After apparently cracking the Engle Code, as we noted last week, four tobacco companies teamed up for another defense verdict today in Arthur Rohr v. R.J. Reynolds. The Rohr verdict represents Tobacco’s sixth consecutive win.

During Phase 1 of the trial, plaintiff attorney Bruce Denson convinced the jury that an addiction to smoking was the legal cause of Mr. Rohr’s lung cancer, and during Phase 2 Mr. Denson convinced the jury that defective cigarettes were the legal cause of Mr. Rohr’s death.

However, the jury assigned 100% of the fault to Mr. Rohr and awarded no damages against defendants R.J. Reynolds, Philip Morris, Lorillard, or Liggett.

Will the winning streak continue? Another Engle tobacco jury is currently deliberating, in Phase 1 of Koballa v. R.J. Reynolds.

CVN webcast Rohr v. R.J. Reynolds live.

Closing arguments in Rohr v. R.J. Reynolds phase 2 were completed today in Fort Lauderdale, Florida.

Jones Day’s Stephanie Parker told the jury that Arthur Rohr lived his life in a risky way, and that he accepted responsibility for making risky choices throughout his life, for example by using guns and signing a Do Not Resuscitate (DNR) order.

“He was a hundred percent in control of his decisions,” said Ms. Parker, “and we ask you to find him 100% responsible for the decisions he made.”

Dan Molony, on behalf of Lorillard, told the jury that there was nothing that connected the dots between the Arthur Rohr’s decision to smoke and the Lorillard tobacco company’s actions. Further, the evidence showed that Mr. Rohr smoked Lorillard brands, Old Gold and Kent, relatively infrequently. Finally, Mr. Rohr blamed the cigarettes, not the cigarette companies, for his smoking-related injuries.

Liggett’s Michael Rosenstein, of Kasowitz Benson, told the jury that Arthur Rohr’s son told them that Mr. Rohr had smoked Chesterfield cigarettes at some point in the 1950′s, but the amount would require speculation, which is not permitted. And in any case, Mr. Rohr would still have gotten lung cancer from the other 14 brands he smoked.  Mr. Rosenstein also highlighted in closing, as he did in opening, the ways in which Liggett is different from the other cigarette manufacturers — for example, in not signing the Frank Statement.

Bowman & Brooke’s Sandra Ezell told the jury that even if they determined that any tobacco company was liable, which she thought they should not, then Philip Morris’s liability would be minimal, since his smoking of Philip Morris’s brands was unusual , Mr. Rohr smoked the Merit brand only after he was age 60 — and by then, warnings were included on the package.

In rebuttal, plaintiff attorney Bruce Denson told the jury that “the companies did do something wrong. It’s the design of the product and the lies they told about it….Ms. Parker said nothing they did to the cigarette made it more addictive, but that’s not true. They made it inhalable…a cigarette is designed to addict…the cigarette companies love to compare their product to food items, like orange juice or coffee. You can even see it in some of their advertising [Mr. Denson showed the attorney a variety of advertisements]…trying to convince consumers that this is just a part of ordinary life, like any other food. But we know it’s not….They had the technology [to further reduce the nicotine] but then they stopped…I don’t care if you call it ‘quality control,’ it’s ‘addiction control…”

Mr. Denson told the jury that allocating 100% to Mr. Rohr was inappropriate, because his ability to control his behavior was impaired, even if it wasn’t eliminated. Mr. Denson compared the arguments of the defense counsel during the trial to the statements that the cigarette companies had made throughout the years, concluding that the tobacco companies had been “on message from the 1950′s right into this courtroom.”

CVN webcast Rohr v. R.J. Reynolds live.

Phase 1 of the Rohr v. R.J. Reynolds Engle tobacco trial considered just a single question: “Was Arthur Rohr addicted to cigarettes containing nicotine, and, if so, was such addiction a legal cause of his death?”

Plaintiff attorney Bruce Denson told the jury that the medical records in the case showed that this was a bronchogenic lung cancer death, not a death from malignant melanoma. According to Mr. Denson, Mr. Rohr “smoked a pack a day every day. Twenty cigarettes every day. If he just did that for 50 years that would be 364,000 cigarettes. They want to tell you that addiction isn’t part of this? That he did it every day, just out of choice, not addiction to nicotine — that somehow Mr. Rohr was different than other people, he’s not affected by nicotine?”

The jury determined that nicotine addiction was the legal cause of Mr. Rohr’s death.

