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Elizabeth P. "Liza" Kessler to Become Partner-in-Charge of Jones Day Columbus Office 

The international law firm Jones Day announced today that Elizabeth P. "Liza" Kessler, will take over as Partner-in-Charge (PIC) of the Firm's Columbus office effective January 1, 2009. Ms. Kessler becomes the fifth woman PIC to currently lead one of Jones Day's 14 US offices. She succeeds Fordham E. Huffman . . .

Ms. Kessler practices primarily in the area of product liability. Her significant litigation experiences include representation of R.J. Reynolds Tobacco Company in complex product liability cases around the United States. Her trial representation includes a Sacramento jury trial entitled Lucier v. Philip Morris, et al. (2003), which resulted in a complete defense verdict on all claims after a four-month trial. In the years preceding the Lucier trial, plaintiffs had won six straight jury verdicts in tobacco product liability trials on the West Coast, each with punitive damages ranging from tens of millions to billions of dollars. Ms. Kessler was trial counsel for R.J. Reynolds in Rose v. American Tobacco Co. (2005), the first smoking and health case to be tried in Manhattan. After a six-week trial, the jury returned a verdict in favor of R.J. Reynolds.

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• Tobacco industry's pinch hitter 

Now on Feb. 3 of this year, Day One of his closing argument, Big Tobacco's big defender was sure he'd delivered.

Medical experts had testified that no one had ever found a cancerous cell in plaintiff Laurence Lucier's lungs; the cancer must have started elsewhere. Witnesses had affirmed there were federal warnings on cigarettes for 37 years. The plaintiff's brother had testified that Lucier was well aware of the dangers. Grossman argued that Lucier admitted to knowing the risks during lengthy cross-examination.

Open and shut case? Not in California. Never involving cigarettes.

His eventual victory - unanimous verdicts on four of Lucier's claims, votes of 11-1 on the remaining four - spared client R.J. Reynolds Tobacco Co. $3.6 million and made headlines nationwide.

It also affirmed Grossman's status. His work for Reynolds, co-defendant with Philip Morris USA Inc. in the Lucier case, landed him on a list of the nation's top 10 trial lawyers in the June issue of National Law Journal, which heralded Grossman for reversing a trend of million-dollar West Coast jury awards.

Grossman, partner with the Cleveland office of Jones Day, has defended Reynolds Tobacco more than 15 years. For the past eight, he's been the national coordinating counsel and lead trial counsel for the nation's second-largest cigarette maker.

Grossman, 53, doesn't have the look of a stereotypical tobacco lawyer.

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• THEODORE M. GROSSMAN: Know your themes, and build on them 

Theodore Grossman turned out to be the man. Representing R.J. Reynolds Tobacco Co., co-defendant with Philip Morris, Grossman acted as lead attorney for their coordinated defense—perhaps because, without his help, Michael J. Piuze had socked Philip Morris with two multibillion-dollar verdicts in California the last two years. [See story, Page S13.]

On Feb. 6, following a three-month trial, the jury handed the companies a resounding victory. Demonstrating his own preference for basketball, and noting that the jury deliberated only 2 1/2 days, the 53-year-old lawyer called it "a slam dunk."

This was his third full tobacco trial and third win, but the first in California. It was important, he said, because the plaintiff used the "A" list of anti-tobacco company witnesses; the market (and many analysts) had assumed another loss; and, yes, because it was California. . .

"The weakest part of the case was the plaintiff himself," a juror told The Sacramento Bee. Citing the computer episode, she added: "To me, that was very damaging. He was hiding something."

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• LETTER: LUCIER: Smoking suit award not out of line 

Your editorial was about the recent tobacco company lawsuit in Sacramento that came to a close earlier this month. Laurence Lucier, my brother and the plaintiff, began smoking in 1958-59 at the age of 8 or 9. Three witnesses testified to this during the trial. . .

We now know that the tobacco companies knew for years that their products are deadly, but they withheld this information. They also manipulated the amount of nicotine in cigarettes to keep people hooked and, through the years, targeted younger and younger audiences with their advertising.

You referred to the "outrageous $28 billion award imposed by a Los Angeles Superior Court jury" against the tobacco companies a few months ago. Perhaps $28 billion won't seem that outrageous when you consider that the tobacco industry spends $16 billion a year on advertising alone. . .

My brother did not "choose" to smoke on his own, unless you think that an 8-year-old can make an informed decision at a time when no one else was informed of the consequences of smoking either.

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• Tobacco firms found not liable 

"There's no doubt that Mr. Lucier did have cancer ... and our hearts went out to him," jury foreman Linda Taylor said after the verdict. "But Mr. Lucier chose to smoke on his own -- not because of an ad or any commercial influence."

One juror, Edward Hernandez, said "12 people agreed that smoking was a major cause of Mr. Lucier's cancer. Unfortunately, the argument made by his attorney -- that Mr. Lucier had lung cancer -- wasn't proven and that was essential to the case."

