Tobacco On Trial

Covering a product liability trial is very different from covering the government’s RICO suit. In the New York State Supreme Court courthouse in Mineola, everything brought me back to something about the DOJ trial. I couldn’t help comparing the judges, the cafeterias, the press rooms, the courtroom itself and the lawyers.

But mostly I thought of DOJ attorney Joel Schwartz’s aunt. During Mr. Schwartz’ cross of RJR’s Dr. Jeffrey Gentry in the RICO suit, he had accused the Defendants of “killing peoples’ relatives,” and mentioned his aunt, who’d died of a smoking related disease.

But that outburst was a short personal blip in the “overarching scheme” of the RICO case. Here in the Rosen case, the personal cost of tobacco is central, and exists in the flesh of Selma Rosen (born Schwartz), a short, reddish-brown-haired woman of 61.

I admit I’m a bit off-balance here. It is much, much harder to affect the bemused observer in the face of such personal loss.

Monday afternoon, you could actually see Mrs. Rosen’s reactions as her husband Meyer Rosen recounted from the stand their tale of utmost woe–and devoted love. Mr. Rosen gave a vivid account of the horror their life had become since Selma’s diagnosis.

Mr. Rosen, 62, is about 6′ tall, with a long, somewhat mournful face and a wide fringe of dark hair. He had met Selma in 1986, and had married her just 5 days before her diagnosis in 1995. He married her then, he said, because he knew she was in suspense about the possibility of lung cancer, and he wanted to provide her with a sense of stability. “I wanted something for her to come back for, something powerful–that was my love for her.”

Mrs. Rosen’s life before the diagnosis wasn’t exactly trouble-free. She had re-taken up smoking again in 1989, under the stress of financial and family problems. When, after several tries, she was finally able to quit in 1995–a few months before she was diagnosed with lung cancer–it was because she went to the Caron Foundation retreat for a week.

www.caron.org/

Apparently, the Foundation requires you to smoke a last cigarette before entering the program, which she did. Defense attorney Harold Gordon went to some pains to establish this:

“The fact is, Mrs. Rosen smoked her last cigarette _before_ entering the Caron program?”

Yet, in the 90s, she had a job she loved and was good at– she had been the top business development sales person in New York State for NatWest Bank.

But that was before the surgery. “In one day,” Mr. Rosen testified, “she went from that life to laying on a couch.”

On October 17, 1995, doctors at Sloan Kettering did exploratory surgery, and after an hour told the waiting family they would have to remove part of the lung, and that the surgery would take much longer. These were the days family members were kept out of patients’ rooms, but Mr. Rosen managed to get into her recovery room and said she was only saying one word, over and over: “Pain. Pain.”

And no wonder–Mr. Rosen stood to illustrate the extent of the incision–the doctors had sliced her from just under the left shoulder-blade, going well under the right, around the side under her arm, and on to her solar plexus.

Today, Mr. Rosen said, she is in constant pain, is on medication, is depressed, has psychiatric care, and still has dreams of smoking–still has cravings. Mr. Rosen said their relationship had changed terribly–now their conversations were all about Selma’s condition–her problems, her needs and her pain.

Mrs. Rosen listened to this part of the testimony with one hand covering her face.

Mr. Rosen said one of the things he admired about her was her activism, how she became took part in programs at the hospital, encouraging people to help them find cancer in its early stage (as she had, through sheer luck), how she went to conferences to tell the patient’s point of view to doctors, and how she established the Lung Cancer Society of Long Island.

Mr. Russo said he didn’t want to embarrass Mr. Rosen, but had the cancer impacted his physical relationship with his wife?

Mr. Rosen said, “I’d say devastating.”

And besides the physical? Mr. Rosen said they were going to doctors all the time, because this hurts, that hurts, her fear of getting another one.

MR. ROSEN: “It uses up a lot of energy in our house… in our lives. For the last 9-10 years, most of the conversation is ‘Selma hurts,’ ‘Selma can’t do this…..”

MR. RUSSO: Your world is limited?

MR. ROSEN: Absolutely

MR. RUSSO: You still love her though?

MR. ROSEN: To the end of my days.

When Mr. Gordon began his cross, he introduced himself and said, “It’s nice to meet you… I’m sorry about your ankle (Mr. Rosen had broken his ankle a few weeks ago, and walks with a thick-handled cane), and I wish you a speedy recovery.” The jurors looked fairly skeptical.

Mr. Gordon pointed out that even with siblings and 2 wives smoking around him, he himself had never even touched a cigarette. Mr. Gordon tried to establish that he knew smoking was harmful. He asked if he’d ever heard the term “cancer stick.” Mr. Rosen said he’d heard the term once or twice, but didn’t take it as a medical certainty, more as a joke. Mr. Rosen also testified that when he encouraged Selma to quit, he had not done so on the basis of health effects.

Mr. Gordon had more luck with the term “nicotine fit,” as Mr. Rosen said he did take that as indicating addiction.

Mr. Gordon established a number of relatively minor inconsistencies of Mr. Rosen’s current testimony with his deposition 4 years ago. Some of these involved whether Selma had told him that she “enjoyed the taste” of cigarettes, or that smoking helped relaxed her. Mr. Gordon had a way of asking a question, then trudging over to the document person, as if to say, “I’m sorry I have to do this, but . . . ” before bringing up a contradictory document on the 4 x 4′ home-movie screen.

Mr. Gordon asked if Mr. Rosen was aware of any doctor telling Selma, “I’m sorry, you’re just too addicted, we can’t help you [quit smoking].”

Mr. Gordon established that Selma had never told Mr. Rosen she began smoking because of anything American Tobacco had said or done, other than the mere fact of having cigarettes for sale on the supermarket shelves.

Mr. Gordon asked Mr. Rosen about a 1999 lawsuit, resulting from a car crash, in which Mr. Rosen also asked for compensation for loss of consortium, to the tune of $50 million. Mr. Rosen said that figure was the lawyer’s idea. (The case was settled for $12,000.)

Mr. Gordon noted that the website for Mr. Rosen’s consulting business notes that he is well-skilled in depositions. Mr. Rosen has been involved in over 400 cases. (In redirect, we learned he has actually testified in 2.)

Mr. Gordon did do some damage to Mr. Rosen’s credibility–enough that at one point I thought that if one major discrepancy were shown, it would be all over for him in the jury’s mind. But, for me at least, that moment never came, and Rosen attorney Dan Holt did a good job of reclaiming him on redirect.

During Mr. Rosen’s fairly gripping tale of woe, two jurors sat with arms folded and harsh expressions, as if defended against its import.

This entry was posted on Wednesday, June 15th, 2005 at 12:00 pm and is filed under Notes. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.