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Editor: C. Calvin Warriner
Profession: Cigarette & Tobacco Attorney

Category: Tobacco Litigation

If Big Tobacco weren't so busy racketeering in the 20th Century, it might have done the right thing and distributed a "how to" instruction booklet about testifying at your own wrongful death trial. The booklet could have contained the following advice:

First you begin smoking as a young teenager; let's say age 14. Of course, you'll have a much better chance if you start earlier at age 4, like some smokers do. Then you smoke for a while until you become addicted to nicotine. After all, you would not want to have an even chance of quitting, because you would never reach your goal of testifying in court without being there.

You can continue developing your habit, because you'll be getting plenty of help from Big Tobacco. You can depend on the fact that Big Tobacco is going to keep the nicotine levels in your cigarettes dangerously high to satisfy your desire. Besides, you can feel soothing self-satisfaction because you have style when you smoke.

That's the case because Big Tobacco is a "specialized, highly ritualized and stylized segment of the pharmaceutical industry."

(At least, that is what Reynolds Tobacco researcher, Claude Teague is writing in a memo to the top brass in the tobacco industry. While Claude is drafting the memo, you are probably at your peak, enjoying your daily cigarette highs. In Claude's view, the unregulated pharmaceutical, nicotine in cigarettes, is working efficiently to keep you coming back for more. In the late 1960's, nicotine has been dragging you away from your "pre-smoker" status and making you a full-fledged puffer. All you need to do now is to keep smoking at least 5 cigarettes a day).

During any given day, cigarette number 5 will be the one to keep you hooked. So, you will have a better than even chance of participating in your predictable, absentee testimony. Just keep watching Big Tobacco's 60's TV ads for reassurance that smoking's the thing to do and all's well when you do it.

As time goes on, you shouldn't be worrying about waking up to a horrible reality, even If you reach the 1970's. Don't worry. We'll be doing our part to create a kind of hush all over the Tobacco Industry about nicotine being addictive. Big Tobacco will continue to help you toward reaching your ultimate goal by using lots of clever, get-around-the-1969-restrictions ads about how safe it is for you to smoke.

Big Tobacco's secret is safe with you.

(However, you're not safe, but Big Tobacco doesn't want to rain on your parade). Therefore, just keep puffing and you will get that rare opportunity to testify from the grave, so to speak, while Big Tobacco's attorneys watch. Now that'll be a very attention-getting appearance.

While you continue smoking, you don't have to be concerned that the hundreds of millions of dollars spent on Big Tobacco research will be revealing any information that might motivate you to reconsider your habit. Just don't ask, and we won't tell. We will make sure that you won't find out that R.J. Reynolds' scientist, Joe Bumgarner and two dozen of his research associates have found evidence, early on, that smoking causes emphysema. Iit might spoil your sweet dreams about your resurrection.

(Bumgarner et al. were fired in 1970 for discovering that rabbits got emphysema after exposure to cigarette smoke. They made the mistake of wanting Big Tobacco address the issue. R. J. Reynolds had to fire those researchers because the laboratory rabbits were isolated from the general environment. Because of the isolated environment, R.J. Reynolds couldn't blame the rabbits' emphysema on big city pollution, on working with asbestos, or working in a coalmine. Years later, Bumgarner would testify at deposition before a sizeable army of attorneys; many more lawyers than you might find in any one decent-sized town in the United States . The list Big Tobacco lawyers present at that deposition was extenstve. For some reason, Mr. Bumgarner's testimony must have been important enough to command such a large and distinguished audience).

...So, don't do much thinking about how smoking affects your health, just keep on puffing away, you're hooked anyhow, and you really can't quit without having the perserverence of a gaggle of scribing monks, and you probably won't have that kind of perserverence. So don't concern yourself wiith minutia.

During your shortened lifetime, if you feel tired at times and don't have the energy, you can always mesmerize yourself into believing that everything's status quo. Just keep listening to Big Tobacco ads on TV, the radio, in the movies, or by reading glossy ads in every popular magazine.

You've come a long way baby from the time you first started puffing at the tender age of 14. You shouldn't stop now. Besides why quit? There's nothing wrong with smoking. Doctors and Movie stars are telling you that they do it all the time, and they love it.

What does the Surgeon General know, anyhow? If by chance you make it to the 1990s, you will hear that there's still no proof, after hundreds of millions of dollars of research showing otherwise, that smoking is harmful; it's still only a myth. Just keep fucusing on your goal.

(At a Congressional hearing in 1994, a team of Big Tobacco's CEOs [with the perserverance of a gaggle of scribing monks] testified that nicotine was not addictive).

But enough of this peripheral advice. Let's get to the point.

If you smoke in the latter half of the 20th Century, you'll have a good chance at "being there" for your posthumous day in court at the beginning of the 21st Century. Pay close attention, now. Be sure to keep good records along the way, just to be sure that you'll have enough evidence to go to court in the first place. It's going to be a hurdle obtaining decades-old records. So get those empty folders ready. Be certain to request certified records from your health care providers every now and then, and always question them about the exact date of your diagnosis. Courts can be very finiky about lapses of time. Any your attorney will be "hog-tied" and unable to proceed on your behalf, if there's no available documented evidence.

That's what Big Tobacco should have told their consumers right from day one. But Big Tobacco was too busy cooking up the decades of deception that produced unsuspecting candidates, like Jean Connor, for posthumous testimony.

Jean Connor was a consummate chain smoker, the first witness to testify at her wrongful death trial. She testified in an hour-long videotaped testimony in 1997. That was two years after Jean had died at age 49 of lung cancer. And Lance Burton wasn't even present in the courtroom to wave a magic wand to make it all happen. Jean became hooked on cigarettes sometime in 1960 at the age of 14, and she never looked back.

(At trial, Big Tobacco's attorneys got to do something that Jean couldn't do, watch her video. They were probably all thinking that the Tobacco lawyer that cross examined Jean in the video wasn't really on top of his game...that any one of them could have done a better job at cross-examining Jean, if she were actually present in the courtroom; those attorneys were far removed from Jean's pain and suffering. They had lived two years longer than Jean, pain free, and they weren't sitting only five feet away in Jean's presence like their Big Tobacco colleague was in the video. He wasright there, bedside, watching Jean writhing in pain during her testimony. That'll tug at anyone's heartstrings, even if there are only a few such strings left to tug on).

In the aftermath of the kind of horror described above, one court has stated the following:

A legal basis for punitive damages is established in products liability cases where the manufacturer is shown to have knowledge that its product is inherently dangerous to persons or property and that its continued use is likely to cause injury or death, but nevertheless continues to market the product without making feasible modifications to eliminate the danger or making adequate disclosure and warning of such danger.

(The above quotation and the basis for this blog was taken from a summary of testimony during Jean Connor's trial, and from the court's earlier Order Granting Plaintiff's Motion And Proffer To Plead Punitive Damages Against Defendant; R.J. Reynolds, Raulerson v. R. J. Reynolds Tobacco Co., Case No. 95-01820-CA., Florida 4th DCA).

At age 49, Jean had lost her battle to live, and in 1997 Jean's estate had lost at trial, but it seems clear that in the future...

There ought to be a penalty.