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Excerpts from closing argument of nicotine Attorney Nyhan in Maddox vs. R. J. Reynolds, 10/29/97, Verdict for Defendant


Analysis

When you leave this courtroom and begin your deliberations, there are two values that I encourage you to consider. The first one of these is personal responsibility. So when you think about Mr. Maddox, who chose to smoke for 48 years and who chose to ignore the warnings on those packages for close to 30 years, ask yourself, is his smoking the responsibility of anybody else?

The second value I'd like you to think about is justice. That's an enormous value that we as individuals and as a nation place on justice, and the reason we do, but especially the reason you are here in this courtroom for over a month, is because we place such a high value on justice.

I hope you'll ask yourself whether it isn't wrong to be using our justice system to try to get rich.

Mr. Maddox was well aware of the health risks of smoking. He knew the risks. He was a smoker by choice.

 

 

 

 

We know from Mrs. W's testimony that since 1966 when warnings first appeared on cigarette packages, Mr. Maddox smoked two packs a day for about 28 years for about 20,000 packs of cigarettes.

 

 

Yet, the plaintiffs must prove to you that Mr. Maddox was not warned of the dangers of smoking. They ask you to believe that he never once noticed or read the warnings that have appeared on every package of cigarettes sold in the United States since 1966.

 

Indeed, I ask you to use your common sense and ask yourself how likely it is that anyone in this country could have smoked for almost 50 years and not have known that there are health risks associated with smoking.


Dr. Horn was the director of the U.S. government's national clearing house for smoking and health, the organization that writes the Surgeon General's reports. He stated you could stand on a rooftop and shout smoking is dangerous at the top of your lungs, and you would not be telling anyone anything they did not already know.

You have heard experts such as John Heller, the director of the National Cancer Institute and Leroy Burney, the Surgeon General confirmed that Americans have long been well aware of the risks associated with smoking.

Surgeon General Burney: "We have informed the public through the excellent coverage of the press, radio, and TV."

 

 

 

His co-workers also testified that he was well aware of the risks. Eight witnesses all testified that Mr. Maddox had seen and read the warnings on cigarette packs, that he referred to cigarettes as "coffin nails" and "cancer sticks," that he had told them he knew smoking was bad for him. He knew the risks.

 

 

 

That, ladies and gentlemen, is the plaintiff's entire case. The Devil made me do it. The Plaintiff's attorney has spent four weeks trying to persuade you that my client is the Devil and that the Devil alone is responsible for Mr. Maddox's smoking two packs of cigarettes a day for almost 50 years.

 

The plaintiffs know you aren't going to believe that he (Mr. Maddox) wasn't aware that smoking was risky. So their fallback explanation for why he smoked for 48 years is that he was addicted.

 

 

 

Mr. Maddox smoked for 48 years, and now his family wants to blame someone else for that choice. But the truth is the responsibility for Mr. Maddox's smoking lies squarely with Mr. Maddox. And for that reason I ask that you return a verdict against the plaintiff.

 

there's an enormous hole in the center of the plaintiffs' case, and that hole is the fact that Mr. Maddox chose to smoke for 48 years.

Mr. Maddox smoked for almost 50 years because he wanted to smoke.


Mr. Maddox was familiar with the warnings and familiar with the health risks of smoking, and he chose to keep smoking anyhow.

I am sure most of you have known people who have smoked for all of their adult lives, and I want you to ask yourselves whether you believe that if the Yeaman letter (smoking is addictive) had been made public when it was written, any of those people would have stopped smoking. This is the great flaw in plaintiffs' argument.


According to every other person in the room, he was well aware of the risks of smoking and chose to smoke anyhow.

Either way, there is not one shred of evidence to suggest that had every single document in this basket that Plaintiff's attorney has shown you been made public the moment it was written, there is not one shred of evidence to suggest that Mr. Maddox would have smoked one less cigarette.

 

Every single cigarette advertisement since 1972 has included a warning from the Surgeon General.

 

Whether or not you think smoking should be labeled an addiction, I'm sure you know that people who want to stop smoking can and do stop. Fifty million Americans have stopped smoking cigarettes. Some find it more difficult to stop than others. But the fact is, people do it every day.

