Kenny Byrd is pissed.
For almost three years, the Nashville attorney has been hip-deep in cigarette litigation. He's representing a seriously ill plaintiff who measures time by each labored breath, and he's facing adversaries with virtually unlimited resources and every incentive in the world to stall. He's gotten this far, 700 miles from home in a Florida federal courtroom, on his skill cutting through the rhetoric of corporate obfuscation.
Now, a week-and-a-half into an almost three-week federal trial in Orlando in October, the biggest cigarette companies in the U.S. are attempting to shut him up.
As his case, Kerrivan v. R.J. Reynolds et al., hurtles toward the jury, lawyers for Philip Morris and Reynolds have filed a motion to keep Byrd from using phrases he used in the closing arguments of other tobacco trials. What the defendants don't want in Kerrivan is for Byrd, in full-on preacher mode, to characterize them the way he did the month before in Jacksonville. Standing before a jury, Byrd had laid a veritable death toll at the tobacco companies' feet.
"They have killed grandmothers and grandfathers," Byrd told the jurors. "They have killed aunts and uncles, mommies and daddies, they have killed sisters and brothers."
That wind-up preceded a $27 million verdict. When that happens, Big Tobacco pays attention. And now, after days of testimony about how smoking is addictive and the defendants hid that fact for years, they're trying to cut him off before he can get started. They've filed a nine-page motion without conferring with Byrd or the judge — a no-no in this district of federal court.
"First, I'm honored that they think there's things that I have said in other cases that have been so effective that they need to file a motion to get them precluded," Byrd says, his voice taking on a little more edge. One hand's on his hip, the other grips the podium. "They're bringing up primarily a case that I won, frankly, a month ago."
That's what happens when tens of millions of dollars ride on the parsing of sentences. What the tobacco attorneys want is for today's judge — one Ralph Erickson, a burly North Dakotan flown in from Fargo to preside in the Florida trial — to rule against Byrd's rhetorical devices, so they can use that ruling against the earlier $27 million judgment.
Erickson walks a fine line. He doesn't want inflammatory rhetoric in his court, which might create grounds for an appeal. But he also understands the game that's being played here.
"I'm just going to tell you this, that I am not in the habit of allowing people to stand up and sort of wave the bloody shirt," the judge cautions.
There's no ruling on the motion, which Byrd's colleagues will later refer to as "Kenny's Greatest Hits." Nevertheless, the episode offers insight into Big Tobacco's strategy: Resist at every step, bury the plaintiff in paper, surprise them with motions — and set up the next appeal. The large team of tobacco attorneys will file many such motions in the course of the trial, often generating new ones overnight.
Byrd has seen this before and he'll see it again. He and his colleagues are part of the biggest tobacco war in U.S. legal history, a catalog of thousands of individual cases being slugged out, one at a time, in Florida. The costs on both sides, human and financial, are huge. The plaintiffs stand to gain Powerball-sized judgments. The defendants just have to outlive them.
This is the story of one such trial.
Up until the mid-1990s, comparing Big Tobacco to the 1927 New York Yankees would be unfair. Babe Ruth's team wasn't nearly that good. As recently as 20 years ago, cigarette manufacturers hadn't lost a single case.
That changed in 1995. A Jacksonville court found tobacco giant Brown & Williamson liable for the lung cancer of Grady Carter, who'd smoked their Lucky Strike brand for 43 years. The reckoning came when his attorney, Norwood "Woody" Wilner, introduced a sheaf of 21 documents stolen from tobacco companies. The files didn't just show that executives knew cigarettes were harmful. They showed that the companies hid research that proved it.
The verdict was relatively small: Carter was awarded $750,000 after the three-week trial. But the effects were seismic. After the ruling, tobacco stocks plummeted $14 billion in value in a single day.
Three years later, Howard Engle and six others brought a class-action suit in Miami against Big Tobacco. Engle was a Miami Beach pediatrician and lifelong smoker who had tried for years to quit but was unable. Saddled with chronic obstructive pulmonary disease (COPD), Engle was emblematic of thousands of Floridians: an aging smoker, addicted while he was young, now faced with a fatal lung disorder.
