8 Plaintiff Attorney Oversights That Undermined Plaintiff’s Case In Latest Trial Against Philip Morris

In a recent design defect verdict in favor of the Defendant, cigarette manufacturer Philip Morris USA, Inc., counsel for Plaintiff fell short of convincing the jury that the Virginia Slims cigarettes at issue were defective by reason of their design. Despite putting forth a decent effort for their client, Plaintiff’s attorneys undermined their case-in-chief in observable ways. This article discusses eight of Plaintiff’s faux pas, big and small. Additionally, the author provides some tips to trial counsel, where inspired.¹

1. The Plaintiff ATtorneys focused their case on a “Presentism” Theme, which proved out-of-touch with their case facts.

The Plaintiff attorneys opened their case-in-chief on the theme presentism. Their intention was to get the jury to separate what we understand about cigarettes now from what little we knew about cigarettes up to a century ago, and view the Plaintiff’s case from the lens of the latter.

This theme was used in earlier cases against the Defendant that involved claims of fraudulent concealment and fraudulent misrepresentation as it relates to the tobacco industry’s dark history of deception; however, this particular case did not assert those claims. Additionally, while the presentism theme could have supported a case that directly involved a smoker immersed in US cigarette culture from the 1900s-1960s, it proved irrelevant in the applicable time period of 1975-2015.

The Plaintiff attorneys depended on strategies from other cases against the Defendant and did not update or adjust their theme to the facts of and claims in this individual case. Counsel for Plaintiff relied on a theme that traveled too far back in time and resonated much less when facing a sole design defect claim where the consumer smoked during a time period that had already adapted to modern values surrounding cigarette smoking. The presentism theme was ultimately out-of-touch with the facts of the case, making it obscure, confusing, and inefficient.

2. Additionally, Attorneys for Plaintiff used the theme “choices” — while largely ignoring the choices of Their OWN CLIENT.

The Plaintiff attorneys also relied on a theme of choices, attempting to focus on the choices the Defendant made surrounding its product design, marketing, etc. However, this very general, unspecific theme was a poor choice because it naturally pointed right back at Tomasa’s choices, undermining its selection. It appeared as though the Plaintiff attorneys who selected the theme did not consider the culmination of Tomasa’s choices that objectively contributed to the issue.

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3. Tomasa’s husband and daughter, along with the plaintiff attorneys themselves, were tone-deaf when it came to acknowledging personal responsibility, diluting their credibility with the jury.

Related to the topic of choices, when it came time to discuss Tomasa’s proportionate responsibility in the case, Tomasa’s husband was asked directly on cross:

“Now Mr. Santana, you don’t believe or think your wife bears any responsibility in this case, correct?“

He responded:

“Correct.”

Tomasa’s daughter was asked the same and she resolutely stated that her mom bears no responsibility for the claims at issue or her injury, and that Philip Morris bears “100%” responsibility.

Further, when discussing comparative fault during closing argument, one of Plaintiff’s attorneys firmly, and perhaps condescendingly, stated:

“We’re not shying away from the fact that you can say yes. She picked up that first cigarette. The records say that she was at least a pack a day smoker by the age of 19…she didn’t pick up that first cigarette and start smoking a pack a day at 19…at 19, if you’re smoking a pack a day, five percent seems fair.”

This was stunning because it initially appeared that counsel for Plaintiff only found Tomasa responsible for the very first cigarette she smoked. When you further consider counsel’s remarks to include Tomasa being responsible for whatever amounts she smoked up until she was a pack a day smoker at 19, this is still an incredible lack of accountability, even if the jury determined the cigarettes at issue were defectively designed (which they did not). It appeared irresponsible for the Plaintiff attorneys to glaringly omit 40 years of personal choice from the equation. While addiction is obviously very difficult for anyone to overcome, being addicted in and of itself is not a total shield from a reasonable factoring in of personal responsibility.

The remarks of the spouse, daughter, and Plaintiff attorneys collectively reeked of entitlement and were a distasteful misallocation of comparative fault. Although it was understandable and expected of the Plaintiff attorneys to attempt to keep the majority of fault on the Defendant, only granting 5% in a case with such facts–including the fact that the jury heard Tomasa never once attempted quitting in her 40+ years of heavy smoking–was cringingly tone-deaf and a poor judgment call. Simply upping an admission of Tomasa’s personal responsibility to the realm of 25% could have settled some of the frustrations associated with this blunder.

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4. the Plaintiff attorneys relied heavily on exposing secret internal documents that did not apply to Tomasa’s claims, potentially making the jury feel mislead.

Plaintiff’s first witness, a history expert, testified for several hours across multiple days about secret Philip Morris documents from the 1920s to late 1960s that ended up being nominally relevant to Plaintiff’s claim and the given facts. The documents were very hot, very concerning, and clearly depicted bad intentions on part of the Defendant and tobacco industry at large. However, as disgusting as they were, the majority of them did not apply to the claims or time period being discussed. The Defense attorney immediately took advantage of this on cross, and was able to get the jury to disregard most of the expert’s testimony within minutes by showing that majority of the inflammatory material he discussed was irrelevant to Tomasa’s case. Surely it made the jury ask themselves, why in the world did we just spend several days on irrelevant testimony?

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5. Counsel for Plaintiff’s addiction expert’s credibility was weakened in more ways than one.

The addiction expert’s credibility was first called into question when, immediately upon the commencement of cross, the Defense attorney pointed out that the Plaintiff attorneys included the witness on Plaintiff’s expert designations and indicated the witness would opine that Tomasa was addicted to the cigarettes at issue, before formally engaging the expert! While this is more so a drop of the ball on part of the Plaintiff attorneys, it still may have made the expert seem biased and negatively impacted how the jury received her.

