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Excerpts from closing argument of nicotine Attorney Grossman in Karbiwnyk vs. R. J. Reynolds, 10/29/97


Analysis

This is a case about choice. Some people may choose to stop smoking and have real difficulty,

Mrs. Karbiwnyk for many years chose to continue to smoke

 

Mrs. Karbiwnyk started smoking Reynolds cigarettes sometime after October of 1957 and the entire warning period that is in question here is between that time -- sometime after October 1957 and July 1st, 1969, when congress' warning became preemptive.

 

 

Now, let's think about products with risks. You go down any department store aisle, any supermarket aisle, any sporting good aisle and there are loads of products with risk. Alcohol, certainly; skateboards, butter, almost everything that we have has risks. What makes cigarettes different more than anything else is that the risks are so well-known and have been for so long.

 

 

Let's go back to that awareness pole that you saw. This was the pole in 1954, way back, that asked, "Have you heard or read that cigarette smoking may cause lung cancer?" 90 percent of the American public had heard or read that.

 

 

. And if you're a smoker and you see reports on CBS News or in the newspapers, in the serious newspapers, in magazines of lung cancer, obviously that has more personal effect on you.You can receive warnings and choose to ignore them, as Mrs. Karbiwnyk said she did,

 

 

congress hasn't made them (cigarettes) a legal product because it believes them to be safe, but rather because it understands that the public knows the risks of the product and also believes that it's a personal choice whether to smoke or not; as it is to take on many other risks in life.

 

 

It says, "It's the official government position that cigarette smoking causes cancer," which wasn't until 1964 in the surgeon general's report.

 

What makes cigarettes different from other products? Is that the risks -- not just that the risks in some respects are different, but they are so well-known. 

The basic point. What people had heard in the '50s, what people heard thereafter was that cigarette smoking can cause death. People heard that it shortens their life expectancy, and they heard specifically lung cancer. That's what the public -- all of the public heard. That's what most of the public believed.

 

 

"Now, Mrs. Karbiwnyk, although the surgeon general had said that cigarette smoking causes cancer --"Uh-huh." -- that had no effect on your conduct And you chose to continue smoking as you had before; isn't that right? "Yes, sir."

 

 

 

1964 Mrs. Karbiwnyk heard the surgeon general say that cigarette smoking causes cancer and shortens life and she believed it, but she decided to continue exactly as before. "You understood the risks involved in smoking. As you said yourself, it was there in black and white; isn't that right?

"It was on there, yeah.

"And you made a choice to ignore the warning; isn't that correct? "Yes.

"And you chose to continue notwithstanding Congress has decided that cigarettes should be a legal product with all of the information before them, because they want each of us to choose. Because reasonable people can choose to smoke.

 

 

 

congress, having been provided with all the surgeon generals' reports and all the information available, has decided to allow the sale of cigarettes

These people (nic. industry) devoted their lives to trying to make cigarettes that were less hazardous and people would buy. And they worked with the government.

If anybody could produce a cigarette that people would want to smoke that


eliminated the risks that have been associated with cigarettes.Reynolds has consistently tried to work with the government in designing cigarettes. Consumer expectations are not that this is a safe product, those have never been consumer expectations regarding cigarettes. Consumers believe cigarettes to be a risky product, including the risk of lung cancer, including the risk of death.

"It's your testimony that if smokers had switched over to Premier or Eclipse, lung cancer deaths would have decreased? "Yes, sir.

Premier and Eclipse, over a billion dollars devoted to the research and development of that and people still haven't bought it. They spent hundreds of millions of dollars. No one bought it. It was not commercially feasible. It could not be sold at any price that would make a profit,The design of these cigarettes contained risks but they were the risks of cigarettes, and those risks have been well-known.

Our last witness works with people who want to stop smoking, he said that in his entire career, which goes back to the early '60s, he has never had a smoker who didn't understand the risks of smoking. In fact, in his entire career, every smoker who he's treated has thought he was going to get lung cancer 

The point is that these risks are so well-known, they are so absorbed by the community.The one thing that you've known all your life essentially was related to lung cancer is smoking; she said yes.

 

 

And that's why what she knew, what she understood, and the choices that she made are at the very center of this lawsuit

 

 

 

I submit to you, the one thing you know is that Mrs. Karbiwnyk, through all or at least most of her smoking history understood that cigarettes might kill her, and she said herself that she decide to smoke.