"Day to day he went to the office and saw kids for 50 years, but his main interest was handicapped children," his son David Engle told The New York Times in 2009. "And he wanted to teach people, especially kids, that smoking is not a good habit."
Unlike the narrow Carter case, the massive Engle v. Liggett trial lasted more than a year. At the end, among other findings, the jury reached these conclusions: Cigarette manufacturers knowingly placed a defective product on the market; the companies knowingly concealed the health effects and addictive nature of smoking from the public; the companies conspired to hide the health effects and addictive nature of cigarettes from their customers; and that the companies acted negligently.
The Engle plaintiffs were aided by an incriminating flood of previously unseen documents and secret reports — the result of a 1998 master settlement between tobacco companies and attorneys general in 46 states. Along with repaying the states billions of dollars in smoking-related Medicaid costs, cigarette manufacturers had to make public millions of pages of internal files.
In their wake, the Engle jury dropped a bomb in punitive damages: $145 billion.
The ash hadn't hit the tray before the tobacco companies appealed. Seven years later, in 2006, the Florida Supreme Court struck down part of the ruling. The court declared that the class — estimated by Engle attorney Stanley Rosenblatt at roughly 100,000 people — was simply too disparate. The punitive damages went away.
But the jury's original findings about negligence and conspiracy stood. Anyone who could prove that they deserved to be part of the original class — those addicted to cigarettes — could use what the jury found in a suit of his or her own. They just had to file within the next year.
The result? More than 8,000 individual cases sprang up from the original Engle verdict, by the Florida Bar's estimate in 2012. Yes, the tobacco companies had staved off a crippling judgment. But now they would have to fight in courts all over the state — a massive undertaking involving multiple law firms and untold cost.
After winning Carter, Wilner was inundated with sick or dying smokers who believed they had a case. When the Engle appeals finally sorted out, he and his firm filed more than 2,000 cases, including 1,800 in federal court, which sat on the docket for years. While the system tried to sort out this crush of litigation, Wilner took on the first of two partner firms to help with the load: Lieff Cabraser, where Byrd works.
The rap against plaintiff's attorneys is that they're ambulance chasers angling for big judgments. What no one realizes is the amount of risk a firm assumes when it takes on a tobacco case. Set aside Big Tobacco's bleed-them-dry strategy of perpetual appeals, which end only when either opposing counsel blinks or the plaintiff dies, no preference. A firm can spend millions before the first verdict has even been handed down and losses have implications for both plaintiffs and lawyers.
"The firm's executive committee made the decision to prosecute smokers' cases — and not lightly," says Lieff Cabraser founding partner Elizabeth Cabraser. "The cigarette companies' strategy of attrition to make these cases as costly and painful as possible is well-documented, and the strategy persists. It has been devastatingly effective, and whether or when we will recoup our costs is unknown. However, we believe the people harmed deserve all of the justice and vindication our efforts can provide."
In Lieff Cabraser's local offices on the 16th floor of One Nashville Place downtown, Byrd and his fellow tobacco attorney, John Spragens, strike a similar profile. Both are products of Nashville public schools — Byrd went to Overton, Spragens to Hume Fogg. Both spent time as journalists before going off to law school. Byrd worked at the Associated Baptist Press in Washington, D.C., around the turn of the 21st century, while Spragens, in the interest of disclosure, was a staff writer at the Nashville Scene from 2004 to 2006. And both left more traditional firms in town for the chance to do trial work.
Kenny Byrd and John Spragens
"I remember my brother and people in my family saying, 'Why do you want to go to law school?' And I said, 'So I can take on big corporations,' " Byrd says. Spragens, similarly, had a hard time sitting on the sidelines. With a raft of Engle cases coming up over the next few years, Byrd called Spragens and asked him to apply at Lieff.
"It was the scariest professional conversation I've had in my young life," Spragens says of telling his bosses at white-shoe Nashville firm Bass Berry & Sims he wanted to leave. "Because it's not easy to be like, 'Thanks for investing in me' — a young lawyer doesn't make a lot of money for a big law firm. They're paying to train young lawyers, basically. So to say to them after six months, 'Look, I have this other opportunity to go to federal court and try cases over and over again' ... is something that attorneys don't get to do anymore, by and large. It wasn't personal: I wasn't dissatisfied with a lot of the stuff I was doing. But I'd really rather be a trial lawyer if I can, and I'd never seen the opportunity like I see it with these tobacco cases."
