Tobacco Case

The Estate of Jesse D. Williams v. Philip Morris Incorporated

Multnomah County (Oregon) Circuit Court Case No. 9705-03957

Case Summary
The Case
Public Interest Significance
The Defendant's Conduct

Case Summary

Jesse Williams was a 67-year-old African-American retired school custodian who died of lung cancer in 1997 after smoking Marlboro cigarettes for 47 years. A simple and devoted family man, Jesse raised his six children in inner city Portland and was a beloved husband, father, and grandfather. Philip Morris Incorporated is the domestic tobacco subsidiary corporation of Philip Morris Companies, Inc. As a corporate entity, Philip Morris knew from the early 1950's that its cigarettes were addictive and caused cancer, but denied both consistently and vehemently up until and including the trial of this case, February 22 - March 31, 1999.

The defendant told the 12-person jury that the case was about Jesse Williams, the choices he made and his personal responsibility. Plaintiff, in response, admitted comparative fault (in a modified comparative fault state) but asked the jury to determine whether Philip Morris shared that fault and to apportion it between the multi-billion dollar corporation and its customer (who, according to Philip Morris, acted unreasonably in purchasing, using and continuing to use its products and in not accepting the "common knowledge" that cigarettes are addictive and cause cancer - two bits of "common knowledge" that Philip Morris itself was unwilling to accept).

The jury found Jesse Williams and Philip Morris equally at fault and awarded $800,000 in compensatory damages. In addition, the jury found that Philip Morris was guilty of common law fraud for its 50 years of lies and awarded $79.5 million in punitive damages. The amount of punitive damages was reduced to $32 million by the trial judge and both sides have appealed the case to the Oregon Court of Appeals.

The complaint, the verdict form, jury instructions, and plaintiff’s memorandum opposing a reduction in punitive damages are attached.

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The Case

This was truly a David and Goliath case pitting four trial lawyers from small firms in Portland, Oregon who had never handled a tobacco case against a multi-billion dollar international mega-corporation who, according to them, had never lost a case. The case was filed in May, 1997 and the trial was February 22 - March 31, 1999. The strategic, tactical, and organizational skills involved were legion. Arrayed against the plaintiff's lawyers were at least eight attorneys who made official appearances in the case - in addition to the legions of back-up attorneys, paralegals, legal assistants, investigators, audiovisual experts, public relations professionals, and others too numerous to mention.

The obstacles and pitfalls were, in many instances, those presented by Oregon state law. First, Oregon has an eight-year statute of ultimate repose for product liability cases. In application, this meant that plaintiffs had to prove that the lung cancer that killed Jesse Williams was caused by the cigarettes he had purchased during the last eight years prior to his diagnosis. Secondly, the Oregon legislature - in the late 1970's had codified Restatement (2d) Torts Section 402A - including the comments, which included the infamous comment I stating that "Good tobacco is not defective merely because it causes harmful effects." This, according to the trial judge, meant that we could not maintain a product liability action based on the inherent qualities (cancer causing) of the tobacco.

The documents, in the final analysis, were the fuel that propelled the case from start to finish. We were able to anticipate Philip Morris’ medical causation defense - not the exact "weird cell carcinoma" they came up with - but the fact that it was, inevitably, in the offing and had our rebuttal witnesses ready. And, of course, there was the family - the wonderful, committed extended family of a true family man. Jesse's widow, an unassuming, but incredibly strong matriarch of the family, would have made Jesse proud in the way she stood up to the Philip Morris lawyers’ cross examination. She held her ground with her head held high and, in doing so, made her family and her lawyers, proud and, no doubt, won the jury's heart.

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Public Interest Significance

The public interest significance of this case is obvious. It has provided an example and, hopefully, a road map for more such cases in the future. It represents a successful attack on the purveyors of the largest public health epidemic of our times and evidence that the tobacco industry is vulnerable. It has certainly caused the industry and its investors to sit up and take notice. It has even caused one of Philip Morris' competitors - Brown and Williamson - to break the industry stonewall by acknowledging publicly that cigarettes cause health hazards - not that they are a "risk

factor," not that "epidemiological evidence tends to show," not "some scientists believe," not cigarettes "may" contribute to health problems - but cigarettes cause health hazards. The importance of this case can be assessed on many levels. We approached it as a road map for other committed trial lawyers to follow to help their clients hold the tobacco companies accountable. It certainly had an immediate impact on Wall Street where Philip Morris stock lost about 15% of its value within a few days. It attracted nationwide (and, in fact, worldwide) media attention, fulfilled Jesse Williams' dying wish to expose the lies of the tobacco company, and compensated a family that lost a loving husband, father, and grandfather. Whether this case made (or will make) "new law" is yet to be determined. It will test the limits under state and federal constitutional law of punitive damage jurisprudence and may help clarify the application of fraud legal principles to the mass marketed product. While we cannot predict with any certainty the course of the future appellate process, we can say, without any uncertainty, that this defendant will continue its appeal - and with it, its refusal to accept its responsibility as a corporate citizen - to its last, gasping, coughing, wheezing breath. And we will be there to challenge them every step of the way.

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The Defendant's Conduct

The tobacco industry's conduct kills more than 400,000 people annually in the US alone - over 6,000 in Oregon. And that is in addition to the countless thousands who suffer disease and disability from tobacco-related illnesses. And, ironically, because this product almost inevitably kills its best customers ("aged out of the market" in industry parlance), the tobacco companies, of necessity, must feed off of a constant recruitment of new - almost invariably - young victims ("replacement smokers"). They target, seduce, addict and finally, kill our children. How long can our society - in the name of freedom of choice or pursuit of pleasure or free enterprise - condone this conduct? Our jury, at least, said, "It stops in Portland."

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