Tobacco On Trial

Updated Jun 16, 2005, 6:33 AM

The Rosens, Meyer and Selma, as much as they may have suffered and struggled, are not coming off as particularly sympathetic. Worse, they may have serious credibility issues in the minds of jury members.

Certainly, if your two 500-page depositions were 5 years ago, you’re not going to remember everything you said, you’re not going to remember every subtle line of questioning that eventually wound up with a Yes or No answer, which, out of context, you may not agree to today. Make it a game–analyze how they got there with you. Or just read it 5 or 6 times carefully. Do whatever you have to do, but be very aware of what you said. Because it just plain looks bad when you answer differently on the stand, even if you have a valid explanation. Isn’t there a witness guidebook somewhere that goes over this seemingly basic rule?

Partly because of this issue, Selma Rosen did not come off well in her cross-examination. No one thing was unforgivably damning, it’s just that when the Defense finds these discrepancies, one after another after another– well, it adds up.

Selma Rosen is 61, about 5′ 1″, a thick woman with short, reddish brown hair. She appeared today in a black jacket over a red top.

Mrs. Rosen was seriously addicted. I can’t think of anyone more flat-out hooked, nor can I think of anyone who exerted a more heroic, Everest-worthy effort to quit smoking. She tried everything–group hypnosis, individual hypnosis, acupuncture, Smoke-enders, Nicotine Anonymous, and finally, with success, the Caron Foundation. All of these took time and cost money–quite a hardship as she struggled hold down a job, raise a family and send two boys to college. It became clear that in her two successful quit smoking efforts (1983 and 1995), she needed constant support, both to quit, and to stay quit. National Smoking Cessation Program planners should take note that constant support, 24-7, was absolutely necessary to Selma’s quitting. She broke down on the stand when she told how, when starting to smoke again in 1989 after a 6 year hiatus, she found out the SmokEnders hotline had closed down.

“They weren’t there anymore. They promised they’d be there the rest of my life. They went out of business or weren’t answering.”

Even today, she still goes to Nicotine Anonymous, terrified of beginning smoking again, and she still sees the addiction counselor she began seeing after she returned from the Caron Foundation 10 years ago.

Mrs. Rosen seemed a certain kind of New Yorker, eminently charming when she cared to be, but somewhat abrasive, aggressive and she would not be hesitant to let everyone know when she was displeased. She seemed not exactly a take-no-prisoners type: no, she has a heart, she’d take prisoners–but grudgingly, while letting them know exactly how much a pain in the butt they were. By the end of their association, some prisoners may have wished she’d just shot them at the beginning.

This type of personality, to me, fits in not only with her success in high-pressure, high-energy sales, but also with the amount of human support she needed to quit smoking–calling the Quitline several times a day, and still today going to Nicotine Anonymous 5-6 times a week.

Plaintiff’s attorney Mark Holt showed a 3-minute video of home movies edited to show Selma smoking. Even in these, she seldom smiled, though when she would–either in the movies or on the 2 or 3 times she did so on the stand–her smile, not to put too old a cliche on it, lit up the room.

The home movies had a telling scene that, had I seen it in a fictional movie, I may not have accepted, it seemed so obvious. She was being shot at the beach or pool, and suddenly turned toward the camera. Since there was no sound, I had to lip-read, but it seemed crystal clear that she said, “What?” to whomever was filming. “What do you want me to do?” The person behind the camera obviously said something like “Smile!” and suddenly she did break into a full smile, genuinely, brightly, but quickly dropped it and turned back to her activity. Possibly in response to further prompts from the cameraperson, she turned and smiled again, but this time in an archly fake fashion.

I had thought, based on her present appearance, she may have been quite the beauty in the sixties. Oddly, in these films, and perhaps it was because of the fashion of the day, she seemed somewhat plain–except for that powerful smile.

Of course, the substance of the case doesn’t turn on her likability, or even if you sympathize with her. But you’ll have trouble finding for her if you don’t believe a word she says, and her credibility took some serious hits.

Her attention to the health issue, as with Meyer Rosen’s, did not seem entirely credible. She claimed she wasn’t cognizant of the “smoking may cause lung cancer” warning on cigarette packs (which began appearing in 1985) when she resumed smoking in 1989.

Also as with Meyer, there were discrepancies between her depositions in 2000 and her current answers–some of the discrepancies were satisfactorily explained, some were not.

Not well resolved was her remembrance of that day in 1955 when Eddie Ginsburg (where are you today, Eddie? See the trouble you caused?) offered her a cigarette in the schoolyard, and showed her how to light it with his Zippo. Today, she remembered it as a Lucky Strike; in her deposition, she wasn’t sure what brand it was.

