Excerpts: Plaintiff's oral arguments in Price v. Phillip Morris appeal

The Madison County Record Nov. 11, 2004, 2:37am

Stephen Swedlow, plaintiff's attorney:

"The first fact that amazed me when I started working on this case is that the tobacco in the Marlboro Lights and a regular Marlboro is the same tobacco. The only difference between the products as Mr. Cox identified, are the holes in the filter. That’s it. And the holes in the filter, it’s called filter ventilation, the level of ventilation is what changes the burn counts and causes the tar to be more toxic. But the tobacco would be the exact same tobacco.

"The fact that the tobacco is the same, that Phillip Morris designed these cigarettes to deliver the same tar and nicotine and that Phillip Morris measured 30 years ago, the fact that it does in fact deliver the same, should end the inquiry. Phillip Morris promised on every package lower tar and nicotine and intended that to be a lie at the time and measured it and determined that it was a lie for the entire country.

"There's one survey in the record that asks people essentially what does 'light' mean. And 80% of the respondents, excuse me, 75% of the respondents in the survey said that light means safer. And what this court may or may not be aware of, historically, but what it’s proven by Phillip Morris’s own doctors that the entire concept of a light cigarette, the entire market of a light cigarette was created as something that was better for smokers. It was created in response to the concern of smoking and health and it was the solution to the problem that people might quit smoking.

"This was the product that people can switch to in order to reduce their harm from smoking. The reason why lights' promise of safety is implicit rather than explicit is during the entire period the class, up until 1998, Phillip Morris and the rest of the tobacco industry, couldn’t admit that cigarettes caused any disease. So the cigarette couldn’t be called Marlboro Safer or Marlboro Less Harmful because that would, that would effectively admit that the cigarettes were harmful in the first place.

"Mr. Thompson’s testimony here today which is not part of the record, that people smoked differently when they’re stressed, they smoke differently when they’re out at a bar, that’s not testimony of record, and that’s irrelevant for whether compensation is complete or not.

"The public health community was tricked right along with the public. If they knew that the product was designed not to deliver less tar and nicotine, it wouldn’t have been recommended as a harm-reducing product. So if everybody knew then the Surgeon General wouldn’t feel quilty today and feel obligated to come into the courtroom and testify in this trial that he was misled by the tobacco industry and specifically by Phillip Morris.

"Phillip Morris predicted in one of its internal documents that, 'I bet the first company to produce a product claiming lower tar and nicotine will take the market.' Well, that’s exactly what Marlboro Lights has done. It is the single largest selling cigarette product in this country. And lights' cigarettes as a segment of the market representing 90% of the market, because when smokers who are faced with the health concerns have the choice between a regular cigarette and a cigarette that promises less of the bad stuff and that’s what tar and nicotine is, they will choose the cigarette with less of the bad stuff.

Joseph Power, plaintiff's attorney:

"The American Medical Association, the American Lung Association, American Cancer Association, the Illinois State Medical Society, all in support of the judgment...has suggested (this is a) public health issue. In addition, the AARP and trial lawyers for public justice are in support of this case.

"Surgeon General...testified in the record of this case, had he known what he knows now and what he learned after 1999 he would never have recommended that people switch from the regular cigarettes to low tar cigarettes if they could not quit. And that’s his testimony on this record. Unfortunately, the doctors were wrong and their patients paid the price.

"There were doctors who also testified in the record in this case that they too were recommending up until 2001 to their patients that didn’t quit, clearly they wanted to quit, but if you couldn’t quit switch to low tar light cigarettes.

"What they did is they (created) a laboratory in Cologne, Germany called and that’s where most of their testing was done. Unbeknownst to any of the public, the Surgeon Generals, the FTC, the smokers, all those testings, all were done in Germany.

"After...the court compelled documents...showing how reprehensible the conduct was of Phillip Morris deliberately hiding this information from the American public while they hooked new smokers including our children. In the end, this record will reflect year in and year out 440,000 people die from cigarette smoking. That is more Americans, more deaths per year from cigarette smoking than all American soldiers killed in World War II.

"This shows, this shows their conduct, this goes to the issue of why this judge in this record decided this way. Their conduct is an issue in this case in respect to punitive damages. It, it killed more human soldiers, more, it killed more people per year than all the Union soldiers that were killed in the Civil War. The defense in this case, and this is, all due respect to the defense counsel. because these are outstanding lawyers, that is an outstanding firm.

"The CEOs and president of Phillip Morris during this class period, each one of them testified that this was intended to represent and they knew that it represented to the consumer a healthier, a better cigarette. And that’s the testimony in this record, the CEOs of their company said that the consumers perceive this as being safer and healthier for them."

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