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Attorney: Robert C. Weber, 49 Firm: Cleveland office of Jones, Day, Reavis & Pogue Case: Iron Workers Local Union No. 17 Insurance Fund v. Philip Morris Inc., No. 1:97 CV 1422 (N.D. Ohio) “When you’re dealing with a client perceived as a pariah,” says attorney Robert C. Weber, “you have to get the jury to empathize. You have to put [the] actions in context.” In the ongoing litigation against the tobacco industry, Weber says, the defense attorneys are representing “companies that have been under an unprecedented public vilification for five to six years.” So, he says, “you have to get the jurors to understand the business decisions that people had to make.” In 1999, Weber was one of the lead attorneys representing the industry in a suit brought by trust funds that administered the health and welfare funds for more than 100 unions in the state of Ohio. The plaintiffs contended that the tobacco companies conspired to deprive the public of information about the dangers of smoking and to deny the public access to safer cigarettes. The funds sought up to $2 billion, after trebling under civil Racketeer Influenced and Corrupt Organizations Act provisions. NO CONSPIRACY HERE The defense concentrated on stressing that the tobacco company decision-makers “were not engaged in any conspiracy or any nefarious activities,” Weber says, and that the responsibility for smoking habits and subsequent health costs should be shared by the federal government, society at-large and even the plaintiff unions. These themes, he notes, played an integral part in persuading a Cleveland jury to reject the plaintiffs’ case entirely — handing the tobacco industry a significant, and increasingly rare, high-profile win. Weber is one of the nation’s leading products liability defense attorneys and the chair of his firm’s products liability and regulation practice. He is lead counsel and coordinating counsel for several multijurisdictional products liability proceedings pending in the United States, Canada, and Europe for a wide variety of industries, including Colt in ongoing handgun litigation and IBM in workplace chemical exposure. For years, Weber has served as lead counsel for R.J. Reynolds Tobacco Co. in its smoking- and health-related litigation. In the union trust fund case, Weber recalls, the plaintiffs “said they had been forced to pay hundreds of millions of dollars for decades in smoking-related health costs.” They filed civil RICO charges against Philip Morris Inc., RJR Nabisco Holdings Corp., the Brown & Williamson Tobacco Corp., and other members of the industry, charging mail fraud, wire fraud, and conspiracy. The tobacco industry’s settlements with the states created exceptional obstacles for the defense, says Weber. “The settlements poisoned the minds of a lot of jurors.” The litigation has also uncovered “numerous damning internal memos from the tobacco industry’s own files.” The first three steps in any litigation are “know your client’s position, answer the questions the jurors would like to ask and anticipate the other side,” he says. In this case, “the plaintiffs put together a string of documents that would make certain inferences. Our job was to deal with the legitimate questions,” he says. “The defense has to address questions that are fairly raised from the evidence, or you are going to pay a price.” The defense team developed several simple themes: the companies were not engaged in any conspiracy; they did not set the rules or regulations governing tobacco marketing or production; they had attempted to improve the safety of tobacco products; and they did not determine the presence or incidence of smoking in the world, or cigarette use by the members of the unions involved. A major part of the plaintiffs’ case, Weber says, was the charge that the defendants had not only failed to make cigarettes safer, but also “the companies hadn’t listened to the scientific community and had actively done things to make cigarettes worse. Our counter was that if these actions really were nefarious, why is it that the same ideas were suggested by the National Cancer Institute and the government?” To bolster this theme, he says, “in discovery we sought government documents that could be used to poke holes in the plaintiffs’ case.” In any trial, “you have to sit back and think about where investigation can make a difference.” In this litigation, he says, “it made sense to focus the discovery on the government — what the government knew, what the government recommended. This lets the air out of the plaintiffs’ balloon.” The defendants also zeroed in on the responsibility of the unions themselves to their memberships and to the trust funds. “The unions didn’t discourage smoking; they didn’t tell people not to smoke,” he says, or offer programs to help members stop smoking. Blaming the industry alone for smoking-related illnesses “was revisionist history.” He laid out his themes in the opening, “in straightforward fashion, stressing certain evidence the jury should look for. It’s a positive, affirmative story,” he says. “You have to have an affirmative thematic story to tell. You address the concerns the jury will have — not what the client wants, but what the jury will think is important.” He continued developing the themes in the cross-examination of the plaintiffs’ witnesses. “We use the core themes thoroughly in the cross-examination,” he says. “By the time our witnesses are up, there are no new ideas; you’re just repeating and giving additional examples.” VARIED APPROACH He prepares thoroughly for these cross-examinations, long before the witnesses’ direct examinations. In determining possible questions for the witness, he says, “You limit yourself to your themes. If you lose focus, you run the risk of losing the jury’s confidence.” But, he adds, although he will only confront the witness on a few points, “you have to be prepared to go down 20 paths. Then, depending on what happened on direct, you alter on the fly.” With certain witnesses, the gloves come off. In this case, “the plaintiffs helped us in calling witnesses who were zealots. Their agenda was to demonize the industry,” he says. He was particularly curt and aggressive with one of the plaintiffs’ experts, Dr. Ronald Davis, the director of health promotion and disease prevention at the Henry Ford Health Systems in Detroit and the former director of the federal Office on Smoking and Health. “Dr. Davis was more of an advocate than a witness,” Weber says. “My only goal was to get him to start screaming, to show the jury the guy was a total zealot.” Davis testified that the tobacco companies had not made any substantial effort to enforce their trademarks and stop makers of toy cars from placing cigarette logos on the cars because to do so would cut back on the industry’s intentions to create young smokers. In cross, Weber confronted him with the idea that the companies could not be responsible for others’ acts infringing on the Reynolds copyrights and trademarks by placing these logos on toys. “What research did you do to determine what R.J. Reynolds does when it finds out somebody is slapping its logo on toy cars?” Replied Davis, “My research is having worked in this field for 20 years and seen precious little evidence from R.J. Reynolds and the other companies that they’re taking a serious step to prevent this copyright infringement.” Weber repeated, “What research have you done on R.J. Reynolds specifically to determine, to be fair to this jury, the extent of R.J. Reynolds’ efforts with respect to the protection of its copyrights and trademarks around the world?” Davis: “I open my eyes.” Weber: “That’s it?” “I look around and I see copyright infringement year after year after year,” Davis answered. “Why do you have to do research when it’s staring you in the face?” “He was toast at that point,” says Weber. One March 18, 1999, a Cleveland jury rejected all the plaintiffs’ claims. There was no appeal. Tips: � Put defense actions in the right perspective. � Answer the jurors’ legitimate questions. � Present defense in cross of plaintiffs’ witnesses.

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