By Diana Digges
© 2002 Lawyers Weekly
|A small-firm attorney
tried a tobacco case won the largest verdict ever for an individual
against the tobacco industry on June 6. The Los Angeles jury found
Philip Morris liable on eight counts, awarding $5.54 million in
and $3 billion in punitive damages to Richard Boeken - a
smoker and former heroin addict.
Attorney Michael J. Piuze won his historic victory with the help of a ponytailed paralegal named Ray Goldstein, the undisputed master of the mountainous arsenal of tobacco documents. Goldstein had helped attorneys win two other massive California verdicts against the industry - one for $51.5 million (later reduced to $25 million) and the other for $21.7 million. Goldstein strolled into town three weeks before the Boeken trial with a laptop full of documents and a crusading zeal that matched Piuze's own.
"Without Ray Goldstein, I
said Piuze. "He knows where all the skeletons are buried, where all the
best documents are. He did major triage."
And Piuze, no slouch himself, went to work. The products liability lawyer in him, accustomed to taking on California's toughest cases, was astonished by the wealth of documents at his disposal and the damnation they promised for the defendant.
"The documents told the story," said Goldstein. "But Mike was the maestro, who opened up the moral issue of the behavior of corporations, of corporations killing people. He elevated the trial to a higher level."
Part of Piuze's passion for the case stemmed from his identification with his client. Like 57-year-old Boeken, Piuze had started smoking as a young teen and quickly developed a two-packs-a-day habit that he didn't quit until 20 years later.
Richard Boeken began smoking when he was 10 and was up to two packs a day by age 13. In October 1999 he was diagnosed with lung cancer, which metastasized to his spine in August 2000, then to his brain in December.
As a rock musician, Boeken had developed a three-month addiction to heroin, followed by a two- year dependency on methadone. He was also an alcoholic. But while the "character issue" looked like a liability, Piuze turned it around. By 1976, Boeken was clean and sober, having managed to kick heroin, methadone and alcohol. Yet he was unable to get off nicotine, despite repeated attempts to do so on his own, via hypnosis and in Smokers Anonymous.
This inability to quit nicotine underscored the tenacity of the drug compared to the other substances Boeken had managed to shake off. That such a highly addictive and harmful product was peddled by corporations that knew and hid its dangers was at the heart of Piuze's case. He had proof that his client had exercised the personal responsibility to successfully confront serious substance abuse. He also had proof that the tobacco industry had done exactly the opposite.
The plaintiff contended that Philip Morris never tested its product for carcinogenic effects, concealed the degree of danger of its product and conducted a disinformation campaign for more than 45 years to convince the public that the health risks were inconclusive. Further contentions included a failure to warn that light cigarettes were as dangerous as full-strength and a decision not to manufacture an "almost-safe cigarette" because the company did not want to endanger Marlboro's dominant market position.
But the defense was also compelling, and for more than 40 years it proved unbeatable. The industry's "assumed risk" argument was simple: Everyone, including Richard Boeken, has long known of the dangers of cigarettes, whether full-strength or light. It was Boeken's personal choice to smoke and the defense contended that by doing so, he accepted the responsibility for whatever health problems that behavior would cause. "In order to win a case against the tobacco industry, you have to pierce this bizarre illusion that it's the plaintiff's fault, that it's the plaintiff who is on trial," said Goldstein.
Piuze knew the power of the personal responsibility argument. He knew his biggest obstacle would be juror attitudes. He doesn't usually use jury consultants and mock trials, but he did in this case, and the findings disheartened him. Even in health-conscious California - and even after 10 years of anti-tobacco education - Piuze's own mock trials told him jurors are extremely receptive to arguments about personal responsibility and assumed risk.
"Both groups said the same thing: 'The guy knew, the hell with him.' Into the teeth of these negative advance reviews, we picked a jury and tried a case," he said.
Using internal documents from the tobacco industry, Piuze demonstrated a 45-year-history of fraud and deception by corporate executives. Included was the famous 1953 memo of tobacco executives planning in New York how to counter the threat to their business posed by health reports on the dangers of smoking in Readers Digest.
Another internal memo on
of the Council for Tobacco Research clearly stated it was merely an
shield," set up in 1954 as the Tobacco Industry Research Committee. The
CTR, which was promoted as an independent scientific research group,
in fact funded by the tobacco industry "to refute unfavorable findings
or at a minimum to keep the scientific question open," according to a
To buttress that argument, Philip Morris hired historian Elizabeth Cobbs-Hoffman who analyzed coverage of smoking in the Los Angeles Times from 1950 to 1993, finding 37 positive articles about smoking, and 2,700 negative ones, according to Piuze. From the defense point of view, the notion that the plaintiff, smart enough to be making $250,000 to $300,000 a year selling gas and oil securities, would not know that cigarettes were dangerous was unbelievable.
But outside of the courtroom, industry executives had acknowledged that the "free choice" argument evaporated in the face of addiction, as indicated in memos introduced at trial. A 1980 internal Tobacco Institute memo stated:
" Shook, Hardy [principal industry attorneys] remind us 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.' "And memos from Philip Morris' own top researchers in 1958 and 1959 mentioned ingredients known to be carcinogens at the time and discussed in great detail the psychological nature of addiction.
Armed with these documents, it wasn't hard for Piuze to demonstrate that his client was, indeed, addicted and thereby dismantle the industry's assumed risk argument: Boeken had started smoking at age 10 and was smoking two packs a day by age 13 - long before he could be considered legally capable of exercising free choice. His ability to quit heroin - contrasted with his inability to kick the cigarette habit - only strengthened the argument that he was addicted.
