[EDITOR'S NOTE: In a case covered on Court TV, retired air traffic controller Grady Carter, sued cigarette maker Brown & Williamson after he developed lung cancer and won. Shortly after the verdict, Carter's lawyer Norwood Wilner was Court TV's guest on America Online's Center Stage. He talked about the Carter case and its implication on the thousands actions that are being brought against the tobacco industry. Brown & Williamson was asked to participate in this event. It declined. Court TV's Jane Okrasinski, who covered the trial from Jacksonville, Florida, served as moderator. The following is a transcript of the Aug. 27, 1996 event.]
Court TV: Hello everybody. Welcome to our chat on Tobacco litigation. We have as our guest Norwood Wilner the lawyer who just tried what a lot of people are calling are calling a landmark case in tobacco litigation. He represented Grady Carter, a man who sued cigarette maker Brown and Williamson. With him is Court TV's Jane Okrasinski Hello.
Norwood Wilner: Hello
Court TV: Any opening remarks? What do you think of the president's move last week to declare tobacco an addictive drug?
Norwood Wilner: I think it's a step on the right track. But the new regulations don't go far enough.
Jane Okrasinski: Today I saw a story in the Wall Street Journal about the possible movement to settle the Medicaid cases.
Norwood Wilner: Any settlement that does not include injured parties, would not be a good settlement.
Jane Okrasinski: The story I read indicated that the proposal would limit other lawsuits.
Norwood Wilner: I think that would be wrong. I think the industry must compensate its customers who are sick and dying from it's products.
CourtTV: Let's take question's from the audience.
Question: Is your goal to obliterate the tobacco industry? Do you want the companies out of business? What about all those jobs?
Norwood Wilner: We want the companies to do three things . . . One, compensate sick and dying customers; Two, tell the truth about their product; And three, fix the product so it doesn't cause harm.
Jane Okrasinski: As a practical matter, though, wouldn't that mean the end of the industry?
Norwood Wilner: No, I don't think so. The industry spends $6 billion a year on advertising alone. It can afford to compensate the victims.
Question: So many states are suing the tobacco companies. . . How do you think those cases will shake out? Any predictions?
Norwood Wilner: I think the state cases will eventually succeed. But it will take time. Meanwhile, individual suits will proceed.
Jane: Isn't the purpose of the state suits different?
Norwood Wilner: Certainly, individual cases seek compensation for sick and dying customers
Question: Do you think it would be fair for punitive damages in tobacco cases to go to medical treatment and research, rather than plaintiffs? Wouldn't that address the problem rather than enrich a few lucky litigants?
Norwood Wilner: Litigants with cancer and heart disease are not lucky. No objection to companies sponsoring research.
Question: Can you compare tobacco litigation to any other legal trends? Asbestos? Anything else?
Norwood Wilner: Somewhat similar to asbestos. However, more people are affected by tobacco.
Jane Okrasinski: Isn't it also similar in that it took a long time for cases to begin to succeed.
Norwood Wilner: Fair enough.
Jane Okrasinski: To take the asbestos comparison a step further, didn't that put an end to the industry?
Norwood Wilner: Some companies sought bankruptcies. But certainly not all.
Question: What is your answer to the tobacco company's personal responsibility argument?
Norwood Wilner: Everyone needs personal responsibility, including industry officials.
Jane Okrasinski: But at some point, is it not an adult's responsibility to protect themselves?
Norwood Wilner: All consumers are entitled to the truth. The industry has not provided this. Also, all customers are entitled to the best products that can be made. These have not been provided.
Question: Were the so-called stolen B&D internal documents the key difference between the Grady Carter case and the Rogers case?
Norwood Wilner: The B&D docs were not stolen. They were disclosed through the conscience of an employee. The evidence seen by the Florida jury proved important. The same evidence was kept from the Indiana jury for technical/legal reasons.
Jane Okrasinski: What was the rationale for excluding the documents in Indiana?
Norwood Wilner: Incorrect (my view) reason was that the Indiana case was a retrial of 1994 proceeding.
Question: What do you think of the new restrictions on Tobacco that Clinton laid down? Where might it make a difference?
Norwood Wilner: They are overdue but failed to go far enough to curb a very aggressive and untruthful industry.