Secondly, a point of emphasis in the addiction expert’s testimony surrounded the distinction between choice vs addiction. She made it clear that though possible, addiction is extremely difficult to make the choice to get out of. However, this point was weakened on cross when the jury was shown that this same expert was on the advisory board of a behavioral modification company that specializes in helping people self-hypnotize their way out of a lot of things, including quitting smoking. This company was shown to make representations on its website that were not compatible with the expert’s testimony, and in fact supported some of the Defense’s arguments, including saying things like it’s easy to “turn off cravings” and feelings of addiction are merely a “sensation.” While she tried to wiggle her way out of these representations and distant herself from the company, her credibility was certainly called into question and she may have left a bad taste in the jury’s mouth.

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6. The plaintiff’s fact/character witnesses contradicted their prior testimony multiple times, making them appear coached and unbelievable.

Tomasa’s husband and daughter appear on this list once again. This time because they refused to accept, or convincingly explain, prior inconsistent testimony they made surrounding Tomasa’s addiction and what they believed she knew of the dangers of smoking. When deposed just a few months prior to trial, this year, they each definitively stated that they believed Tomasa had known for years that cigarettes caused cancer, but she did not think it would happen to her. However, in trial, neither of them wanted to concede to this. They were impeached with prior inconsistent testimony multiple times and attempted to justify their 180-degree shift of opinion in unbelievable ways. The process of impeachment made it look all the worse because Defense counsel kept hammering in the inconsistency as each witness kept attempting to defend they did not mean that, they meant something else by it, they were confused by the question, etc. The fact that they both were impeached on this issue and both had previously stated in a less-pressured situation (and perhaps before Plaintiff had narrowed down its claims and theory) that Tomasa knew smoking could cause cancer made it appear that they had been coached or incentivized to simply deny what they had previously said.

These same two witnesses, Tomasa’s husband and daughter, had already insulted the jury’s intelligence by 1) attempting to convince them that Tomasa never grasped the concept of the dangers of smoking cigarettes, and 2) failing to admit, even if minimally, Tomasa’s personal responsibility in the equation. Now they were caught contradicting themselves, making this yet another issue that further diluted Plaintiff’s credibility with the jury. Despite these witnesses’ success in eliciting truly emotionally powerful testimony about Tomasa’s character that was helpful for the jury to get a better picture of Tomasa as a person overall, these blunders were difficult to ignore.

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7. the plaintiff attorneys spent considerable time critiquing aspects of the cigarettes at issue that were not a part of their alleged defects, diluting their trustworthiness.

Infused throughout a lot of Plaintiff’s witness testimony and Plaintiff counsel’s argumentation was criticisms surrounding Philip Morris’s use of cigarette filters, basic additives (such as menthol, ammonia, sugars), and diammonium phosphate in their design of the cigarette at issue. Though these attributes were extensively discussed, they were not proven to add toxicity to the already toxic cigarette experience; additionally, they were not specifically alleged by Plaintiff as being one of the reasons the Virginia Slims cigarettes were defectively designed.

The jury, via the presiding judge, was allowed to ask questions of each witness following their testimony and they asked the Philip Morris cigarette designer pointed questions about each of these attributes, making it clear that they wanted to clarify why these characteristics were being repeatedly discussed by Plaintiff’s counsel. The answers to the jury’s questions indicated 1) the filters serve a purpose by at least nominally decreasing the amount of tar being inhaled, 2) the cigarettes with additives were indistinguishable from cigarettes without additives as both are carcinogenic, and 3) the diammonium phosphate was not problematic in that it did not release carcinogens in its combustion process. Testimony also revealed that all of these attributes were accepted by the public health community as cigarette ingredients and included in most cigarettes on the market. After getting the answers to their questions, surely some members of the jury wondered, why did Plaintiff’s attorneys spend so much time critiquing aspects of the cigarettes at issue that were not related to their design defect claim? Again, this may have made the jury feel like the Plaintiff attorneys were trying to mislead them, diluting their trustworthiness.

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8. counsel for PLaintiff had no argument against the reality that all cigarettes are dangerous and could cause cancer, Including Plaintiff’s proposed alternative designs.

Plaintiff’s own oncologist was a straightforward physician who made it clear that all cigarettes are dangerous and could cause cancer. The primary purpose of the oncologist’s testimony was to establish, to a reasonable degree of medical certainty, that Tomasa’s daily cigarette smoking is what caused, or substantially caused, her cancer. This testimony was understandably needed by Plaintiff in order to establish medical cause. However, Plaintiff did not have an answer for pointed questions on cross that essentially got this expert to shoot down all cigarettes in their entirety, including Plaintiff’s own alternative designs. The reality that all cigarettes are dangerous and could cause cancer was not helpful to Plaintiff being able to show the design defect in the particular cigarettes at issue, so it was essential for Plaintiff’s attorneys to have a solid rebuttal against this. While no witness can do everything for your case as they all play their respective part, this expert’s emphatic, very matter-of-fact responses relating to the dangers of cigarettes and safer alternative designs were surely felt by the jury, and these realities were ultimately left ill-addressed by the Plaintiff attorneys.

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1. The author of this article, Sha’Huni Norman, provides unsolicited pieces of advice to counsel where inspired. Tips to counsel for Plaintiff appear associated with this symbol 𝛑 and tips to counsel for Defense appear associated with this symbol 𝝙. These are merely her two cents; some say advice is worth what you pay for it.  ↩︎