Interview with Rosen attorney Mark Bower: Looking for Mr. Goodtar

June 23, 2005 10:51 pm by Gene Borio

In an exclusive interview with tobaccoontrial.com, Selma Rosen’s attorney Mark R. Bower said that despite last Monday’s directed verdict for B&W/ATC, he’s “not out of the tobacco business,” and is actively looking for “perfect” cases.

He said the news item that reported Judge Ute Wolff Lally had found Mrs. Rosen was not addicted was wrong. Mr. Bower said Judge Lally had found that Mrs. Rosen was addicted. However, the judge had “bought into” the idea that Mrs. Rosen could quit. She didn’t understand the concept of addiction, he said. And indeed, given the documented intensity of Mrs. Rosen’s addiction, it is hard to think of any drug or situation where an addicted person would go to greater lengths in order to quit. Apparently Judge Lally’s definition of addiction is that it is a behavior that is flatly impossible to quit.

An RJR press release summed up the verdict this way:

Justice Lally found the plaintiffs had offered insufficient evidence that Rosen could not quit smoking and that, because of her indifference to warnings she later received regarding the health risks of smoking, an earlier warning about the risks of smoking would not have made any difference on her decision to smoke.

On a more difficult issue, Mr. Bower said Judge Lally also didn’t buy into the concept of indirect causation. The fact that Mrs. Rosen smoked different brands most of her life, Mr. Bower said, did not break the “chain of causation” to Lucky Strike, which she had smoked from ages 11-15.

Mr. Bower said that part of the argument he would have made at closing was that if you have 10 cars stopped and an 11th car smacks into the 10th, which in turn smashes into the 9th, etc., like a row of dominoes, the fact that the 2nd car collided with the 1st doesn’t mean that the 11th car isn’t to be held responsible. This, he said, is an “easy matter of law,” and well-established. In the Rosen case, he said, you can think of it as a “chain smoker collision.”

After the dismissal on Monday morning (June 20), Mr. Bower said he spoke with 5 of the 8 people in the jury box (6 jurors, 2 alternates). He said Defense counsel was also speaking with various jurors.

The jurors told Mr. Bower that they were “annoyed” that the case was taken away from them. “They wanted to make their own decision.,” he said.

I said they had not looked sympathetic to me, but Mr. Bower claimed the jurors he spoke with were indeed favoring the Rosen side. “We were definitely winning at that point, that is–granted–before Defense began its case,” he said.

I mentioned B&W attorney David Wallace’s argument for a directed verdict on the previous Friday. I had thought his presentation was quite strong — but his arguments had seemed so basic to the case that, if true, the case should never have been allowed even to begin.

Mr. Bower, who had argued a version of that point Friday, said the Appellate Division had looked at these issues and said, you need a trial on these issues. “They didn’t say you need a directed verdict on these issues. They said you need a trial, for a jury to decide them.” (The case was first filed 8 years ago, in 1997.)

When asked if he would appeal, Mr. Bower said, “maybe,” then turned to his broader plans.

“I’m not out of the tobacco business,” he said. He is out there looking for “perfect” cases, people who smoked only one brand, people who started young, and who were diagnosed relatively young. He is currently interviewing smokers and their families, and has talked to “quite a few.”

I said that I had no idea of the figures, or even if anyone has ever studied life-long brand loyalty. “How many smokers stick with one brand all their lives?” I asked.

Mr. Bower said manufacturer-loyalty would be enough. B&W makes 20 brands, he said. A smoker who went from Marlboro to Marlboro Lights? I suggested. Yes, he said. But still, I asked, how many manufacturer-specific life-long smokers are there out there?

“With 450,000 smokers dying every year [of tobacco-related diseases],” he said, “there must be thousands.”

3 Responses to “Interview with Rosen attorney Mark Bower: Looking for Mr. Goodtar”

  1. krueger Says:

    A key feature of both industry PR and legal strategy is to water down “addiction” as term and concept. Oh, he could have quit.

    The rhetoric comes in two forms, hard and soft.

    Hard is outright denial: it’s not addictive. If people can quit, it’s not addictive. But people can and do quit cocaine and heroin. Does that mean they’re not addictive?