Two months later, Spragens was sitting beside Byrd in court. If that was fast, the speed of the oncoming Engle litigation may be faster. Lieff has two other offices — San Francisco and New York — and attorneys from each are trying cases. The discovery phase in the early Engle trials could last up to nine months. But after the Middle District of Florida federal courts brought in an outside judge to manage the cases, discovery was compressed to three to four months on most trials. The judge also activated waves of 50 or more cases at a time, in an effort to unclog the courts. It's likely to continue through 2016, when the majority of federal cases will be cleared from the docket.
As a result, Byrd and Spragens spend most weeks when they're not in court shuttling between depositions in Florida and elsewhere. No matter how much you enjoy the work, Byrd says, it can take a toll on family life. His oldest child, an elementary-schooler, has been upset with his time away. When Byrd and his wife Judith told her recently she couldn't go to a friend's house, she used the one threat she knew would get his attention.
"If you don't let me go," she said, "I'll start smoking." An outsider might laugh or respect the moxie of the kid (who sounds like a born lawyer). Byrd was heartbroken.
When the process started, Byrd had little experience as a tobacco advocate. Now that he's a veteran, the cases take on a feeling of perpetual churn. Lawyers make objections for opposing counsel and answer them just as quickly. Attorneys often give outside judges like Erickson quick rundowns of who has won and lost certain arguments in different courts. Sometimes opposing counsel will slip up and call plaintiffs by the names of those in other cases. For tobacco attorneys, in a sense, every day is Groundhog Day.
For Byrd's plaintiff, however, every day is an ordeal.
Kenny Kerrivan, 73, doesn't shake your hand. He apologizes when he meets you, but the fear of almost any germ becoming fatal — getting stuck in all of the extra mucus that his severe COPD creates in his lungs — guards him against almost everything.
He lives in a trailer on a street in Lake Panasoffkee, about an hour northwest of Orlando. A median Florida home goes for approximately $170,000. On his street, the homes go for a quarter to a third of that.
Kerrivan grew up in Brooklyn, the son of an ex-Merchant Marine and a stay-home mom. He raced stock cars ("jalopies," he calls them) at local tracks in New York as a hobby. He did various light construction jobs — aluminum siding and high-rise windows — before he moved to Florida, where he became a tow-truck driver and then a dispatcher. By that point, though, his health had already begun an irreversible decline.
Today, the simplest of acts — taking a shower, walking — leaves him winded and wheezing. He requires almost constant oxygen, a nebulizer to get medicine directly into his lungs, and the steroid prednisone. All help Kerrivan function on a daily basis, but all have side effects — particularly the steroids, which may make him more prone to infection and weight gain and even may cause cataracts.
"When I tried my first cigarette, I was 14," Kerrivan says. He smoked at the bus stop with a friend. "I was 16, 17 when I, you know, started smoking them every day. I wasn't a heavy smoker. I think a pack of cigarettes would last me three or four days."
That didn't last. Kerrivan's attempts to quit may have worsened his habit. What his legal team will have to prove, essentially, is that the tobacco companies robbed him of free will.
That is the theory, anyway, that the plaintiff's attorneys will methodically construct before a Florida jury, armed with doctors and expert witnesses. That is also the theory that the defendants' attorneys will methodically attack and attempt to dismantle, armed with doctors of their own.
Their battleground will be the current federal courthouse in Orlando, opened in 2007 — a gleaming $90 million building with a sweeping eight-story atrium and large stained-glass windows. The courtrooms resemble a new church, with high paneling, pew-like seating and wine-red carpet throughout. Rising above everything, like an altar, is Judge Erickson's bench.
On Oct. 7, after a day of jury selection, Erickson calls the jurors into the courtroom. For nearly an hour, he lays out the facts of the case that the parties have agreed upon, and what must be proved in order to find for the plaintiff.
"Your verdict must be unanimous. In other words, you must all agree. Your deliberations will be secret. You'll never have to explain your verdict to anyone," Erickson says. "Remember that in a very real way, you are judges, the judges of the facts. Your only interest is to seek the truth from the evidence in the case."
