Jones Day’s Kevin Boyce convinced a Fort Launderdale jury that although Leonard Budnick died of lung cancer caused by smoking, an addiction to smoking was not the legal cause of Mr. Budnick’s death; instead, Mr. Budnick smoked because he wanted to.

CVN webcast the Budnick Engle-progeny tobacco trial live.

In closing the liability phase of Budnick v. R.J. Reynolds, plaintiff attorney Stephen Hammer reminded the jury that the defense agreed that Lenny Budnick died from lung cancer caused by cigarettes. The only question in the case, said Mr. Hammer, was whether Mr. Budnick was addicted to cigarettes.

“Any smoker can quit smoking cigarettes. That much we know. Any smoker can quit…We all know in our own lives people who have been addicted to any such substance…whether it’s drugs, or alcohol, or cigarettes…R.J. Reyolds’ position is that Lenny Budnick was not addicted because with the right motivation he could have quit…but any smoker can quit…Now I want you to think about this logically. Since any smoker can quit, and it’s RJR’s position that being able to quit means you’re not addicted, well that means their position is that no smoker is ever addicted, if you follow that logic. But we know that’s not the case.”

For the defense, Jones Day’s Kevin Boyce told the jurors in closing, “Despite how many times Mr. Hammer said it, there’s not just one issue in this trial. There’s two. And I don’t know why he skips over the second one all the time. I think it’s his eagerness to get to phase 2…But what you’re really going to be asked…is was Mr. Budnick addicted to cigarettes containing nicotine, and then the second part is the one Mr. Hammer didn’t talk about: It’s if so, was such addiction a legal cause of his death. It’s two questions…Did Mr. Budnick smoke because he wanted to, or did he smoke because he had to?..It is our position that Mr. Budnick smoked because he wanted to.”

CVN is webcasting the Budnick Tobacco Trial live. The jury is in its second day of deliberation.

Opening statements began today in the Engle-progeny tobacco trial Budnick v. R.J. Reynolds, webcast live by CVN.

The Schlesinger Law Firm’s Steven Hammer told the jury that Leonard Budnick was a diabetic who smoked a pack a day of Camels for 30 years. Even after Lenny Budnick was diagnosed with lung cancer and emphysema, and required oxygen to breathe, he still smoked. Mr. Hammer recited a long list of techniques Mr. Budnick had tried to quit smoking, but none were successful. Mr. Budnick died in 1996 at age 52.

If the case was about choice, said Mr. Hammer, Mr. Budnick did not choose to die as a young man when he was barely 50 years old. “More likely than not he was addicted, and more likely than not that addiction led to his death from lung cancer.”

Mr. Hammer predicted that the defense expert on addiction, Dr. Spodak, would testify that Mr. Budnick was not addicted. According to Mr. Hammer, Dr. Spodak had testified in hundreds of cases, and had not once concluded that a person was addicted. Even if Dr. Spodak was told that a person had smoked six packs per day for 30 years, or continued smoking through a hole in their throat due to a tracheotomy, Mr. Hammer said, Dr. Spodak would still not conclude that the person was addicted.

For the defense, Jones Day’s Kevin Boyce told the jury, “Cigarettes don’t jump out of a pack and light themselves. Every cigarette from every pack is a choice…every puff is a choice…There is a person in between smoking and disease. A you. A me. A person with free will…that’s the cause of his smoking, the cause of his disease.”

Mr. Boyce told the jury that Mr. Budnick was a musician, the lead singer in a band. “It should be no surprise that Mr. Budnick smoked. Many musicians do…This is not someone who was tormented by his addiction. He liked smoking. He liked everything about it…One quit attempt in eleven thousand days — that’s not an addiction.”

The question, said Mr. Boyce, was whether the jury would excuse Mr. Budnick, and reward Mr. Budnick’s son Jason with money, for the choices that Mr. Budnick made for more than 30 years. In this country, said Mr. Boyce, you are allowed to smoke. “Not everybody smokes because they are unable to stop, and Mr. Budnick is a prime example of this.”

CVN is webcasting the Budnick tobacco trial live.