Piuze further undermined the industry's credibility by spotlighting their blatant lies to Congress.
"This was their pitch at trial: 'Anyone who says they didn't know [cigarettes are bad for you] is lying.' So I asked professor [Cobbs-Hoffman] to look at a clip of the seven CEOs testifying under oath in 1994 before Congress. Every one of them says cigarettes are not addictive and don't cause lung cancer. They lie, then they lie, and then they lie some more," said Piuze.
In his cross-examination of Cobbs-Hoffman, Piuze focused on the implications for society of that denial. He elicited from the witness a cynical picture of corporate executives whose indifference to truth and morality was taken for granted by the public.
Piuze: As a historian, have things gotten so out of hand that the populace should listen to the head of one of the largest corporations in the world and just say, that guy is a lying sack? Is that how far it's gone? Is that where we are historically?Piuze contrasted the industry's denial with the death toll from the product itself. "So, while the company is basically saying, 'You were fools for listening to us' as their defense, 400,000 people in the United States die from their product every year," said Piuze. In short, Piuze took the individual plaintiff out of the trial and concentrated on making society's case against the industry.
"Piuze needed to
this was not just a medical case, but something much broader - 8,000
dying every week from cigarettes. That was the context. The sub-context
was that Philip Morris makes $100 million a week in domestic profits.
moral perspective was front and center in this trial," said
The Trial-In-A-Box concept brings down the costs and reins in the intimidation. A package of tried- and-true resources, it includes all the pleadings, depositions, transcripts and evidence from the Boeken trial - and relevant documents from other trials.
It is a counterpunch of sorts to the longstanding practice of the tobacco industry to bury the opposition by driving up costs, a practice made clear in yet another internal memo - this one written in 1988 by R.J. Reynolds attorney Mike Jordan to the Smoking and Health attorneys:
Piuze said he spent $400,000 in preparation for trial. Much of it went to witnesses and a jury consultant, as well as to Goldstein, who was with him every day in trial, hooked up to his database." The aggressive posture we have taken regarding depositions and discovery in general continues to make these cases extremely burdensome and expensive for plaintiffs' lawyers, particularly sole practitioners. To paraphrase General Patton, the way we won these cases was not by spending all of Reynolds' money, but by making that other son of a bitch spend all his. "
"Whenever a document was needed, Ray would come back with it in five minutes," said Piuze. "This was not a bare-bones case. We had witnesses from England, Miami, Providence and Washington State."
Piuze believes that such cases could be conducted in the future for $250,000. And cooperation among plaintiffs' attorneys is helping to bring the costs down. He borrowed from Madelyn Chaber who borrowed from Woody Wilner and so on. He also brought in some critical members of Chaber's trial team. In addition to Goldstein, he also praises the work of Holly Hostrop who did all the legal writing for the Boeken case.
"Teamwork is a concept we pay lip service to in the plaintiffs' bar, but in this case, it was really true," said Piuze. "This material was unearthed in cases brought by the attorneys general. Who went through the millions of documents? Lots of really diligent lawyers around the country. The stuff didn't come out all at once."
Piuze pointed out that despite the recent winning streak by plaintiffs' attorneys, Big Tobacco still prevails in most of its cases, a fact that deters many small-firm attorneys.
"The intimidation factor cannot be overstated," said Piuze. "These are second- and third-tier lawyers taking referrals, and you have to understand that everyone is afraid the rug will be pulled out from under them at the last minute. They're afraid George Bush will declare immunity [for the industry]."
Philip Morris declared the verdict an "outrage" and filed motions for reversal and mistrial. On August 9th, Judge Charles McCoy reduced the punitive damages portion of the award to $100 million - a week's profit for Philip Morris' domestic operations. However, he rejected the tobacco giant's motion to reverse the verdict or declare a mistrial. In his 27-page ruling, he wrote, "Philip Morris' conduct was, in fact, reprehensible in every sense of the word, both legal and moral."
Can plaintiffs' attorneys unschooled in tobacco litigation handle these cases? Piuze did, of course, but he is no ordinary lawyer. Named by California's Daily Journal as one of the state's 100 most influential attorneys, he has a reputation of taking and winning the state's toughest cases.
For other plaintiffs' attorneys keen to jump into the game, it's tough but getting easier, according to Richard Daynard, of Northeastern University's Tobacco Products Liability Project. The cost of getting cases to trial is dropping and juries are increasingly siding with the victims, he said.
"Plaintiffs have achieved a 30 percent success rate for individual claims reaching trial since 1999, a rate that is more than sufficient to encourage first-rate attorneys to bring these cases in the future," said Daynard. Whether they can do so in venues other than California, Florida and Oregon is still an open question.
"These are the trailblazing states. What we may see happen first is a series of victories in states like California and Florida before the climate changes a bit," said Edward Sweda, senior attorney with the Tobacco Products Liability Project at Northeastern University. "If you can get past the basic defense of personal responsibility - as defined by the industry for consumers, but not for manufacturers - if you can get beyond that, I think you'll see some victories in various states around the country."
The real question is whether attorneys can bring in the victories without Ray Goldstein, the 'bad news for big tobacco' paralegal.
"Small-firm attorneys can do this," insisted Goldstein. "The documents tell a simple tale. I felt our trial against Philip Morris was like a battle of master puppeteers. On one side was the defense, the invisible puppeteer in sky and their marionette lawyers. On our side, we had more like a ventriloquist act, me with Michael sitting up on my knee. But he was no dummy. He used these documents in such a very nice way."
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