Byrd and his co-counsel Sarah London, from Lieff Cabraser's San Francisco office, call their first witness. He's Neil Grunberg, a professor of clinical psychology and research scientist, and one of the country's foremost experts on addiction. He was also co-author of a 1988 Surgeon General's report on nicotine addiction. Imagine that you're a groundbreaking researcher whose work has earned the respect of peers. That's Grunberg.
Now imagine learning that someone else did the same research decades before — only in secret.
In 1994, a former colleague, Jack Henningfield, called Grunberg from Rep. Henry Waxman's office. He was looking at reports stamped "secret," "confidential" and "top secret."
"And he said, Neil, I want to fax you some documents. You've got to look at these," Grunberg testifies. "I said, 'OK, Jack. Here's my fax number.'
"He said, 'Put a lot of paper in.' "
If a standard fax was five or maybe 10 pages, now a hundred were coming through. The documents came from the Battelle, a research institute that contracts for the tobacco industry.
"What was shocking in this report is these data were 15 to 20 years before my own research on nicotine and stress, nicotine and body weight, nicotine and feeding, nicotine and chemistry,"Grunberg states. "And they were all my findings.
"In other words, I was stunned. ... The science is superb. I was reading superb science. But all of these cool things that I had found in the '80s that I had won all sorts of awards because I was so brilliant had all been done 15 to 20 years before I even knew about it."
For the better part of two days, Grunberg will testify about the powerful hold cigarettes can have over a smoker — and what the cigarette companies knew about it but didn't disclose. That it takes only a half-pack a day to maintain addiction — even less, if the smoker inhales more deeply and puffs more. That every aspect of cigarettes, from the pH balance to the tobacco to the paper to the filter, has been tweaked to maximize the effect of nicotine. That the companies rigorously studied the physical and psychological effects of smoking on teens — or as the companies described them, "pre-smokers."
At one point, Grunberg reads from a tobacco scientist in one of the "top secret" reports:
"A cigarette is the perfect type of a perfect pleasure. It is exquisite. And it leaves one unsatisfied. What more can one want? Let us provide this 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."
But Grunberg testifies that without nicotine — the drug that tobacco companies push — Philip Morris scientists knew their product wouldn't work. "A cigarette that does not deliver nicotine cannot satisfy the habituated smoker and cannot lead to habituation," one report concluded, "and would therefore almost certainly fail."
As he speaks, Byrd takes sticky notes from documents Grunberg describes and places them on a massive piece of poster board in front of the jury to create a timeline. Byrd then turns Grunberg's attention to the plaintiff, Kenny Kerrivan. After examining his case, would the expert say Kerrivan was addicted?
"Mr. Kerrivan was heavily addicted to cigarettes for most of his adult life," Grunberg says.
"And how heavy was his addiction, in your opinion?"
"He was a highly addicted or heavily addicted smoker by all indications of behaviors, including the amount he smoked, the brands he smoked, his changed behavior with different nicotine-delivery cigarettes, as well as the withdrawal and relapse that he experienced multiple times."
"And do you have an opinion as to whether his addiction interfered with his free choice or his delay in stopping smoking cigarettes?"
"Yes."
"And what is that?"
"That because he was a heavily addicted cigarette smoker, that he essentially had no free choice, and that the addiction interfered with any free choice or rational decision-making with regard to smoking behavior."
People can quit smoking, Grunberg says. It happens all the time. But not everyone can do it — and until he faced death, neither could Kenny Kerrivan.
Finally, Byrd asks Grunberg to close the loop. In 1988, in response to his work on the Surgeon General's report, the cigarette companies' PR wing the Tobacco Institute said, "Clearly the report issued by the surgeon general's office today is politically rather than scientifically motivated." The institute called Grunberg's work on addiction — confirmed by their own scientists decades before — "irresponsible" and a "scare tactic."
Byrd then pulls up a new document from 1980 on the screen.
"This is from Mr. Knopick, from the Tobacco Institute." Byrd says.
