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Scenes from the last great tobacco war being waged in a courtroom in Orlando 

Page 7 of 8

The day draws ever closer when Kenny Kerrivan himself must take the stand. Because he can't walk much without gasping for breath, he watches from a scooter beside his attorneys. If it sounds weird to have your weakened condition dissected while you sit by silently, on day seven the trial enters a macabre new phase.

Kenny Kerrivan's doctor, Vikram Shah, takes the stand. After coming to the U.S. from India on a fellowship almost 25 years ago, he stayed and pursued training in pulmonary and critical care specialties. Living in Florida, pulmonologists are in high demand. Given a retiree population full of smokers, he estimates 40 percent of his patients have some sort of lung disease or COPD.

Shah is not easy to understand. His diagnosis for Kerrivan, however, is quite clear. He concludes that the plaintiff's physical condition today is the result of a severe smoking addiction, up to four or five packs a day at various points. London seizes upon a phrase in his report.

"At the very bottom it says, 'Terminal COPD.' What does that mean?" London says.

"More or less he's the same at the end-stage of terminal COPD," Shah responds. "Again, it's more likely from the lung-related disease than anything else. The thing is if he develops certain things, there are so many conditions that could lead [to his death]. He could develop lung cancer ... I would say leave it alone until the last day, things like that. COPD and smoking, if he develops heart attack or stroke, it is easy to understand that; but I would not be surprised if I get a call in the next several days or weeks that he had a massive stroke or heart attack."

In essence, Kerrivan sits listening to his death sentence. There's something more than a little surreal about watching someone describe how another person seated only a few feet away will not only die, but die soon. Yet the plaintiff takes the news in stride, listening intently through a set of headphones – as if tuning in to a broadcast whose ending he already knows.

When Kerrivan takes the stand himself, he speaks in a dese-and-dose Brooklyn accent as pronounced as Bugs Bunny's. In the Florida courtroom, it only makes the details of his smoking history and his life that much more plaintive. He started with Lucky Strikes before moving to Camels.

"Camels was a good, strong cigarette," he says. "Non-filtered, and it gave you a good punch." He switched to Marlboro and then Marlboro Lights as he tried to kick the habit, then Ultra Lights.

Years of attempts to quit didn't help. New Year's resolutions? Failed. Nicotine patches? They left brown spots on his arm and no diminished desire. Hypnosis? "It didn't work on me." Acupuncture?

"That's a joke. Somebody sticking needles all in your ears and stuff? That didn't work at all. By the time I walked outside the acupuncture place and got in my truck, I was smoking again. That lasted about 30 feet." Any sustained attempt was met with severe cravings, irritability and the shakes.

"You get the heebie-jeebies," he says. London asks when he finally quit for good.

"Well, I'll tell you what happened. I caught double walking pneumonia, and I don't know if anybody over here has ever had double walking pneumonia. When you have that, believe me, you do not want a cigarette. As it is, you can't breathe."

Kerrivan says he was told he'd be dead in six months if he didn't quit. Even today, though, he is haunted by dreams where he is smoking.

"The dreams are so real, especially mine," he says. "I'm saying to myself in my dream, 'I can't believe I started smoking again.' What? Am I stupid or something?"

Having heard his doctor's prognosis, London asks, what does he think?

"I'm trying – I'm trying to do everything I can to get another day," he replies. "If I can squeeze another day ... I like when I wake up and there's no dirt in my face."

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