Last month, a jury in Gainesville bared its teeth and snapped at R.J. Reynolds with a $34.7 million verdict, finding the company responsible for the throat cancer death of Florida man Tyrone Dixon.[i] The verdict included $9 million in compensatory damages and more than $25.7 million in punitive damages, leaving a colossal chomp mark in Reynolds’ checkbook.[ii]
Mr. Dixon had smoked cigarettes for decades. His family blamed the tobacco corporation for the death, alleging the company “marketed specifically” to Mr. Dixon as a Black American with misleading menthol advertising campaigns and had engaged in fraud and conspiracy in concealing the dangers of smoking.[iii] This article addresses how use of Tyson Mendes methods may have helped the defense connect with the jury in a way that may have prevented this catastrophic result.
Taking Responsibility
The first step to avoid a Nuclear Verdict® is to defuse juror anger by taking responsibility. Distinct from liability and negligence, responsibility shows accountability and concern. Defense attorneys must show the jury the defense cares about what has happened and cares for the plaintiff.
Plaintiffs’ counsel described decades-long advertising campaigns designed to cast doubt on the health risks of menthol cigarettes, portraying them as less hazardous while marketing specifically to Black Americans like Mr. Dixon.[iv] Plaintiffs’ counsel described efforts to victimize Black Americans with false implications that menthol cigarettes were a healthful alternative to regular cigarettes.[v] The thematic arguments were intended to paint a picture of an uncaring, villainous, opportunistic company – the type of argument designed to anger the jury.[vi]
In response, defense counsel stated they would not be defending the conduct of their client, directed the jury’s attention away from the defendant’s actions, and focused their defense on Mr. Dixon’s actions. The defense described how Mr. Dixon smoked despite knowing the dangers of cigarettes and refused to quit smoking.[vii] Defense counsel made statements such as, “Not all smokers want to quit” and “Sometimes, smokers don’t even try to quit. Smokers like Mr. Dixon, who spent years and years and years smoking without even attempting to quit, saying he wanted to quit, or even [taking] any kind of action. He just smoked.”[viii]
Logically, this defense was supported by the evidence. What was missing was an effort to acknowledge responsibility for those marketing campaigns, the health effects, and the addictive nature of the product. The defense could have portrayed the company as having lost its way in previous decades, but now was making concrete efforts to reverse that damage.
The defense should have spent more time acknowledging these facts and accepting responsibility for them. In so doing, it might have defused the jury’s anger at the defendant’s conduct. As a result, the jury may have been more receptive to the main points of the defense.
Personalizing the Corporate Defendant
Humanizing a tobacco company may seem like an uphill battle. After all, the health dangers of smoking are well publicized and documented. However, when defending a large corporation, it is important to remind a jury about the people who comprise an organization, no matter how large, especially when the organization is painted as the villain under the plaintiff’s narrative.
Plaintiffs’ attorneys ensure the jury understands their client on a personal level. Defense attorneys must do the same for their clients. The plaintiff in this case focused on who Mr. Dixon was, his and his family’s pain and suffering, and how it could have been prevented by the defendant. They told the story of Mr. Dixon’s life, and how the marketing and advertising of an addictive product ultimately led to his addiction and death from cancer.
The defense discussed how the times, attitudes, awareness, and laws had changed over the years to curb certain advertising and marketing tactics.[ix] The defense sought to distance itself from the damaging facts, and concentrated their defense on Mr. Dixon’s actions in spite of his knowledge of the dangers of smoking.
Unfortunately, there was little discussion of how the company has helped society. For example, its operations sustained poor, rural communities in North Carolina – including the Black American population – by providing employment through the Depression. The company supported U.S. war efforts during both world wars, at the expense of its own profits.[x]
Over the past few decades, the company implemented concerted corporate efforts to reverse damage done in the past and prevent further harm. The company has curtailed marketing to young people through its “Right Decisions Right Now (RDRN)” underage tobacco prevention program.[xi] The company has committed to environmental sustainability by running its operations on renewable energy and created a state-of-the-art water reclamation plant to reduce water waste. The company has reduced its landfill waste by 96% and transitioned its fleet to hybrid and electric vehicles.[xii] The defense could have acknowledged that these actions cannot erase the harm done in decades past and could have shown the jury how the company has changed its focus and re-examined its place in society – not because it had to by law – but because it wanted to make things better.
Conclusion
Would this approach have resulted in a complete exoneration of the defendant? Probably not, but it may have let the jury see the defendant in a different light. Rather than being swayed by bias, sympathy, prejudice, or emotion, this defense approach may have allowed the jury to focus more on the facts and evidence.
Defense attorneys must remember that ultimately corporations, plaintiffs and their families, lawyers, and jurors must all be seen as people. People have feelings, and feelings matter. Our job is to help the jury see both sides of the argument with fairness, especially when the facts are tragic.
If defense counsel can accomplish this, the jury is more likely to view the defendant in, at the very least, a less negative perspective. The defendant can be seen as a contributing member of society, one with something positive to show, despite being portrayed by the plaintiff as a monolithic villain. Most importantly, this allows the jury to make reasonable decisions premised on facts rather than emotions.
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Sources
[i] Bessent-Dixon v. R.J. Reynolds, 2015-CA-002554.
[ii] Id.
[iii] $34.7M Total Verdict Hits R.J. Reynolds in Retrial Over Florida Smoker’s Throat Cancer Death, Arlin Crisco, CVO (Apr. 17, 2024), https://blog.cvn.com/34.7m-total-verdict-hits-r.j.-reynolds-in-retrial-over-florida-smokers-throat-cancer-death.
[iv] Id.
[v] Id.
[vi] Id.
[vii] Id. at 1:50:00 – 1:52:00
[viii] Id. at 2:03:04-2:30:00
[ix] Id. at 2:14:00 -2:20:00
[x] https://rjreynoldsestate.com/, https://tobacco-img.stanford.edu/wp-content/uploads/2022/04/13161757/RJRbrandhistory-2009.
[xi] Right Decisions Right Now, https://www.rightdecisionsrightnow.com/
[xii] https://rjrt.com/who-we-are/