Grunberg reads the passage. "I feel badly about my own lack of intelligence gathering in this situation, but I don't think the questions I now raise are academic. The lawyers remind us, I'm told, that the entire matter of addiction is the most potent weapon a prosecuting attorney can have in a lung cancer/cigarette case. We can't defend continued smoking as free choice if the person was addicted."
Now the defense must undo the damage from Byrd's expert. Although Reynolds is named first in the suit, Philip Morris takes the lead — Kerrivan smoked more Marlboros, a Philip Morris product, than anything else. Byrd says that in Judith Berger's case the previous month, Reynolds attorneys had been very aggressive, objecting at every turn. That may have turned off the jury.
If so, Stan Davis, the lead attorney for Philip Morris, is the antidote to that. Smooth but firm in his delivery, Davis objects rarely. He is graying and mustachioed, and his deep voice and calm demeanor have a Sam Elliott quality — he'd be right at home playing a sheriff. He has the reputation of being one of the best litigators at Shook, Hardy & Bacon, Philip Morris' longtime law firm.
Right off, Davis asks if he's testifying in a lot of these cases. Yes, Grunberg says. A few since 2011, a few more in the next year.
"So personally, if you had your way, would cigarettes be banned?"
"No, I would not do that," Grunberg says.
"At all?"
"Not pulled off the market. It's that I believe nicotine, per se, should be removed from cigarettes, and that product could still be sold as cigarettes based on flavors and likes that people would choose, but not have the addictive drug."
"Well, do we have the Izzarelli testimony?"
Davis pulls up testimony from a 2010 trial where Grunberg agreed, on the witness stand, to a question whether companies should "pull them all off the market."
It's a little thing, but Davis will try every way he can to chip away at Grunberg: He's biased; he wants to ban cigarettes; there have been warnings for years; popular literature, like Readers Digest, had anti-smoking articles since the early 1930s; Kenny Kerrivan could have quit anytime he wanted. Davis even quotes Grunberg's mentor and boss, former Surgeon General C. Everett Koop, implying that smoking is only a matter of choice.
For four-and-a-half hours over two days, Davis uses even the smallest contradiction between depositions given before the trial and Grunberg's testimony to impeach the witness. When Byrd gets a chance to rebut, he counters by attacking the main thrust of Davis' questioning: We've always known smoking was bad — why should today's companies be liable?
"Why did you take so long to put this ground-breaking report out if all — if the answer had been there since Christopher Columbus?" Byrd asks.
"There have been ideas, essays, rumors on both sides of this debate over hundreds of years, and even as recently to that report as I mentioned yesterday," Grunberg says. What there wasn't, until relatively recently, was scientific evidence. In the early 1980s, he explains, the National Institute on Drug Abuse was still stating that it didn't know if smoking and nicotine were addictive, and even his former boss Koop called for further evaluation.
"So the surgeon general didn't know. The National Institute on Drug Abuse didn't know," Grunberg says. "Basically, just because there are opinion papers and selective editorials over the last century, which ended up being correct, the scientific evidence had not been accumulated. So the surgeon general and the federal government could not inform the people."
Byrd needs to establish that cigarette companies conspired to mask the harmful effects of their product. On the trial's fifth day, he calls to the stand Robert Proctor, whose reputation precedes him as a kind of kremlinologist of Big Tobacco. In the 1990s, millions of pages of internal tobacco-company files became public domain. So many documents came out, in fact, that they became a field of academic study. Few know more about it than Proctor, a professor of science history at Stanford.
That has made him a tobacco-industry target outside the courtroom. After Proctor emailed a colleague at the University of Florida to ask why grad students were doing legal research for the cigarette companies, Philip Morris and R.J. Reynolds attempted to get him barred from testifying in a 2009 smoking case in Florida. Proctor described the deposition process to The Nation in 2010 as "sixteen hours under oath, twelve lawyers in a room overlooking San Francisco Bay, a million dollars spent on deposing me and going after these emails." A judge later determined that nothing improper had happened.
On the stand, Proctor gives what amounts to a history of the modern cigarette as stealth weapon. In 1900, he says, cigarettes were relatively unpopular, with slightly more than 2 billion smoked in the U.S. By 1982, that number had skyrocketed to 630 billion. In large part, he explains, that was due to shrewd mass marketing in the early 20th century that "crushed" early anti-tobacco sentiment. The industry would spend $250 billion (in 2006 dollars) from the 1940s until the 2000s marketing its product. In 1950, the average American saw 50 hours — "five-zero hours," Proctor emphasizes — of continuous cigarette advertising per year.