 

As I said in my opening remarks to you, addiction is a word that is used pretty broadly these days. It no longer means behavior that people are powerless to change. Passions such as routing for a sports team are now called addictions, and so are bad habits. I won't quibble with the plaintiff's assertions that Mr. Maddox was addicted to cigarettes in this sense of the word.

 

But in this sense of the word, addiction is not a lifetime condition.

I'm not going to try to convince you that smoking cigarettes for almost 50 years may not have been the cause of Mr. Maddox's lung cancer. Of course, it may have been. The possibility of contracting lung cancer is a risk that goes with smoking, as I'm sure every one of you knew before this trial began. Roland Maddox chose to smoke for 48 years.

Yet the plaintiffs in this case want you to believe that he bears no responsibility for doing so.

The plaintiffs don't believe in personal responsibility, and they don't believe in justice either. Even if you disapprove of smoking, I urge you not to side with the plaintiffs in this case.

 

Even if you disapprove of the tobacco companies, I urge you not to side with the plaintiffs. This trial isn't a popularity contest.

 

This trial is about the preposterous claims made by the plaintiffs. Whatever you think of smoking and whatever your opinion of tobacco companies, I hope it will not prevent you from saying to the plaintiffs in this case, personal responsibility does matter; that it's wrong for Mrs. Maddox to try to get money from my client for a choice that was entirely Mr. Maddox's.

 

 


I know that some of you may feel that he made the wrong decision, the wrong choice. But it was his choice and his choice alone. The devil didn't make him do it.

 

like virtually everyone else in America, Mr. Maddox knew there were risks associated with smoking, and he chose to smoke anyhow. Mr. Maddox liked to smoke. Warnings didn't stop him after 1969, and they wouldn't have stopped him before 1969 either.

 

Now, one of the instructions he's going to give you includes this statement: A manufacturer is not liable for failing to warn of a product's risks if those risks are generally known to the ordinary consumer who purchases the product with the ordinary knowledge common to the community as to its characteristics. That's what the law is. Now, that's why surfboards, for example, don't carry a warning about the risks of drowning.

When Judge Mitchell instructs you on question two, he'll tell you that for the cigarettes to be considered defective, the law requires proof first that the Tobacco Company could have produced a safer cigarette and, second, that the safer cigarette would have been commercially practical.

 

Mr. Maddox smoked because he enjoyed doing so

 

 

 

The first thing this teenager lost was his freedom to chose, his ability to decide each day whether or not to continue ingesting this nerve poison. Notice the use of the phrase "chose to smoke" rather than chose to use nicotine.


By "justice" he means not holding the nicotine companies accountable for the untold amount of death, disease, suffering and financial ruin they cause each day.

 

Like the nicotine companies haven't exploited our justice system for decades.

There is never any mention of whether or not this non-addicted teenager was fully and legally aware of the consequences of starting the use of this nerve poison.

Instead he is using warnings put out by almost everyone about the dangers of "smoking" as a key part of his defense.

 

Rather than stop the addict using nicotine, the "warnings" (reluctantly agreed to by the industry) magically create a wonderful defense in court. Note the use of the word "cigarette" rather than the word "nicotine".

Very effective double talk. Plaintiff can't win this argument. Defendant wins either way. If he didn't read the warnings it's not their fault and if he did and did not quit, its not their fault. Note continued control of the language of the debate with the highlighted words.

Classic example of the traditional anti-smoking message providing a defense for the nicotine industry in court while at the same time having little effect on the number of new nicotine addicts coming on line.

Example of our government health services providing a defense for the nicotine industry in court.

What health organizations have never shouted is that nicotine is a highly addictive nerve poison - three times more toxic than arsenic - the first thing it takes from its victim is their freedom of choice.

Cancer Institute and Surgeon General by providing the wrong message have provided the perfect defense for the nicotine industry in court.

The Surgeon General has never informed the general public that nicotine is a nerve poison and that the first thing it takes from its teenage victim is their freedom of choice.

What good is being aware of any of the risks if the victim has lost their ability to make a free choice each whether or not to continue ingesting this nerve poison.

