Gerson & Schwartz’ Philip Gerson told the jury in Frazier v. Philip Morris that Phyllis Frazier started smoking at age 15, around 1960, and smoked a pack a day for 30 years, until she was diagnosed with emphysema or chronic obstructive pulmonary disease (COPD) in 1991. She quit smoking eight months later with the assistance of a nicotine patch. Ms. Frazier underwent a successful lung transplant in 2003, but her body subsequently rejected the new lungs, and at the time of trial she still suffered from COPD.
According to Mr. Gerson, Ms. Frazier smoked cigarette brands that had the lowest tar, were specially filtered, and were named “ultra-light.” Ms. Frazier didn’t know that the filters were ineffective,” said Mr. Gerson. She didn’t know that she could injure her children by smoking in their presence. “But they knew. They always knew…And that’s what the basis is going to be when I ask you to punish them for concealing what they knew.”
For Philip Morris, Shook Hardy Bacon’s Will Geraghty told the jury, “Phyllis Frazier enjoyed smoking cigarettes,” and the benefits she obtained, like copying with stress, outweighed the risks. According to Mr. Geraghty, Ms. Frazier wasn’t paying any attention to anything R.J. Reynolds or Philip Morris were saying, because she was living her own life and making her own decisions.
Moreover, said Mr. Geraghty, Ms. Frazier made an informed decision to smoke. She always knew the risks — she just didn’t think it was going to happen to her. Mr. Geraghty predicted that the evidence would show that Ms. Frazier never heard or saw any statement by R.J. Reynolds or Philip Morris about the health risks of smoking. Finally, said Mr. Geraghty, she could have quit smoking any time, as she eventually did.
For R.J. Reynolds, Jone Day’s Geoff Beach told the jury that cigarettes were a legal product, even though they contain tobacco, which in turn contains nicotine. And even though nicotine in cigarettes is addictive, there was nothing in R.J. Reynolds’ cigarettes that prevented Ms. Frazier from quitting when she wanted to.
Although Mr. Gerson had pointed to advertising campaigns featuring celebrities and athletes, Mr. Beach noted that those advertisements stopped in 1964, very shortly after Ms. Frazier began smoking. And, said Mr. Beach, the sale of cigarettes was illegal in many states at the start of the 20th century. “People have understood that cigarettes can cause problems for a long time.”