For many decades — including those when Kenny Kerrivan got hooked on cigarettes — it was the most advertised product on television, radio and on billboards. Americans saw tobacco branding everywhere, from sporting events to movies like Superman II, where Philip Morris paid for multiple placements. Reynolds bought the rights to a French cartoon character; suddenly kids had a new buddy in Joe Camel. Proctor says the phallic-nosed character was so successful that it took the brand from 1 percent of the 12-to-17 market to more than 30 percent.
Yet visuals are no less crucial to Byrd's case. In the newest courtrooms everything is wired: individual screens flicker on and off right in the jury box. Byrd spends hours with Proctor walking the court through an array of documents and graphs. The exhibits, and in particular the use of video, are not only instructive but engaging.
They have to be. For even the most committed person, being a juror can be an exercise in tedium as you sit in the same chair for days on end. Some jurors doze off in the middle of testimony that both parties are spending hundreds of thousands of dollars to contest in court. Whenever something is shown on their screens, though, the jurors sit up, lean forward and focus on their monitor.
"Can you go to page 12, Willow?" Byrd says. Willow is one of the firm's AV people, a necessity for a modern trial with stakes this high. Most of the 138 exhibits that get entered into evidence — including more than 20 videos — will appear on the jurors' screens. They're housed on one of three laptops she carries with her: one for video editing, one for presentations, and a backup. After each day in court, she'll head back to the team's makeshift war room in an emptied-out hotel room — bed removed, walls and bathroom lined with boxes — and start prepping the next day's show from more than 1,000 exhibits.
Today, the show concerns a 1969 campaign concocted by marketers working for Brown & Williamson, manufacturer of Kool cigarettes and Raleigh and Viceroy. Under the Orwellian heading Project Truth, Proctor says, it intended to counteract growing evidence of cigarettes' damaging effects by planting seeds of doubt.
"And so that's what they say here. Doubt is our product," Proctor testifies. "Since it is the best means of competing with the body of fact that exists in the mind of the public, it's also the means of establishing a controversy."
The cigarette companies had been hit with a Surgeon's General report in 1964 that called their product dangerous. The industry had to respond. In the words of one memo, "We must in the near future provide some answers which will give smokers a psychological crutch and a self-rationale to continue smoking."
Enter light cigarettes. According to cigarette companies, tiny filter pinholes allowed air to mix in with the smoke and dilute it. The resulting so-called "lights" were lower in tar and nicotine, manufacturers claimed. And indeed they were — if measured on a smoking machine. In reality, most smokers covered up the vents with their lips or fingers and delivered the higher yields into their lungs.
But the new cigarettes worked only too well as a crutch. Kenny Kerrivan switched to Marlboro Lights for two reasons: His multi-pack-a-day habit worried him, and he thought switching to lights would help him quit. He also believed he was getting less nicotine and tar. Eventually, though, he ended up smoking more to get the same fix. He would often wake up in the middle of the night to smoke one or two cigarettes.
Like other lights smokers, Proctor testifies, Kerrivan was compensating. He was addicted to a level of nicotine and would smoke however much he needed to get it. In seeking to smoke less, Proctor concludes, Kerrivan often inhaled more smoke, sometimes puffing more deeply and holding it in his lungs.
Now it's Davis' turn. He takes the same tack with Proctor that he did with Grunberg: chip, chip, chip. Does he want cigarettes banned? Yes, Proctor replies. And how many times has he testified in cases? Eighteen last year, Proctor says. That's an awful lot of money. Is this the majority of your compensation now? Yes, he says. And haven't you made almost $2 million testifying in smoking trials? Yes. The implication Davis makes is that Proctor is more hired mouthpiece than man of science.
And this is one of the many ironies of the Engle trials. Proctor is a passionate anti-smoking advocate who probably would have testified once if this were a class-action case. But because Big Tobacco successfully got the Engle class decertified on appeal — turning Kenny Kerrivan's case and thousands of others into lawsuits instead of just claims — he and others now may testify dozens of times, if not more. For Davis and other tobacco attorneys, that bug is now a feature. They can tag Proctor and other expert witnesses as money-chasers.
