LEXINGTON, MISS., JAN. 4 -- At the dawn of a trial in a tobacco product liability lawsuit here today, a plaintiff's lawyer unveiled a surprise strategy, admitting "right up front" that his client was partially at fault for his death.
The admission -- to a panel of prospective jurors -- was an unusual attack on the defense of American Tobacco Co. that the plaintiff "was an adult, intelligent, determined person" who had made a free choice to smoke and was therefore personally responsible for the consequences.
The move appeared to be an attempt by plaintiff's lawyer Don Barrett to paint American Tobacco as unreasonable in holding itself utterly blameless for the emphysema and inoperable lung cancer that killed Nathan H. Horton, 50, last January. Horton had smoked Pall Malls for 31 years.
Barrett also told the panel he seeks an award of compensatory and punitive damages under a state law allowing a jury to apportion responsibility as it wishes between a plaintiff and the manufacturer of an alleged unreasonably dangerous product.
For American Tobacco, Jim Upshaw repeatedly objected that Barrett was making an opening statement in the guise of screening the panel with questions. Getting no comfort from Holmes County Circuit Judge Gray Evans, he made a final futile plea: "I'm begging the court to stop it."
When Upshaw's turn came to question the panel, he said that the company's defense is "assumption of risk" -- that Horton had made a free choice to smoke and therefore was accountable.
In asking the jury to apportion fault, Upshaw told the panel, "Mr. Barrett was already asking you to compromise your convictions."
"The Horton family tells you now -- right up front -- that Nathan Horton shares some of the responsibility for the horrible death he suffered," Barrett said.
"He should not have started smoking, even though he was just a child when he became hooked, and even though this was some 15 years or so before the first warning label was ever put on a package," Barrett continued.
"He should have had the wisdom and the strength to break his addiction, even though he could have had no idea about all the contaminants we find in Pall Mall cigarettes," Barrett said. "My question to you is, are you willing to listen to the evidence as to the wrongful conduct of the tobacco company ... ?"
The selection of 12 jurors and 4 alternates was completed last night. The trial is expected to last at least four weeks. Up to now, no tobacco company has ever paid a cent to dispose of a lawsuit brought by an injured smoker.
Upshaw said the defense will show that smoking is not associated with the type of cancer that killed Horton. Barrett said that for Horton to have assumed the risk, he had to have appreciated "the full extent of what that risk was."
Horton did not understand the full risk, Barrett said, adding that his evidence will show that a Pall Mall "is not pure tobacco wrapped with pure white paper," but a product "loaded with poisons, deadly radioactive material, and other cancer-causing junk ... and these things helped to kill Nathan Horton."