Jones Day and Shook Hardy Bacon teamed up for a hard-fought victory in Frazier v. Philip Morris. 

Phyllis Frazier was a pack-a-day smoker for 30 years who contracted emphysema in 1991, and, with the help of a nicotine patch, quit smoking 9 eight months later. Ms. Frazier eventually underwent a lung transplant, which was rejected, and she required oxygen when she testified at trial.

Plaintiff attorney Philip Gerson told the jury there was no doubt that Ms. Frazier was addicted to cigarettes and that her smoking caused the emphysema that resulted in her suffering.

The jury agreed with Mr. Gerson that Ms. Frazier was addicted to cigarettes, and that her addiction was the legal cause of her emphysema.

However, the jury also found that Ms. Frazier knew or should have known prior to May 5, 1990, that she had been injured and that there was a causal connection between her smoking and and the injury. Subscribers who wish to review Mr. Geraghty’s closing argument on this issue should watch the October 14, AM session — Mr. Geraghty’s comments begin at 02:55:43.

CVN webcast Frazier v. Philip Morris live.

“They knew that nearly all cigarette smokers are addicted,”
Philip Gerson, of Gerson & Schwartz, told the jury in Frazier v. Philip Morris closing arguments. Eighty to 90% of smokers are addicted, he said. “But they so stubbornly deny the fact that Phyllis was addicted that we had to spend so much of your time bringing in expert witnesses” to describe the biology and pharmacology of addiction, such as Dr. Neal Benowitz, who had written a hundreds of peer reviewed articles and book chapters on nicotine addiction.

“The testimony and records demonstrate beyond any question that she was addicted,” said Mr. Gerson, citing the testimony of the treating physician who tried repeatedly to help Ms. Frazier quit smoking. 

As to awarding damages, Mr. Gerson said to the jury, “If you follow the evidence, the amount of the damages is going to be very large…extraordinary,” including over $1M in past medical expenses, another $1M in future medical expenses, plus damages for lost wages, pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, loss of capacity for the enjoyment of life. Moreover, said Mr. Gerson, Ms. Frazier would have have lived another 20 years, but because of her illness probably would not live another ten. Mr. Gerson suggested that the total compensatory damages exceeded $25M.

Shook Hardy Bacon’s Will Geraghty pointed out that Ms. Frazier’s own testimony conceded that she could have stopped smoking in 1963 if she had tried hard enough and had the willpower. Instead, she only made “gestures” toward quitting smoking, until she quit for good.

Mr. Geraghty also challenged the conclusions that Mr. Gerson drew from Dr. Benowitz’s testimony. According to Mr. Geraghty, Dr. Benowitz testified that the effects of nicotine are temporary, and the power of nicotine was not like addictive drugs, but was instead “a little more intense than caffeine.” Moreover, Dr. Benowitz never met Ms. Frazier, and knew nothing of her particular behaviors.

Mr. Geraghty recounted Ms. Frazier’s own testimony that she knew that cigarette smoking was dangerous, and she “probably just didn’t think it would happen to me.”  She was not truly motivated to quit smoking, said Mr. Geraghty.

CVN is webcasting Phyllis Frazier v. Philip Morris live.

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.”

Watch CVN’s live webcast of Phyllis Frazier v. Philip Morris.