Davis peppers Proctor with examples of anti-smoking material in the popular press and Gallup polls that show the general public was aware of the risk of lung cancer. He introduces public service announcements from television and cites the 13 million people who quit smoking after the 1964 Surgeon General's report. Americans could see the dangers of smoking, he argues, and act freely on that information.
Davis is good. Byrd has just a few minutes of redirect to undo his work.
"What's missing, if anything, from that question in the Gallup poll that from your conclusions and research in the field about what people knew during this era?" Byrd asks.
"Well, what's missing is, 'Do you believe?' And that's a much lower response," Proctor replies. "And if you ask it another way, what do you think — without prompting, what do you think is wrong with cigarettes, you get 1 or 2 percent of people mentioning lung cancer. So much depends on how you ask the question. If you say, 'Have you heard that the government is hiding aliens in Area 51?' You know, everyone has heard that, but you don't necessarily believe it."
At least two jurors nod their head at his response.
The day draws ever closer when Kenny Kerrivan himself must take the stand. Because he can't walk much without gasping for breath, he watches from a scooter beside his attorneys. If it sounds weird to have your weakened condition dissected while you sit by silently, on Day Seven the trial enters a macabre new phase.
Kenny Kerrivan's doctor, Vikram Shah, takes the stand. After coming to the U.S. from India on a fellowship almost 25 years ago, he stayed and pursued training in pulmonary and critical care specialties. Living in Florida, pulmonologists are in high demand. Given a retiree population full of smokers, he estimates 40 percent of his patients have some sort of lung disease or COPD.
Shah is not easy to understand. His diagnosis for Kerrivan, however, is quite clear. He concludes that the plaintiff's physical condition today is the result of a severe smoking addiction, up to four or five packs a day at various points. London seizes upon a phrase in his report.
"At the very bottom it says, 'Terminal COPD.' What does that mean?" London says.
"More or less he's the same at the end-stage of terminal COPD," Shah responds. "Again, it's more likely from the lung-related disease than anything else. The thing is if he develops certain things, there are so many conditions that could lead [to his death]. He could develop lung cancer ... I would say leave it alone until the last day, things like that. COPD and smoking, if he develops heart attack or stroke, it is easy to understand that; but I would not be surprised if I get a call in the next several days or weeks that he had a massive stroke or heart attack."
In essence, Kerrivan sits listening to his death sentence. There's something more than a little surreal about watching someone describe how another person seated only a few feet away will not only die, but die soon. Yet the plaintiff takes the news in stride, listening intently through a set of headphones — as if tuning in a broadcast whose ending he already knows.
When Kerrivan takes the stand himself, he speaks in a dese-and-dose Brooklyn accent as pronounced as Bugs Bunny's. In the Florida courtroom, it only makes the details of his smoking history and his life that much more plaintive. He started with Lucky Strikes before moving to Camels.
"Camels was a good, strong cigarette," he says, noting that he had about a pack-a-day habit. "Non-filtered, and it gave you a good punch." He switched to Marlboro and then Marlboro Lights as he tried to kick the habit, then Ultra Lights.
Years of attempts to quit came to nothing. New Year's resolutions? Failed. Nicotine patches? They left brown spots on his arm and no diminished desire. Hypnosis? "It didn't work on me." Acupuncture? "That's a joke. Somebody sticking needles all in your ears and stuff? That didn't work at all. By the time I walked outside the acupuncture place and got in my truck, I was smoking again. That lasted about 30 feet." Any sustained attempt was met with severe cravings, irritability and the shakes.
"You get the heebie-jeebies," he says. London asks when he finally quit for good.
"Well, I'll tell you what happened. I caught double walking pneumonia, and I don't know if anybody over here has ever had double walking pneumonia. When you have that, believe me, you do not want a cigarette. As it is, you can't breathe."
Kerrivan says he was told he'd be dead in six months if he didn't quit. Even today, though, he is haunted by dreams where he is smoking.
"The dreams are so real, especially mine," he says. "I'm saying to myself in my dream, 'I can't believe I started smoking again.' What? Am I stupid or something?"