    Soft: well it can be hard to quit but people do. No outright denial, just incredible mimimizing. Of course, it can be hard to quit cocaine and heroin but people do. Does that mean those substances are without power over people’s lives?

    Behind the rhetoric is the strategy: shift the focus, shift the blame; give an inch, gain a decade.

    Shift the focus from product to customer: talk about addicted customer, not addictive product. Talk about the behavior (”smoking is addictive”), not the what the product used as designed does to the customer.

    Shift the blame: it’s the customer’s fault he didn’t break his addiction, never the industry’s fault it engineered the product as a highly optimized drug delivery device. Oh, he could have quit. His disease is his fault because he didn’t quit.

    Give an inch: appear to have conceded the point, make a big deal about that in fact: look how reasonable we are. We’re a “responsible tobacco company”. Gain a decade: while saying “addictive” somehow that becomes the customer’s fault, there’s nothing wrong with engineering a product for addiction or peddling a lethal, highly addictive product.

  2. tobacco observer Says:

    Mr. Bower might have a better time finding “perfect” tobacco cases if he refused to represent clients who contradict their own sworn testimony on the witness stand, the way Ms. Rosen did about what brand she started smoking, how many cigarettes she started with, about her ability to do work, and several other key areas of contention.

    Its really not too much to ask for the plaintiff to get their stories straight prior to taking the stand, and needless to say, (and despite the plaintiffs attourneys claims to the contrary) juries don’t much care for plaintiffs who appear to change their stories to suit their case at trial.

    With respect to addiction, I think it was fairly well established at trial that Ms. Rosen was addicted to cigarettes. That wasn’t really the main issue at trial here, and that wasn’t why the case was dismissed. There was also no debate here about whether or not Ms. Rosen “could” quit. . .by her own admission, she DID quit for six full years from 1983-1989 and for at least one other shorter period after that.

    The large issue was whether or not it was fair to assign liability to the defendant for Ms. Rosen’s injuries, even though Ms. Rosen only smoked their cigarettes in limited quantity for a short period of time, 50 years earlier. The judge decided that considering everything she knew about smoking, and considering the remoteness of the injury from the plaintiffs’ alleged bad actions, and considering that she stopped (and started) smoking multiple times in the ensuing decades, there was insufficient evidence to assign liability. Since Ms. Rosen could (and did) quit, addiction alone could not be the proximate cause of injury in this case. Put more simply, Bower’s “unbroken line of cars” theory just doesn’t hold water given the facts of this case.

    Now, common sense would suggest that if Ms. Rosen were injured by smoking that she should attempt to blame the company that manufactured the cigarettes she smoked for the last 20 years. . .ie the ones that most likely actually caused her injury. So why didn’t she do that here? Why didn’t she blame the makers of the cigarettes that actually gave her the cancer, instead of the ones she smoked a few packs of when she was 14? The answer is that she couldn’t do that because of assumption of risk issues. *Those* cigarettes carried warning labels. She clearly knew they cigarettes were harmful otherwise she wouldn’t have quit smoking them. “Addiction” was simply the excuse used by the plaintiff to try and connect her current injury with the defendant.

    To make a clearer analogy, it would be like me blaming my cirrhosis on Budweiser, even though I’ve been a drunk living on nothing but rotgut whisky for 45 years, because for one summer when I was 14 years old, I used to get drunk on Bud beers at camp parties.

  3. krueger Says:

    “cigarettes she smoked for the last 20 years. . .ie the ones that most likely actually caused her injury”

    But of course. And if you fall off a 200 foot cliff, it’s just that last foot of the fall that hurts. Until you hit the ground you were doing fine!

    Oh wait; it’s the first foot. It’s the slip.

    “Addiction was simply the excuse…she knew they cigarettes were harmfull…clients who contradict their own sworn testimony”

    Beautiful example of the PR I’m talking about. Blame the customer. Accept the word “addiction” but then trivialize it. Ignore the facts of addiction; redefine the term to suit Big Tobacco’s interests. Shift the focus to the customer; blame the customer. Never, ever, mention Big Tobacco’s real use of addiction: to get and keep the customer chemically dependent on the product. To design and engineer product as a highly optimized drug delivery device. And cover that up for decades. Shift the focus away from that. Blame the customer.

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