What’s Wrong with This Picture? Defense Lawyers Are Praised for Going after Old, Sick Plaintiff

What is wrong with this picture?

  The leading partners of Shook, Hardy

A defense lawyer goes after a dying plaintiff on trial.  The strategy backfires, and the defense lawyer loses.  The jury resents the attack against the sick elder and awards millions to the plaintiff.  This defense law firm is given a celebratory profile in the American Bar Association Journal.

What is wrong with this picture?

In the October article entitled “Shook Hardy Smokes ‘Em”, the Shook, Hardy defense law firm is celebrated for its take no prisoners approach to defending tobacco and other other products cases.  Shook Hardy is a Midwest law firm which practices nationally and has specialized in defending tobacco companies in smokers’ products liability cases.

The following instance is cited as an example of how Shook, Hardy will go after a plaintiff:

 It was a Perry Mason moment.

The witness, an old man dying of lung cancer, had just finished telling the jury why he could be so sure that Kent was the brand of cigarette he had switched to as a young man almost a half century earlier.

The man was the plaintiff in a closely watched 1995 product liability suit against the tobacco industry. He had been diagnosed with mesothelioma, a rare but deadly form of lung cancer caused primarily by exposure to asbestos. And he blamed his disease on a filter containing asbestos used in Kent cigarettes over a four-year period in the mid-1950s.

The witness said he took up smoking during World War II and that he clearly remembered switching from an unfiltered brand to Kent shortly after it came on the market in the spring of 1952.

Since there was no evidence to support his testimony, his credibility was key.

It was an important time in his life, he told the jury on direct examination. He had just finished school in Kansas and gotten a job as a clinical psychologist and instructor at a university hospital in Cleveland. Kent was heavily marketed as the first “healthy” cigarette. One of the doctors he worked with even recommended them.

And he couldn’t forget the distinctive blue color of the Kent filter, because it was “exactly the same color” as his late father’s beautiful blue eyes.

When it was time to cross-examine the witness, the tobacco company’s lead trial counsel—a young lawyer who looked as if he had never smoked a cigarette in his life—wasted no time on pleasantries. He peppered the witness with questions about his medical history and smoking hab­its. He asked him about the possible side effects of his illness and his understanding of the role that hindsight can play in a person’s ability to recall events clearly.

Then suddenly he brought up the witness’s description of the Kent filter being the same color as his deceased father’s blue eyes.

“Did your father have brown eyes?” the lawyer asked, producing a copy of a citizenship petition apparently signed by the father when he immigrated to the United States from Austria in 1928. It listed the man’s eye color as brown.

“That’s what it says, but that’s not true,” the witness replied, his own blue eyes welling with tears. “Are you telling me that my father had brown eyes?”

“All I’m telling you is that’s what it says in this petition,” the lawyer responded.

“That’s ridiculous,” the witness muttered indignantly, as the document was offered into evidence. “Are you trying to tell me what [color] my father’s eyes were?”

That made-in-Hollywood exchange was the handiwork of lawyers from the Kansas City, Mo., firm of Shook, Hardy & Bacon. It had all the hallmarks of the firm’s style—the search for any relevant record, no matter how obscure; the tough cross-exam­ination; the coup de grâce delivered at just the right moment. It’s made Shook Hardy the firm many of the world’s biggest companies turn to at the first hint of trouble with one of their products.

And it’s a style of litigation that keeps them coming back, even when, as in the case of Kent-smoking Milton Horowitz, the jury awarded $2 million in damages. The foreman told reporters afterward they had been incensed by the cross-examination of the dying old man.

And these are great trial lawyers?

  What would Perry Mason say?

A litte more about that tobacco case and another example of the Shook, Hardy touch:

Four years after the Horowitz trial, Chaber represented another client in another product liability suit against Philip Morris. Her client was Patricia Henley, a Los Angeleswoman who was diagnosed with lung cancer after smoking Marlboros for 35 years.

Henley, then the divorced mother of a 25-year-old woman, hadn’t seen or heard from her ex-husband since he walked out on her and her daughter when the daugh­terwas a young girl. Shortly after the suit was filed, Chaber says, somebody from Shook Hardy managed to locate the man, who was remarried and living in Canada, to inquire if he could ask him a few questions about his ex-wife.

“They’ll do whatever it takes to dig up the least bit of dirt on the plaintiff, no matter how much it costs or who they might offend,” Chaber says. “They’ll investigate every single detail of the plaintiff’s life, from the time they’re born until the time they die, and maybe even further.”

Ray Goldstein, a San Francisco paralegal who has worked opposite Shook Hardy in several anti-smoking suits, says the firm brings in an army of lawyers for every case, deposes everyone they can find, and overwhelms the plaintiff’s side with paperwork.

If you ever lose your dog or you need to locate a missing relative, Goldstein likes to joke, you should just file a product liability suit against a tobacco company and let its lawyers do the work for you. “They’re really good at it,” he says.

Such tactics can sometimes backfire. Henley won a record-setting $51 million verdict, including $50 million in punitive damages, although the judgment was sub­sequently reduced on appeal to about $17 million, with interest.

Gee, if these trial tactics merit a full, laudatory profile by the magazine of the American legal establishment, could you imagine how this firm would be praised if it had actually won some of these cases?

As for me, I am proud of representing people injured in accidents and people fighting insurance companies for their benefits.  It is good to be on the side of the angels.

If you have a potential personal injury or insurance case, please feel free to call me 800-581-1434 for a free consultation.

Mark E. Seitelman, 10/3/08, www.seitelman.com.


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