Kaye Scholer Secures Unanimous Defense Verdict for Philip Morris After Three-Week Trial

As reported in this week's Law360 "Lions and Lambs" column, Litigation partner Pam Yates won a unanimous defense verdict on behalf of Philip Morris after a three-week trial in Pooshs v. Philip Morris USA Inc., et al. The eight-person jury deliberated only 75 minutes before returning their verdict that Philip Morris cigarettes did not cause plaintiff’s lung cancer.

The case, tried in the Northern District of California before Judge Phyllis Hamilton, targeted Philip Morris and co-defendant R.J. Reynolds claiming that Pooshs’s 38-year smoking history of cigarettes manufactured and sold by these two companies had caused her lung cancer. Mrs. Pooshs began smoking in 1953 at the age of 12 and continued until she quit in 1991. At times, Mrs. Pooshs’s smoking history revealed as much as two packs a day.

In 2003, 12 years after quitting, Mrs. Pooshs was diagnosed with stage IV adenocarcinoma in the lungs with metastases to the brain. Despite an initial prognosis that she would live less than two years, Mrs. Pooshs is still alive and doing well. Plaintiff counsel Gil Purcell called expert witnesses in the fields of epidemiology and pulmonology to testify that this is a simple case: long-time smoker with lung cancer; smoking caused the cancer; case closed.

Philip Morris and RJ Reynolds called experts in the fields of pulmonology and pathology who testified that, based upon the scientific evidence, Mrs. Pooshs’s subtype of adenocarcinoma had none of the usual tobacco-caused lung cancer “finger prints”; that her subtype is seen more often in nonsmokers; that they had never seen a case like this in their extensive clinical practice in a smoker, but had seen similar cases in nonsmokers; and despite her increased risk from a long history of heavy smoking, offered the opinions that smoking did not cause her cancer.

In addition to a no-causation strategy, Yates focused the Philip Morris defense on the limited amount of exposure to Philip Morris brand cigarettes in plaintiff’s overall smoking history. Plaintiff had smoked five different Philip Morris brands but under cross-examination, plaintiff admitted that they were never her “regular” or favorite brands.

Yates was ably assisted by Case Manager Kevin Willett as lead trial paralegal.