A biopsy taken from Lucier's upper body -- but not the lungs -- showed that Lucier had a rare type of cancer in his lymph glands, Hernandez said.

"But that cancer, which later spread to his brain, is not easily attributable to smoking," Hernandez added.

Peggy Beasley, another juror, questioned Lucier's credibility.

"The weakest part of the case was the plaintiff himself," Beasley said. "He denied knowing the dangers of smoking -- but none of us believed his testimony. He was too intelligent a man not to have heard about the dangers of cigarettes." . .

During his smoking life, one of his sisters repeatedly warned Lucier to quit, Beasley said.

Her warnings evolved into e-mails, which Lucier destroyed before trial, Beasley said.

After deleting them, Lucier was served with an order to surrender his computer to the defense, she said.

"He produced a different computer," Beasley said. "To me, that was very damaging. He was hiding something."

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• Tobacco Industry Wins California Jury Verdict 

The companies' victory is a sign that the industry may have found a strategy to help it at least limit the damage from litigation on the West Coast, where juries have repeatedly assessed enormous awards against them. . .

The Luciers' case was originally filed in San Francisco, a liberal city that has become known as a hostile jurisdiction for cigarette makers, but lawyers for Reynolds and Philip Morris had it moved to Sacramento. After this verdict, the tobacco companies are likely to redouble their efforts to move cases out of San Francisco and Los Angeles to parts of the state where they believe jurors will be more receptive to their arguments.

The companies may also try to move cases from state court to federal court.

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Tobacco firms win smoking damages case / Verdict is first loss by plaintiffs in California cigarette suits 

Despite the loss, Lucier's attorneys said they drew some solace from the fact that jurors informed them after the verdict that they believed the tobacco companies had hid the health hazards of cigarettes from the public.

But the lawyers said the jurors did not believe that Lucier had cancer based on the testimony of witnesses for the tobacco companies.

"It is unfortunate that misleading witnesses brought in by the tobacco companies would countermand absolute fact of a victim's illness," said attorneys Mary Alexander of San Francisco and Gary Paul of Santa Monica in a statement.

They said they would probably appeal the verdict.

Edward Sweda, senior attorney for the Tobacco Products Liability Project at Northeastern University in Boston, said the anti-industry group never expected to win all the cases.

Putting the best spin on the loss, he stressed that the recent series of plaintiffs' victories "make it extremely unlikely that the companies will be able to avoid being held accountable for their wrongdoing."

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• State Jury Clears Cigarette Makers 

By votes of 11 to 1 and 12 to 0, the Sacramento jury rejected claims by plaintiffs Laurence and Laurie Lucier, who had accused the companies of negligence, fraud and manufacturing defective products.

According to defense and plaintiffs' lawyers, jurors were not convinced that smoking caused Laurence Lucier's illness. The companies could not have been held liable without a finding that Lucier's cancer was smoking-related. . .

Plaintiffs' lawyer Gary Paul said he was disappointed for his clients but was pleased by jury statements that the companies had been guilty of misconduct. They "believed everything we said about hiding the truth, concealment and deception," he said, but weren't convinced that smoking caused Lucier's cancer. . .

The firms disputed testimony that the cancer originated in Lucier's lung, arguing instead that the tumor formed in the chest but outside the lung and was a rare, nonsmoking type. . .

Bonnie Herzog, a tobacco analyst with Salomon Smith Barney, called Friday's result "positive news," proving that the industry "can convince at least one jury that it is not responsible" for a smoker's illness. However, the "track record for the industry is one win out of seven cases on the West Coast," she said.

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• Following Tobacco Verdict Attorneys Mary Alexander, Gary Paul Assert 'Unfortunate That Misleading Witnesses Would Countermand Absolute Fact of a Victim's Illness' 

consumer attorneys Mary Alexander of San Francisco and Gary Paul of Santa Monica spoke to jurors. Alexander and Paul stated, "We are pleased the jury told us RJR and Phillips lied, deceived, and concealed evidence of tobacco's harm from the American people. The jurors told us they also agreed that the tobacco companies defrauded and targeted children."

"However, the jurors told us they thought Mr. Lucier did not have cancer because of tobacco companies' witnesses. It is unfortunate that misleading witnesses brought in by the tobacco companies would countermand absolute fact of a victim's illness, and we are strongly considering appeal," Alexander and Paul stated.

Alexander and Paul added, "Following the verdict, the tobacco companies continue to deceive, claiming on their website that jurors made the decision that the plaintiff was negligent. In fact, RJR and Phillips had waived the claim of negligence. In addition, a number jurors told us that if this were a class action case, they would have had no problem finding for the plaintiff."