 

Key work is always "choice" or "choose". The first thing this nerve poison takes from its teenage victim is their freedom of choice and yet the industry uses the very freedom their addictive drug destroys as their defense.

Once addicted, there is on choice but to continue for most victims - withdrawal is simply to painful no matter the warnings.

Note the language control in the high-lighted words such as smoking, tobacco, smoker and cigarettes. Never nerve poison, nicotine addict or chemically addictive drug.

This is the standard warning/risk defense. "Many products have some risk but nicotine is different because its risk have been so well known for so long." Our well meaning health organizations have put out an ineffective warning for years that has (1) kept few kids from becoming addicted, (2) been meaningless to those already addicted and (3) provided a great defense for the industry to hide behind in court.

He boldly argues that over 90 % have known smoking may cause lung cancer since 1954. What the public has never been told is that nicotine is a highly addictive nerve poison and that the first thing it takes from its victim is their freedom of choice.

 

In other words, if you are already addicted and see reports about smoking and lung cancer, you have no one else to blame if you continue your addiction. When addicts, by definition, don't have a choice.

The nicotine industry has known for years that the so-called "warnings" were meaningless to addicts.

Double Talk! Because of their lobbyist, the massive political donations and the tax revenues paid by the addicts - our government has kept this nerve poison legal. He argues (1) the public knows the risk when in fact almost no one knows nicotine is a highly addictive nerve poison, and (2) personal choice to smoke. Maybe of the first few doses of nicotine but it is this very right of personal choice that the drug quickly takes away.

Our well meaning surgeon general has put out an ineffective warning for years that has (1) kept few kids from becoming addicted, (2) been meaningless to those already addicted and (3) provided a great defense for the industry to hide behind in court.

He is constantly using the traditional anti-smoking message as his defense. The stronger and better known that message is, the better his defense is.

By providing the wrong message, the anti-smoking community has played right into the hands of the nicotine industry. What if all that effort had been put toward telling the public that nicotine is a highly addictive nerve poison and that the first thing it takes from its victim is their freedom of choice.

A direct quote from the victim that government warnings about lung cancer were meaningless because she was already addicted to the drug. Her freedom each day whether or not to continue ingesting this toxin was long gone. He lays the blame for her apparently foolish conduct at her feet instead. This sounds believable to the jury and public if they don't understand nicotine.

 

It is this freedom to decide, which was taken away as addiction set in, that he is now using against her as if she were to weak or stupid to quit when warned. He makes it sound like she woke up each morning, free of the addiction, read warnings in the morning paper, and then made a conscious decision to spend the day ingesting nerve poison.

Classic double-talk. Nicotine must not be so bad because Congress, who always looks out for us, has made it legal. They want us to choose whether or not to us a nerve poison that takes away its victims freedom of choice first. If reasonable people understood nicotine, yes they could choose whether or not to start using it. The addict, by definition, lost their ability to make a reasonable choice each day about continuing this poison.

Wrong message to Congress and the public!

A safe cigarette would not contain nerve poison but the addicts wouldn't buy it because it would not satisfy their craving for nicotine.

"want to smoke" means it would satisfy the addict's craving for nicotine.

Because of the wrong message being put out by the anti-smoking community consumers expect people who chose to smoke to get cancer and die. If consumers understood nicotine to be the addictive nerve poison it is and that its victims quickly lose their right to chose, their expectations might be quite different.

Again, a safe cigarette would not contain nerve poison but the addicts wouldn't buy it because it would not satisfy their craving for nicotine. But it sounds good to a jury.

"We'd like to take the nerve poison out but to keep the addicts buying and the company making a profit we have no choice but to leave it in."

 

Again referring to the traditional anti-smoking message about risk for his defense. In fact the real risk of cigarettes as source of addictive nerve poison is basically unknown by the general public.

The point! Warnings of death, disease, cancer, pain, financial ruin, loss of family and relationships, etc., mean nothing to the addict.

The risk of our children losing their freedom of choice to this addictive nerve poison has never been told much less absorbed by the community.

Warnings are meaningless to the addict - they only provide an industry defense in court.

What the addict knows and understands are meaningless when their freedom to make daily choices has been taken away from them.

He artfully blends her original teenage mistake of trying cigarettes with her then inability as an addict to make a free decision each day whether or not to use nicotine.

 

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