Not one piece of evidence that this teenager was fully and legally aware of the consequences of using this addictive nerve poison before he started.

Once again the "responsibility" argument is turned up side-down convincing the jury that Mr. Maddox was responsible for continuing his own addiction. When in fact it was the nicotine company which was responsible for addicting him in the first place.

Not one piece of evidence that as a teenager, Mr. Maddox, was fully and legally aware of the consequences of using this addictive nerve poison before he started. For most addicts the warnings are meaningless yet they provide the industry's defense in court.

 

Here is the key word "choice" again. They are not guilty because Mr. Maddox, who has lost his freedom of choice as a teenager, did not choose to stop ingesting their nerve poison. They took his freedom to chose away but artfully try to lay the responsibility for not quitting on him.

 

Here is the key word "choice" again.

The nicotine industry is well aware that once addiction takes over, a large percentage of addicts will continue for life rather than endure the pain of withdrawal. They call this "wanting to smoke".

Again the "warnings" only provide a defense and here again his inability to endure the pain of withdrawal is explained as a free choice to continue.

The vast majority became addicted as teenagers. His question - do you believe an addict will quit their addiction when you tell them the drug they are using is addictive. He uses the obvious "no" answer to win his case.

Again the "risk of smoking warnings" only provide a defense and here again his inability to endure the pain of withdrawal is explained as a free choice to continue.

Since their product took away his freedom of choice as a teenager then sure this point is correct. He just avoids the responsibility for taking away Mr. Maddox freedom of choice to begin with.

Would this point be different if the warnings had informed the general public that nicotine is a nerve poison and that the first thing it takes from its teenage victim is their freedom of choice?

A small percentage of people can quit heroin or cocaine. What about the vast majority who can not endure the pain of withdrawal from these drugs. Because a few can, should the drug pushers not be liable for damages inflicted on those who can't?

He comments on the real meaning of addiction then redefines it to mean a bad habit or being over enthusiastic about a sports team. The he submits that Mr. Maddox problem was only that he had too much passion, just a bad habit.

True, passions and bad habits are not lifetime conditions - for most people addiction to the nerve poison nicotine is.

Note the continued use of "smoking cigarettes" instead of "using nicotine".

He is relying on the usual warnings about smoking causing lung cancer to avoid any responsibility by the nicotine industry. Brilliant! We addict you as a teenager knowing most can't quit and then rely on subsequent warnings to avoid liability.

Obviously Mr. Maddox made a huge mistake becoming a nicotine addict as a teenager. Taking that first dose was a mistake. By confusing the mistake of starting nicotine with the addiction which causes the continuance of nicotine they avoid all responsibility.

Again note how he controls the language of the debate with words like "tobacco" "smoking" and "cigarette". Never "nerve poison" and "nicotine use".

The public doesn't know what to think of nicotine and the nicotine companies because the gov't and well-meaning health officials have never gotten the correct message to the general public. They continue warning addicts which does little good but provides an obvious defense for the nicotine industry in court. They took away Mr. Maddox's freedom to make a choice and exercise personal responsibility by addicting him to nicotine.

Key word "choice" used 3 time. They took away his freedom to make a choice each day by addicting him to nicotine. The devil didn't make him do it, nicotine did.

The warnings/choice mantra is repeated over and over. The addict's only choice each day is attempting to endure the physical pain of nicotine withdrawal versus the blessed relief provided by that first hit of nicotine. For most this is not a real choice. They call this liking to smoke.

He continues to rely on the anti-smoking health messages for a defense. Common knowledge in the community that nicotine is a nerve poison and that the first thing it takes from its teenage victim is their freedom of choice is totally lacking.

To look good to juries on a defective product claims the companies have invested a few dollars in developing a "safer" way to deliver the required dose of nerve poison. Catch-22. The only safe cigarette does not contain nerve poison but it fails the 2nd requirement of being commercially practical because addicts won't buy it. Hence they win on this issue.

Like any addict, Mr. Maddox had to answer the drug craving each morning because he could not endure the alternative withdrawal symptoms. Satisfying that craving could, in a sick and twisted fashion, be called enjoyment.

 

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