Widdick v. Brown & Williamson
"The Tobacco Conspiracy Trial"
Tobacco Conspiracy Trial Opens
(May 13) Both sides in Jacksonville, Florida's fourth tobacco civil trial in two years gave opening statements, with plaintiff attorney Norwood Wilner conceding that Roland Maddox, the deceased father and husband of the plaintiffs, smoked cigarettes for 50 years and was partly to blame for his cancer-related death. However, Wilner contended, the real issue is whether the Brown and Williamson Tobacco Corporation bear at least some responsibility for Maddox's death, not all responsibility.
During his opening statements, Wilner introduced the jurors to one of Maddox's daughters, Angela Widdick (who is the personal representative for Maddox's estate in the suit), and his widow, Margaret. He also showed the jurors various pictures of Maddox with his family. Wilner told the jury that Maddox began smoking when he was approximately 16 years-old and did not stop until he was 66, shortly after his diagnosis of lung cancer in 1996. For most of those 50 years, Wilner admitted, Maddox smoked between one-and-a half and two packs of cigarettes a day (first Chesterfield's, then Lucky Strike). According to Wilner, Maddox tried to quit the habit several times unsuccessfully but his addiction to nicotine was too great.
Wilner told the jury they will be asked to consider three questions (1)Was Brown & Williamson negligent in the cause of Maddox's death? (2) Was their product, the Lucky Strike cigarettes, defectively designed and made? (3) Did the company conspire to prevent the manufacture of safer cigarettes and to prevent the release of material that would have affected scientific and public opinions about smoking? An answer of "yes" to any one of the questions would result in damages for the plaintiffs.
While Wilner conceded that Maddox's responsibility for choosing to smoke, he argued that Brown & Williamson shared in that responsibility. He said that as early as 1941, the company was aware of a study linking cigarette smoking to lung cancer, yet chose not to warn the buying public. Alhough subsequent scientific studies further established the dangers of smoking, Wilner said Brown & Williamson and other cigarette makers conspired to conceal those dangers. They put warning labels on the packages only when Congress forced them to, in the late 1960's. The words "lung cancer" did not appear on the label until 1984. By then, Wilner said, Roland Maddox was addicted. And, according to Wilner, the cigarette industry had Maddox where they wanted him: they had intentionally designed cigarettes to be maximally addictive, packaged in a convenient shape, with bronchodilators to get smoke deep into the lungs.
Representing Brown & Williamson, John Nyhan offered a three-pronged defense in his openings: (1) Roland Maddox was a man who knew about the health risks of smoking, for a very long time. He sold cigarettes at a Winn Dixie supermarket, and co-workers testified that he jokingly referred to them as "coffin nails" and "cancer sticks" while continuing to smoke (2) It is not clear just how loyal Maddox was to Lucky Strikes. Co-workers testified that in 1985--11 years before he was diagnosed with lung cancer--Maddox switched to Marlboro Lights. They never saw him purchase, carry, or smoke Lucky Strikes after 1985. (3)Maddox allegedly quit cigarettes after developing prostate problems in 1993. (His family claims he smoked Luckys right up until he was diagnosed with lung cancer.)
Nyhan also attacked a 1953 scientific study on cigarettes in which mice painted with tar developed tumors. He said that other experiments did not produce the same results. The Brown & Williamson attorney emphasized the question of choice, that Maddox, like other smokers, smoked because they liked smoking, and Brown and Williamson should not be penalized for consumers' free choices.
After opening arguments, jurors heard the videotaped 1986 deposition of Robert Heimann, who was CEO of American Tobacco Company (ATC) (which manufactured Lucky Strike) from 1973-1980. He admitted the ATC took the position that smoking is not injurious to health, from 1954 through the end of his tenure in 1980. As an executive, he never discussed whether smoking causes lung cancer, or convened a group of doctors internally to discuss smoking and health. But he did meet with ATC's public relations group about smoking-related health issues. In the 1950's, ATC was a member of the industry-funded Tobacco Institute & Tobacco Industry Research Center, organizations which funded and conducted cigarette research. ATC withdrew from the Tobacco Institute in the mid-1960's, out of anti-trust concerns.
Heimann admitted that ATC did not respond to a 1964 Surgeon General's report linking cigarette smoking to cancer in men with any kind of public warning. He also defended ATC's advertising, saying it was truthful and the public could rely on it and said the public could rely on ATC's position that smoking is not injurious to health. Asked about the company's position on how much a customer should smoke, Heimann replied that it was not their concern. Their interest was in keeping the product clean, good tasting, well packaged and preserved. Heimann was aware that the American Cancer Society, the American Medical Association and a number of other health organizations considered smoking to be hazardous to health, but said they were simply wrong.
Then the 1995 deposition of Robert Sprinkle, Executive Vice President of ATC, was read to the jury. Sprinkle started out at ATC as a chemist, and as a chemist, he isolated compounds in cigarette tar, but could not remember, at the time of deposition, what those compounds were. He did recall that no tests were conducted on humans or animals to see if any of those compounds were carcinogenic. Sprinkle never requested or conducted a study to determine whether nicotine was harmful, or addictive, to humans. He admitted that there was talk in the community about nicotine's addictive properties even before a Surgeon General's 1965 report and conceded that of some 4,000 compounds in cigarettes, "some" are toxic. He would not say, though, that any were carcinogenic, because "science does not know the mechanism by which cancer is caused." He maintained this, even in the face of a Surgeon General's report that cigarettes contain 43 carcinogens. In addition, Sprinkle admitted the ATC never tested its product for safety.
In a counter deposition, Sprinkle said the company developed the industry's first ultra-low tar cigarette in the industry, Carlton.
The final deposition read to jurors for the day was taken from Virginius Bryan Lowgee III in 1984. Lowgee succeeded Heimann as CEO of American Tobacco in 1981. In his deposition, he said he does not believe that cigarette smoking is dangerous to health, or causes cancer, lung disease, or heart disease, and that his beliefs are the beliefs of the American Tobacco Company.
Live witness testimony is expected to begin when court resumes Thursday morning.
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