving every former member of the Engle class action the right to a jury trial during their lifetime.

Philip Morris and their lawyers, presumably, blame the judge and bad rulings made by him. Altria’s (Philip Morris’ owner) senior vice-president, Murray Garrick said that “Today’s verdict is the result of a severely prejudicial trial plan. From beginning to end, this case was marked by legal rulings that should be reversed on appeal”
Imagine a cigarette company denying their product had anything at all to do with the death of a smoker. Apparently, Philip Morris and Altria do not believe they shared even 38% of the blame. It seems that Big Tobacco is not going to ever accept responsibility for producing a product, which they have manipulated and adulterated to an extent that it really has little connection with original tobacco.

But why change your conduct if you are a multi-billion dollar empire that has produced a drug for 75 years that the FDA would never allow to be marketed today? Why change your concern for billions in profits over dead victims of your product?
In 1958, The Tobacco Institute (a propaganda organization created by Big Tobacco) spewed a press release that, in part, said the following:

“It is the position of the Tobacco Institute (and so Big Tobacco) that the health of the American people is more important than dividends for the tobacco or any other industry.”

Apparently, that was as false as their claims for the last 70 years that cigarettes are not addictive and cigarettes do not cause lung cancer, COPD or any of the other dozens of diseases we know they cause.

To be fair, this statement was made by Big Tobacco before they knew, that we knew, that they knew for a long time that cigarettes would make people sick and kill them. So, sure they were not really on a search for the truth; in fact, they were lying, but hey, the health of the American people was what was important to them. Billions of dollars in profit was not what was driving this industry. Greed was in the back seat to charity and compassion for Big Tobacco.

When the CEO’s of all Big Tobacco stood before congress and stated the following where was the charity?:

REP. WYDEN: Let me begin my questioning on whether or not nicotine is addictive. Let me ask you first, and I’d like to just go down the row, whether each of you believes that nicotine is not addictive. I heard virtually all of you touch on it. Yes or no, do you believe nicotine is not addictive?

MR. CAMPBELL (President of Philip Morris U.S.A.).
I believe nicotine is not addictive, yes.

REP. WYDEN: Mr. Johnston?

MR. JAMES JOHNSTON (Chairman and CEO of RJ Reynolds Tobacco Company). Mr. Congressman, cigarettes and nicotine clearly do not meet the classic definition of addiction. There is no intoxication.

REP. WYDEN: We’ll take that as a “no.” Again, time is short. I think that each of you believe that nicotine is not addictive. We would just like to have this for the record.
MR. TADDEO (President of U.S. Tobacco).

I don’t believe that nicotine or our products are addictive.
MR. TISCH (Chairman and CEO of Lorillard Tobacco Company).
I believe that nicotine is not addictive.

MR. HORRIGAN (Chairman and CEO of Liggett Group).
I believe that nicotine is not addictive.

MR. SANDEFUR (Chairman and CEO of Brown and Williamson Tobacco Company).
I believe that nicotine is not addictive.

MR. DONALD JOHNSTON (President and CEO of American Tobacco Company).
And I, too, believe that nicotine is not addictive.

Imagine in 1994 the leaders of Big Tobacco did not want to take responsibility for the addiction of cigarettes and their manipulation of nicotine. Is it any wonder that when citizens hear evidence and find Big Tobacco responsible that they still cannot accept any responsibility? Is it any wonder that Big Tobacco blames the judge?
Apparently Big Tobacco is glad to sell its drug in this country as long as it does not have to be compelled by its laws. Thanks for caring, Big Tobacco. You blame the judge; you blame the juries; are their mirrors at Big Tobacco’s headquarters? Take a look and try to be a responsible citizen.

Mr. Hess had smoked cigarettes for 40 years and had tried numerous methods to quit, without success. Ultimately, Mr. Hess died from cancer and his addiction to nicotine endured throughout his chemotherapy.

Big Tobacco’s lawyers apparently argued that because Mr. Hess appeared to be “able to quit from time to time”, he was not addicted to cigarettes. Mrs. Hess attorney, Gary Paige, put it about as plainly as you can: “People smoke because they’re addicted, not because they choose to,” Paige said. “Nobody wants to be addicted to cigarettes. It’s as addictive as cocaine and heroin.”

What is it with an industry who can not even be honest enough to admit that cigarettes are and always have been addictive!

Finally, Mrs. Hess has found some vindication from Big Tobacco.