Kenny Byrd is pissed.
For almost three years, the Nashville-based attorney has been hip-deep in cigarette litigation. He's representing a seriously ill plaintiff who measures time by each labored breath, and he's facing adversaries with virtually unlimited resources and every incentive in the world to stall. He's gotten this far, 700 miles from home in an Orlando federal courtroom, on his skill cutting through the rhetoric of corporate obfuscation.
Now, a week and a half into an almost three-week federal trial in Orlando in October, the biggest cigarette companies in the U.S. are attempting to shut him up.
As his case, Kerrivan v. R.J. Reynolds et al., hurtles toward the jury, lawyers for Philip Morris and Reynolds have filed a motion to keep Byrd from using phrases he used in the closing arguments of other tobacco trials. What the defendants don't want is for Byrd, in full-on preacher mode, to characterize them the way he did the month before in Jacksonville. Standing before a jury, Byrd had laid a veritable death toll at the tobacco companies' feet.
"They have killed grandmothers and grandfathers," Byrd told the jurors. "They have killed aunts and uncles, mommies and daddies, they have killed sisters and brothers."
That wind-up preceded a $27 million verdict. When that happens, Big Tobacco pays attention. And now, after days of testimony about how smoking is addictive and the defendants hid that fact for years, they're trying to cut him off before he can get started. They've filed a nine-page motion without conferring with Byrd or the judge – a no-no in this district of federal court.
"First, I'm honored that they think there's things that I have said in other cases that have been so effective that they need to file a motion to get them precluded," Byrd says, his voice taking on a little more edge. One hand's on his hip, the other grips the podium. "They're bringing up primarily a case that I won, frankly, a month ago."
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