Jane Okrasinski: But doesn't it make some sense to focus first on kids?
Norwood Wilner: Yes, as part of a plan for compensation disclosure.
Question: What is your next move against the tobacco industry. Will we see you on Court TV soon.
Norwood Wilner: We will continue to bring claims by injured and dying consumers; inquire from CTV about coverage.
Jane Okrasinski: Don't you have a small county trial starting in October?
Norwood Wilner: Yes, Mr. James Clark is scheduled to present his claim against Liggett & Myers.
Jane Okrasinski: How does that case differ from the Grady Carter case?
Norwood Wilner: It is fundamentally the same. Mr. Clark is younger, but suffers a terminal disease.
Jane Okrasinski: Does that case involve more than one brand of cigarettes.
Norwood Wilner: No, L&M cigarettes are the focus of the Clark case. We believe these cigarettes were not as safe as they could have been.
Question: If an individual smoked many different brands of cigarettes over the course of his lifetime, who would you sue?
Norwood Wilner: This would take a review of the entire case. In general, a manufacturer is responsible if its product was a substantial contributing cause of the injury.
Jane Okrasinski: Isn't Florida law more favorable to plaintiffs in these types of cases.
Norwood Wilner: Florida has tough consumer laws which apply to tobacco companies.
Question: How is B&W going to appeal? What are the appeal issues?
Norwood Wilner: My view: an appeal is unlikely to succeed: B&W contests evidentiary matters that are typically within judge's discretion.
Jane Okrasinski: I expect among the grounds of the appeal will be the scope of the opinion testimony from the plaintiff's experts as well as some questions about the B&W docs.
Norwood Wilner: Opinion testimony is exceedingly weak appellate ground. No adequate privilege ground was ever demonstrated for contested docs.
Question: Could you have won your case without the stolen B&W documents? If so, how would it have been different?
Norwood Wilner: Documents not stolen (see above). The case is winnable on medical and expert opinion, but documents provided important insights.
Jane Okrasinski: The jury foreman indicated jurors were greatly troubled by the information B&W apparently had early on and concealed.
Question: How can a person that CHOOSES to smoke blame someone else for lung cancer?
Norwood Wilner: Consumer protection laws apply to products voluntarily purchased. A choice is not a choice unless the truth has been disclosed. We presented evidence that the B&W was untruthful. Consumers, even today, greatly underestimate the true hazards of the products.
Jane Okrasinski: And it is also argued that many people make the choice to begin something when they are still minors.
Norwood Wilner: Furthermore, the consumer's use of the product is greatly affected by the addictive nature of nicotine.
Question: What will Grady Carter do with all that money?
Norwood Wilner: Please ask Mr. Carter. But he has been through a lot. So, I don't begrudge him anything he receives from all this.
Jane Okrasinski: It may be a long time before Mr. Carter gets his award -- because of the appeals and other delays.
Norwood Wilner: True, Jane, but we hope that any appeals will be resolved with the same dispatch that characterized the trial proceedings.
Question: Is there a statute of limitations in Florida to bring suit against a cigarette manufacturer?
Norwood Wilner: Yes. A consumer has four years to bring a lawsuit after she realizes that she has a cigarette related disease.
Question: Why do you think you were successful in Florida, even though last week in Indiana a similar case was lost?
Norwood Wilner: Evidence in Indianapolis was more restricted; also juries do differ in how they look at situations presented to them.
Jane Okrasinski: Lawyers, plaintiffs, judges and state law also differ.
Norwood Wilner: Thank you, Jane for the embedded compliment.
Question: How are the lives of tobacco farmers to be affected?
Norwood Wilner: Interesting question on the future of the tobacco industry. Possibly safer tobacco products can be developed. Otherwise, the future will see less tobacco use in this country.
Court TV: Well, that about all the time we have. Any closing remarks?
Norwood Wilner: Thank you for allowing me to comment on these interesting subjects. I look forward to discussing this with you or anyone who has remarks or questions.
Court TV: And Jane?
Jane Okrasinski: It is an important debate and we should all be watching developments in the courts
Court TV: What is the most import case right now to watch? and the political arena.
Norwood Wilner: We are aware of the state attorney general cases -- but they are far from resolution. Right now, watch Florida.
