Support local journalism. Join the Orlando Weekly Press Club.

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

Page 8 of 8

Davis is up next. His body language is different from other cross-examinations, more adversarial. Thanks to a quirk in procedure, Davis ends up playing video from Kerrivan's original deposition while the plaintiff is still on the stand, and the courtroom turns into Kerrivan v. Kerrivan as the defense chips into his credibility. Was his boss at the vinyl siding job joking about telling him not to smoke? One Kerrivan says yes, one says no. Did his mother tell him she had emphysema? One says no, one says maybe. Did he really need a prescription for the nicotine patch? One says no, one says yes.

Davis drills down on the prevalence of warnings, both published and in Kerrivan's life. Why didn't he quit with all of the material that was out there? What comes out, though, is that Kerrivan – a high-school dropout who doesn't read above a fourth-grade level – never understood what the cigarette-pack warnings meant, other than they were bad. Does this affect the jury? With the trial winding down, Davis will know soon enough.

The balance of the trial consists of video depositions of Reynolds and Philip Morris executives and one single defense witness – a pulmonologist who testifies that if Kerrivan had quit smoking earlier, he could have undone his march to end-stage COPD. The plaintiff's case took just over seven courtroom days to present. The defense rests after just 36 minutes.

Closing arguments last four hours. They're mostly a question of addiction: Was Kenny Kerrivan unable to quit smoking? Or did he have the knowledge and ability to quit, as millions of others did? That's what the jury must decide. Everything flows from that issue: choice.

As he finishes, Byrd raises the issue of punitive damages, should the jury find for his client.

"I told you at the beginning that we would – I'd show you a conspiracy, the likes of which we have never seen," he says. "And I want to be really clear. You've heard the figures. The Surgeon General report, it's in evidence; but, you know, the latest numbers are 480,000 deaths a year, premature deaths. More than 20 million people have died prematurely. There's that one graph that says if it keeps up, 5 and a half million kids today will die from cigarette diseases. OK?

"But here's the deal. That line right there" – he points to a chart on the screen – "that's not something like an accounting profit line, you know. Those are people. Those are grandfathers and grandmothers. They're aunts. They're uncles. They're mommies. They're daddies. They're sisters. They're brothers. And we showed you the evidence. Make no mistake. The replacement smokers are kids, 90 percent. 90 percent of their business comes from kids starting to smoke."

The defense responds.

"The starting point for your determination, the starting point of punitive damages, is to look at the conduct that caused harm to Mr. Kerrivan," Davis says. "Mr. Kerrivan did not rely on anything from the tobacco companies to make his decision to start smoking or to continue smoking. I respectfully suggest to you there is no clear and convincing evidence in this case warranting the imposition of punitive damages on Philip Morris or R.J. Reynolds. And I respectfully suggest that the answer to that question is no."

In the end, the jury deliberates for approximately seven hours over two days before returning a verdict. Kenny Kerrivan should be a member of the Engle class and is entitled to damages. They award $15.8 million – almost $6 million more than Byrd had asked for in his closing. Two days later, after a short second phase trial, they will add a whopping $25.3 million more in punitive damages. On Jan. 23, the defense filed a motion seeking a new trial because of the size of the award, and Kenny Byrd is back in Orlando to try another tobacco case.

Co-counsel Sarah London was made a partner in Lieff Cabraser's San Francisco office at the first of the year. She and John Spragens won a $6 million verdict in an Engle case in Jacksonville in late January, too.

Stan Davis tried one more case for Philip Morris, against Byrd in December. He won, and retired.

The $41.1 million is the largest judgment ever in a federal Engle trial. Because of the length of the appeals process, it's unlikely that Kerrivan will ever see a cent.

UPDATE: On Feb. 25, the day this issue was released, three biggest tobacco companies agreed to settle the pending lawsuits in Florida. Reynolds and Altria agreed to pay $42.5 million to resolve the cases; Lorillard will pay $15 million. According to a judge's order, the parties have 90 days to determine a distribution agreement.

Tags: ,

We welcome readers to submit letters regarding articles and content in Orlando Weekly. Letters should be a minimum of 150 words, refer to content that has appeared on Orlando Weekly, and must include the writer's full name, address, and phone number for verification purposes. No attachments will be considered. Writers of letters selected for publication will be notified via email. Letters may be edited and shortened for space.

Email us at

Support Local Journalism.
Join the Orlando Weekly Press Club

Local journalism is information. Information is power. And we believe everyone deserves access to accurate independent coverage of their community and state. Our readers helped us continue this coverage in 2020, and we are so grateful for the support.

Help us keep this coverage going in 2021. Whether it's a one-time acknowledgement of this article or an ongoing membership pledge, your support goes to local-based reporting from our small but mighty team.

Join the Orlando Weekly Press Club for as little as $5 a month.


Never miss a beat

Sign Up Now

Subscribe now to get the latest news delivered right to your inbox.

Read the Digital Print Issue

October 13, 2021

View more issues


© 2021 Orlando Weekly

Website powered by Foundation