Another inconsistency seemed more the result of semantics and context. Mr. Gordon asked how she had felt after smoking that first cigarette. He asked if she’d felt sick, dizzy and lightheaded. She said, yes, but didn’t know about the sick part. Mr. Gordon showed her her deposition from 2000:

Q: How did that first cigarette make you feel?

A: Sick

Q: Can you elaborate upon that?

A: Dizzy, lightheaded.

Mr. Gordon began to hammer her (gently, of course) about having taken an oath to tell the truth. She said she was referring to being dizzy; “lightheaded” was her definition of feeling sick.

But serious damage was also done during the previous testimony that morning of economist Dr. Thomas Fitzpatrick. Dr. Fitzpatrick was brought in to establish the dollar amount of loss due to Mrs. Rosen’s lack of employment, her lack of resulting pension, and, according to calculations based on a 1992 Cornell study, her inability to perform “household services.” He was shown Mrs. Rosen’s deposition in the 1999 auto accident case, wherein she testified as to the household duties she could no longer perform–laundry, cleaning, etc. The direct implication of the deposition was that these were duties she could do before the accident–the very duties that are a part of her claim in this case. Parsing which aspects of which duties she couldn’t do as a result of the 1995 surgery, and which further aspects she couldn’t do as a result of the 1999 auto accident seemed a greater task than anyone cared to perform. It just looked bad.

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Thanks for the Memory

One sequence of her testimony could have gone far to building her credibility, and even a little sympathy.

The question from Defense attorney Harold Gordon concerned how much she smoked at the age of 11-12. In her deposition, she had said she was smoking less than one cigarette a day, whereas on the stand Mrs. Rosen said she smoked more than that, because she had promised her mother to smoke only one cigarette a day, and she remembered that she had never kept that promise. She explained, reasonably, that she was had not been answering strictly from memory, but “I came to realize, I was figuring it out, and not remembering it.” Reasonably enough, the promise functioned as a sort of proxy for her smoking: she calculated how much she smoked based on the promise, not on any incident where she remembered, “Oh, I’m 12 years old now, and I’m smoking 7 1/2 cigarettes per day.”

Mr. Gordon asked her, somewhat facetiously, if her memory of her childhood smoking habits had improved since the deposition.

Yes, she said, it had improved. And, she said pointedly, precisely because of the Defense. A private investigator had appeared, unannounced, on the doorstep of a childhood friend to ask about Selma. The investigator had told the friend Selma’s married name; and so later she had called, and they had been able to get together and talk over old times. “So yes,” she said, “my memory was better after that.”

“Well,” said Mr. Gordon, “I’m glad we’re rekindling old friendships.”

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Mrs. Rosen’s integrity survived one potentially treacherous line of questioning at the very beginning of Mr. Gordon’s cross. Mr. Gordon first assured Mrs. Rosen that, since it was late in the day, he didn’t want to tax anyone’s endurance, and she should feel free to let him know if she wasn’t feeling well. Then he said he had “noticed” that she has been here every day of the trial, and hasn’t missed a session. He asked if she still drives, and she said, yes. He said he’d noticed she and her husband don’t always arrive together; perhaps she drives here “on occasion?” She said there may have been one day she drove, when Meyer went to the doctor for his ankle. Mr. Gordon established that the drive from her home to the courthouse takes about 20 minutes.

I assume, had she answered in the wrong way, that we would have seen video of her driving into the courthouse partking lot; I wonder how extensive the surveillance–er, “noticing”– is.

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One potentially sympathy-producing issue will undoubtedly not be formally introduced as evidence, but struck me hard. You have to look at the Rosen family history here and say, oh, geez, smoking just destroyed this family. Defense, in trying to establish heredity as a risk factor for lung cancer, introduced a laundry list of Rosen family members who had died of various cancers. Mr. Holt in rebuttal pointed out that all but one of these family members were smokers. Mrs. Rosen’s own father had died of a heart attack at the age of 50 in 1955–the year she herself began smoking.

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Mr. Holt asked Mrs. Rosen how does a kid of 11 get cigarettes? She said, you just walked into the candy store and asked.

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The addiction issue seems the most well-established so far, but at the end of the afternoon session, Mr. Gordon brought out a 3-4 week period in which Mrs. Rosen and her then-husband quit together–with, seemingly, none of the dire travail that accompanied her other attempts.

This issue will be addressed further tomorrow afternoon.

In the morning, court will address the report of the Defense’s psychiatrist, Dr. Gutheil, who saw Mrs. Rosen for 2 hours.

This entry was posted on Wednesday, June 15th, 2005 at 7:10 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.