Top Defense Verdict: Pooshs v. Altria Group Inc.

Attorneys representing the tobacco industry struck a major victory when they convinced a jury that a woman's lung cancer did not bear many of the usual hallmarks associated with smoking. Nikki Pooshs alleged that misleading statements by Phillip Morris International Inc. and RJ Reynolds Tobacco Co. eventually led her to contract lung cancer, but the jury found that the connection could not be proven.

"There was a lot of work in the years leading up to trial," said Steven N. Geise, the lead attorney for RJ Reynolds. "Judge [Phyllis J.] Hamilton spent so much time on evidentiary issues that a number of issues were decided before we got to trial."

Geise and his team were able to rule out testimony from an epidemiologist the plaintiffs wanted to hear from at trial.

He said containing the scope of the trial was critical, especially when litigating in an unfriendly jurisdiction for his client.

"In the Bay Area, I don't think a tobacco company is a very popular client," he said. "But we were able to focus the jury on the issues they were going to decide and it wasn't a global examination of the tobacco industry."

The defense team was also able to defeat an affirmative fraud claim before trial, convincing Hamilton that the plaintiff couldn't identify specific fraudulent statements made by the tobacco companies that caused her to smoke when she otherwise wouldn't have.

Pike	Geise

Pamela J. Yates, who represented Phillip Morris, led the examination of a key defense witness at trial and cross examined all of the plaintiff's witnesses.

"We called a pulmonologist that had never seen this kind of lung cancer in smokers, but had seen it in a handful of nonsmokers."

Plaintiff's attorney Richard M. Grant of Brayton Purcell LLP vowed to continue the fight at the 9th Circuit.

He said Hamilton was reversed on multiple motions leading up to trial and he expects the 9th to side against her once again.

Fellow firm partner Jason M. Rose did all of the trial work but Grant is leading the appeal.

Grant said the exclusion of testimony from the epidemiologist was improper and put the jury in an impossible position. He said the appeal also challenges the validity of the jury instructions. He said the case is on hold for the moment while another case he's handling, which touches on the same jury instructions question, proceeds at the California Supreme Court.

? Joshua Sebold