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.”