Arnold & Porter teamed up with Jones Day to win the Engle-progeny tobacco trial Claudette Campbell v. Philip Morris.
Claudette Campbell contracted bladder cancer, which was subsequently cured. Plaintiff attorney Howard Acosta told the jury that Ms. Campbell started smoking because her friends started smoking. “Well who made it cool to smoke?” asked Mr. Acosta. “That’s how advertising works. And they spent a ton of money on it, and you don’t spend a ton of money on something that doesn’t work.”
In response to the defense argument that the dangers of smoking were common knowledge throughout history, despite the tobacco company’s failure to acknowledge them, Mr. Acosta said, “The cigarette companies are telling you people should believe everyone else, but they shouldn’t believe us, the maker of the product…There’s something wrong with that.”
Arnold and Porter’s Jonathan Stern, on behalf of Philip Morris, told the jury that for Ms. Campbell to be declared an Engle class member the jury would have to find that Ms. Campbell’s bladder cancer was caused by smoking, that she was addicted to smoking, and that the addiction caused her bladder cancer.
Mr. Stern reminded the jury that the plaintiff’s own witness, Dr. Acosta, Ms. Campbell’s treating urologist, stated that he did not know which risk factor caused Ms. Campbell’s bladder cancer. Ms. Campbell had multiple risk factors, including age, race, and smoking.
Jones Day’s Dennis Murphy, on behalf of R.J. Reynolds, emphasized that whether Ms. Campbell was addicted depended on whether she controlled the drug, or the drug controlled her. The evidence, said Mr. Murphy, was that Ms. Campbell controlled her smoking because she was able to not smoke under a variety of circumstances, and to quit for long periods.
Mr. Murphy also challenged the testimony of plaintiff expert Louis Kyriakoudes, characterizing him as a “shoddy researcher” and suggesting that Dr. Kyriakoudes was “trying to hide the ball,” and could not be trusted, because the bladder cancer statistics he provided from the surgeon general’s report did not relate to women, whose likelihood of contracting bladder cancer from smoking was lower.
The verdict form asked the all-male jury to determine whether Ms. Campbell was a member of the Engle class. The jury’s response was “No.”