Having heard his doctor's prognosis, London asks, what does he think?
"I'm trying — I'm trying to do everything I can to get another day," he replies. "If I can squeeze another day . . . I like when I wake up and there's no dirt in my face."
Davis is up next. His body language is different from other cross-examinations, more adversarial. Thanks to a quirk in procedure, Davis ends up playing video from Kerrivan's original deposition while the plaintiff is still on the stand, and the courtroom turns into Kerrivan v. Kerrivan as the defense chips into his credibility. Was his boss at the vinyl siding job joking about telling him not to smoke? One Kerrivan says yes, one says no. Did his mother tell him she had emphysema? One says no, one says maybe. Did he really need a prescription for the nicotine patch? One says no, one says yes.
The video has a lot of awkward skips and pauses in the edit, though. The deposition ends up losing a couple of jurors, who appear confused.
Davis drills down on the prevalence of warnings, both published and in Kerrivan's life. Why didn't he quit with all of the material that was out there? What comes out, though, is that Kerrivan — a high-school dropout who doesn't read above a fourth-grade level — never understood what the cigarette-pack warnings meant, other than they were bad. Does this affect the jury? With the trial winding down, Davis will know soon enough.
The balance of the trial consists of video depositions of Reynolds and Philip Morris executives and one single defense witness — a pulmonologist who testifies that if Kerrivan had quit smoking earlier, he could have undone his march to end-stage COPD. The plaintiff's case took just over seven courtroom days to present. The defense rests after just 36 minutes.
Closing arguments the next day last four hours. They're mostly a question of addiction: Was Kenny Kerrivan unable to quit smoking? Or did he have the knowledge and ability to quit, as millions of others did? That's what the jury must decide. Everything flows from that issue: choice.
As he finishes, Byrd raises the issue of punitive damages, should the jury find for his client.
"I told you at the beginning that we would — I'd show you a conspiracy, the likes of which we have never seen," he says. "And I want to be really clear. You've heard the figures. The Surgeon General report, it's in evidence; but, you know, the latest numbers are 480,000 deaths a year, premature deaths. More than 20 million people have died prematurely. There's that one graph that says if it keeps up, 5-and-a-half million kids today will die from cigarette diseases. OK?
"But here's the deal. That line right there" — he points to a chart on the screen — "that's not something like an accounting profit line, you know. Those are people. Those are grandfathers and grandmothers. They're aunts. They're uncles. They're mommies. They're daddies. They're sisters. They're brothers. And we showed you the evidence. Make no mistake. The replacement smokers are kids, 90 percent. 90 percent of their business comes from kids starting to smoke."
The defense responds.
"The starting point for your determination, the starting point of punitive damages, is to look at the conduct that caused harm to Mr. Kerrivan," Davis says. "Mr. Kerrivan did not rely on anything from the tobacco companies to make his decision to start smoking or to continue smoking. I respectfully suggest to you there is no clear and convincing evidence in this case warranting the imposition of punitive damages on Philip Morris or R.J. Reynolds. And I respectfully suggest that the answer to that question is no."
Ask Byrd and his team how he thinks it will go and he shrugs. They had a decent case and a good plaintiff, he says, but with virtually no chance for voir dire — the ability to question prospective jury members before trial — it could go either way.
In the end, the jury deliberates for approximately seven hours over two days before returning a verdict. Kenny Kerrivan should be a member of the Engle class and is entitled to damages. They award $15.8 million — almost $6 million more than Byrd had asked for in his closing. Two days later, after a short second phase trial, they will add a whopping $25.3 million more in punitive damages. Last week, the defense filed a motion seeking a new trial because of the size of the award.
Kenny Byrd is back in Orlando this week to try another tobacco case.
Co-counsel Sarah London was made a partner in Lieff Cabraser's San Francisco office at the first of the year. She and John Spragens won a $6 million verdict in an Engle case in Jacksonville last week.
Stan Davis tried one more case for Philip Morris, against Byrd in December. He won, and retired.
The $41.1 million is the largest judgment ever in a federal Engle trial. Because of the length of the appeals process, it's unlikely that Kerrivan will ever see a cent.
