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That didn't last. Kerrivan's attempts to quit may have worsened his habit. What his legal team will have to prove, essentially, is that the tobacco companies robbed him of free will.
On Oct. 7, after a day of jury selection, Erickson calls the jurors into the courtroom. For nearly an hour, he lays out the facts of the case that the parties have agreed upon, and what must be proved in order to find for the plaintiff.
Byrd and his co-counsel Sarah London, from Lieff Cabraser's San Francisco office, call their first witness. He's Neil Grunberg, a professor of clinical psychology and research scientist, and one of the country's foremost experts on addiction. He was also co-author of a 1988 Surgeon General's report on nicotine addiction. Imagine that you're a groundbreaking researcher whose work has earned the respect of peers. That's Grunberg.
In 1994, a former colleague, Jack Henningfield, called Grunberg from Rep. Henry Waxman's office. He was looking at reports stamped "secret," "confidential" and "top secret."
The documents came from the Battelle, a research institute that contracts for the tobacco industry.
"What was shocking in this report is these data were 15 to 20 years before my own research on nicotine and stress, nicotine and body weight, nicotine and feeding, nicotine and chemistry," Grunberg states. "And they were all my findings. ... All of these cool things that I had found in the '80s that I had won all sorts of awards because I was so brilliant had all been done 15 to 20 years before I even knew about it."
For the better part of two days, Grunberg will testify about the powerful hold cigarettes can have over a smoker – and what the cigarette companies knew about it but didn't disclose. That it takes only a half-pack a day to maintain addiction – even less, if the smoker inhales more deeply and puffs more. That every aspect of cigarettes, from the pH balance to the tobacco to the paper to the filter, has been tweaked to maximize the effect of nicotine. That the companies rigorously studied the physical and psychological effects of smoking on teens – or as the companies described them, "pre-smokers."
At one point in the testimony, Grunberg reads from a tobacco scientist in one of the "top secret" reports:
"A cigarette is the perfect type of a perfect pleasure. It is exquisite. And it leaves one unsatisfied. What more can one want? Let us provide this exquisiteness and hope that they, our consumers, continue to remain unsatisfied. All we would want then is a larger bag to carry the money to the bank."
Grunberg testifies that Philip Morris scientists knew their product wouldn't work without the addictive substance nicotine. "A cigarette that does not deliver nicotine cannot satisfy the habituated smoker and cannot lead to habituation," one report concluded, "and would therefore almost certainly fail."
Byrd turns Grunberg's attention to the plaintiff, Kenny Kerrivan. After examining his case, would the expert say Kerrivan was addicted?
"Mr. Kerrivan was heavily addicted to cigarettes for most of his adult life," Grunberg says.
"And how heavy was his addiction, in your opinion?"
"He was a highly addicted or heavily addicted smoker by all indications of behaviors, including the amount he smoked, the brands he smoked, his changed behavior with different nicotine-delivery cigarettes, as well as the withdrawal and relapse that he experienced multiple times."
"And do you have an opinion as to whether his addiction interfered with his free choice or his delay in stopping smoking cigarettes?"
"And what is that?"
"That because he was a heavily addicted cigarette smoker, that he essentially had no free choice, and that the addiction interfered with any free choice or rational decision-making with regard to smoking behavior."
People can quit smoking, Grunberg says. It happens all the time. But not everyone can do it – and until he faced death, neither could Kenny Kerrivan.
Finally, Byrd asks Grunberg to close the loop. In 1988, in response to his work on the Surgeon General's report, the cigarette companies' PR wing, the Tobacco Institute, said, "Clearly the report issued by the surgeon general's office today is politically rather than scientifically motivated." The institute called Grunberg's work on addiction – confirmed by their own scientists decades before – "irresponsible" and a "scare tactic."
Byrd then pulls up a new document from 1980 on the screen.
"This is from Mr. Knopick, from the Tobacco Institute." Byrd says.