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We are pleased the jury told us RJR and Phillips lied, deceived, and concealed evidence of tobacco's harm from the American people. The jurors told us they also agreed that the tobacco companies defrauded and targeted children. However, the jurors told us they thought Mr. Lucier did not have cancer because of tobacco companies' witnesses. It is unfortunate that misleading witnesses brought in by the tobacco companies would countermand absolute fact of a victim's illness, and we are strongly considering appeal . . . Following the verdict, the tobacco companies continue to deceive, claiming on their website that jurors made the decision that the plaintiff was negligent.
Press release from Luicier attorneys Mary Alexander and Gary Paul.

Tobacco Firms Win Suits In Florida and California 

R.J. Reynolds Tobacco Holdings Inc. and Altria Group Inc.'s Philip Morris USA unit won cases in California and Florida as juries ruled that the two big tobacco companies weren't responsible for two individuals' illnesses. . .

In closing arguments, a Philip Morris lawyer argued that awarding a multimillion-dollar lawsuit to Mr. Lucier would amount to an assault on freedom of choice.

The jury ruled 11-1 in favor of the industry. The jury found that Mr. Lucier had known the risks of smoking, R.J. Reynolds said. . .

The verdict in Mr. Lucier's case is "a major win" for the industry, said R.J. Reynolds spokeswoman Ellen Matthews. . .

According to Merrill Lynch & Co. tobacco-industry analyst Martin Feldman, it is difficult to know whether the case was won by the industry because of a tough defense brought by the industry or due to a weak case presented by the plaintiff's attorneys. The case was the first claim by the plaintiff attorney team to come to trial, he said. The plaintiff's lawyers are Mary Alexander and Gary Paul.

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Lucier v. Philip Morris, inc., et al. Verdict Backgrounder Feb. 7 2003 

It is difficult to determine why this particular jury trial led to a defense verdict. The previous six West Coast jury trials against tobacco industry defendants had led to plaintiffs' verdicts with punitive damage.  But it is clear that different juries will see things differently depending on how the case is presented, what evidence is allowed, and the sort of testimony permitted by the trial court.  There had been some delays in getting this trial to the jury as, presumably, the plaintiff and defendants contested what statements could be made during closing arguments and what instructions would be given to the jurors.  A gag order issued by the court prevented the attorneys from revealing the cause of the delays.

Edward Sweda, Senior Attorney for the Tobacco Products Liability Project at Northeastern University noted: "While we are disappointed with today's verdict, We must remember that the goal of tobacco litigation is to improve the public health by holding the companies accountable for their corporate wrongdoing.  Several major verdicts, both in California and in other states, remain on track to do exactly that.  We have never claimed that all tobacco cases generally or all tobacco cases in California will result in victories for plaintiffs.  There are, however, increasing numbers of plaintiff victories in tobacco cases to make it extremely unlikely that the companies will be able to avoid being held accountable for their wrongdoing."

Mark Gottlieb, also an attorney for the Tobacco Products Liability Project observed that, "even though this verdict is a setback, it is truly remarkable that there are now five other tobacco trials in progress today.  In fact, the number of cases going to trial against the tobacco companies has increased to the point where it is no simple matter to keep track of each of these cases.  If this trend continues, and there is every indication that it will, there will soon be dozens of trials going on at any one time.  If plaintiffs continue winning about 50% of these trial verdicts, the U.S. cigarette industry will find itself in an extremely tenuous position."

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• Tobacco Companies Not Responsible for Smoker's Cancer (Update5) 

Philip Morris USA and R.J. Reynolds Tobacco Co., the two largest U.S. cigarette makers, aren't responsible for causing the cancer of a California man who began smoking at the age of 8, a jury said. . .

Gary Paul, Lucier's attorney, said his client has an extremely rare type of cancer. The jury was ``unable to make the connection between the cancer and smoking. I'm disappointed they weren't able to find that connection.''

He said he is considering whether to appeal. Lucier was ``devastated'' by the verdict, Paul said.

``Mr. Lucier has a serious disease and deserves our sympathy,'' said William Ohlemeyer, Philip Morris USA vice president and associate general counsel. ``This jury reached a correct verdict, however, based on the law and the facts presented in this case.''

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Big day for Big Tobacco 

Big Tobacco finally snapped its Golden State losing streak when a jury stubbed out the hopes of a smoker who was seeking damages from two cigarette giants.

At almost the same time, it scored another win in Florida when a Miami panel rejected a secondhand smoke suit filed by a former flight attendant.

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Tobacco industry wins cancer cases 

The tobacco industry won two significant legal victories on Friday when a California jury ruled that Philip Morris USA, a unit of Altria, and RJ Reynolds were not responsible for causing a man's cancer.

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Tobacco Companies Win 2 Court Fights 

Tobacco companies scored victories Friday in separate court cases brought by a longtime smoker who said smoking left him with cancer and by a flight attendant who said secondhand smoke in airplanes made his lung disease worse. . .

R.J. Reynolds attorney R. Dal Burton called the verdict "particularly satisfying" because his company believes a court order governing all of the attendants' claims handicaps the tobacco industry.

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