“Members of the jury: Welcome to Phase 2,” said plaintiff attorney John “Hutch” Pinder in his opening statement. “In Phase 1, you learned about the addiction, disease, and death of Arthur Rohr. This Phase, Phase 2, is going to be about the defendants. You’re going to learn their role in the addiction, disease, and death or Arthur Rohr.“

Jones Day’s Stephanie Parker, for R.J. Reynolds, told the jury, “This case is not a cause, it’s not a crusade, it’s not a chance to vote on how you feel about smoking. And that’s because our society has already made those decisions…Our society knows that cigarettes cause lung cancer. But nevertheless, our society has decided that cigarettes should be available, should be a choice for adults to make.”

Shook Hardy Bacon’s Dan Molony, on behalf of Lorillard, told the jury “the brand that Dr. Rohr smoked that was made by my client was a brand called ‘Kent.’ And me smoked it, according to his son’s testimony,” for approximately five years near the end of his smoking history. 

Representing Liggett, Kasowtiz Benson’s Michael Rosenstein told the jury, “There’s no doubt that Arthur Rohr was an intelligent and accomplished man who understood that cigarettes were an adult product that were dangerous and hard to quit,” however, he continued, “Not much of this case has anything to do with my client, Liggett. The evidence is going to show that Arthur Rohr smoked a minor amount of Liggett cigarettes…The evidence will also show that nothing Liggett ever did or said had any effect on Arthur Rohr.“

Bowman & Brooke’s Sandra Ezell, representing Philip Morris, told the jury that Philip Morris products played a very small role in Arthur Rohr’s smoking life. Moreover, she said, “In order to hold my client, Philip Morris, accountable, it is incumbent upon the plaintiff to draw a connection between Philip Morris and Dr. Rohr…it is not enough for them to point to a document, to point to an event, to point to something on TV, to point to anything that is done or participated in my Philip Morris…They have to point to those things, they have to point to Dr. Rohr, and they have to draw a line between those two…You have to be convinced not only that the line exists, but that it was sufficiently strong so that he acted on it, he relied on it.“ 

CVN continues to webcast the Rohr tobacco trial live.

Plaintiff attorney Bruce Denson told the jury in Rohr v. R.J. Reynolds that Arthur Rohr smoked a pack a day for 50 years, adding, “No one smokes for 50 years who isn’t to some degree addicted.”

All the records agreed, said Mr. Denson, that Mr. Rohr died of metastatic lung cancer, which is caused by smoking. Although Mr. Rohr had a small skin cancer, the medical records indicated that the skin cancer apparently had not spread.

Mr. Denson told the jury to expect evidence that Mr. Rohr smoked for nicotine, not for taste. For example, Mr. Rohr didn’t smoke any particular brand of cigarette — among other, he smoked Chesterfield, Merit, Kent, Lucky Strike, Pall Mall, Winston, and Tareyton, ingesting what Mr. Denson referred to as “a massive dose of carcinogens.”

Representing R.J. Reynolds, Jones Day’s Stephanie Parker told the jury that the plaintiff would not be able to prove their case, because “critical pieces of evidence are just not there.”

Mr. Rohr was not addicted, said Mr. Parker. He quit easily and quickly, cold turkey — without assistance — when he wanted to. 

Moreover, despite the medical records’ suggestion that Mr. Rohr died of lung cancer, there was no evidence to support that conclusion: no pathology report, no radiology, and no autopsy. Instead, there was evidence that Mr. Rohr had a two-centimeter malignant melanoma that was present in 1993, which was before cancer was found in Mr. Rohr’s body in 1994. Ms. Parker told the jury that skin cancers spread to the lungs more often than lung cancers spread to the skin. Moreover, Mr. Rohr’s 50 years of smoking might not have resulted in lung cancer, she said, because 90% of smokers do not contract lung cancer.

Shook Hardy Bacon’s Dan Molony, on behalf of Lorillard, told the jury that Mr. Rohr had a long and wonderful life before he eventually died just before his 86th birthday. He had been an golfer of extraordinary talent before his arm was amputated at age 31, who then Mr. Rohr re-learned how to do everything with one hand. According to Mr. Maloney, Mr. Rohr was a man of uncommon determination and capability.

Bowman & Brooke’s Sandra Ezell spoke on behalf of Philip Morris. According to Ms. Ezell, Mr. Rohr was in complete control of his actions, and indeed Mr. Rohr’s neighbor did not even know he smoked.

CVN is webcasting Rohr v. R.J. Reynolds live.