The Multinational Monitor

July/August 1987 - VOLUME 8 - NUMBERS 7 & 8

T H E   T O B A C C O   T R A P

A Smoking Gun

Tobacco on Trial

by David Gidmark

For cigarette manufacturers, fighting the more than 125 suits pending against them in federal and state courts is a life-and-death struggle. With smoking related diseases killing more than a quarter million Americans each year, one successful suit could spur a tidal wave of litigation. Two could conceivably break the industry.

"It goes without saying that the industry has an enormous amount at stake in defending these suits," notes the Tobacco Reporter, "including its credibility and survival."

The tobacco industry has only to look at other industries to see examples of how quickly their legal liability could grow. In 1982, the Manville Corporation filed for Chapter 11 Protection when faced with 16,500 lawsuits over asbestos-induced lung disease. This year, Texaco filed for bankruptcy because of one jury verdict in Texas.

To date, products liability litigation against the tobacco industry has been uniformly unsuccessful. The first wave of litigation against the tobacco companies began in the 1950s, about the time Reader's Digest and other publications first publicized the link between cigarette smoking and lung cancer. Although many suits were filed, only 11 came to trial and these lawsuits petered out in the late 1960s and early 1970s. Faced with the overpowering legal might of the tobacco industry - tobacco legal teams may be the most imposing in corporate America - and with lack of organization on the part of the plainliffs' bar, potential plaintiffs and their attorneys came to believe that getting a judgment against a tobacco company was an impossible task.

But medical evidence against tobacco continued to mount and tort law evolved rapidly. Manufacturers were held to a standard of strict liability for the harm that their products caused. Judgments for plaintiffs grew in frequency and monetary value.

During the 1970s, the anti-tobacco climate also grew. Nonsmoking regulations proliferated and, with them, attitudes toward tobacco changed.

A second wave of lawsuits hit the tobacco manufacturers in the 1980s. The first case among these was Browner v. RJ. Reynolds, filed in 1981.

In Browner, the industry clearly spelled out its two-pronged, albeit contradictory, legal defense. R.J. Reynolds first argued that "smoking has not been scientifically established as the cause of any human disease." In a seeming reversal, the industry then argued that the plaintiff assumed any risk by choosing to smoke. The tobacco industry argued that because warnings on cigarette packages have been required since 1966, the plaintiff, not the manufacturer, was responsible for problems arising from the use of the product.

In the closely-watched Cipollone v. Liggett Group, the industry asserted that the warning mandated by the Federal Cigarette Labeling and Advertising Act pre-empted personal injury suits. But Federal District Court Judge H. Lee Sarokin of New Jersey ruled that warning labels on cigarette packages did not insulate the tobacco companies from lawsuits. The "imposition of criminal liability under the Act, as well as thepaymentof damages, are both possible," he said. "[C)ompcnsation for individuals as a result of an injury caused by particular products is not only a right that ought to be abridged only where Congress clearly intended to do so... but also one that does not necessarily interfere with governmental regulation of such products."

Judge Sarokin then said, in a phrase widely quoted in the media: "Legal minimums were never intended to supplant moral maximums." Attorneys who were contemplating litigation against the tobacco industn´┐Ż had only to look to Judge Sarokin's opinion for an intellectual go-ahead.

Two second-wave cases went to trial in November and December of 1985. It was then that the tobacco industry met its most dangerous adversary - publicity.

Calbraith v. RJ. Reynolds went to trial in Santa Barbara, California in November; Rovsdon v. R.J. Reynolds in Knoxville, Tennessee a few weeks later. From the point of view of plaintiffs both cases seemed rather weak and like poor tests of new theories of tobacco liability. But they generated enormous publicity. The national media had discovered tobacco litigation. It was covered on "Nightline," "Meet the Press" and "Today," as well as in the print media. The court clerk in Santa Barbara received inquiries about Calbraith from the CBC in Toronto and the BBC in London. The Wall Street Journal reported that, in the three weeks after the end of the Galbraith trial, the number of lawsuits against the company rose 35 percent.

While the Roysdon jury seemed conservative, the Galbraith jurors were less so. Although the evidence was weak, three of the 12 sided with the plaintiff. Several others indicated they would have found for the plaintiff had the evidence been stronger. The jury forewoman said she believed that one day a tobacco plaintiff would win a judgment. Judge Bruce Dodds, trial judge in Galbraith, expressed similar sentiments. In the future, noted Dodds, the key to tobacco cases will be furnishing credible evidence that massive advertising of tobacco products negates the warnings on the packages.

The formation of the Tobacco Products Liability Project at Northeastern University School of Law in Boston in late 1984 and the Tobacco Litigation Sub-Group XV of the Association of Trial Lawyers of America in 1985, whose goals are to coordinate the efforts of the plaintiff attorneys, added to the momentum.

Then in April 1986 the plaintiff attorneys were dealt a blow when the U.S. Court of Appeals for the Third Circuit ruled that warnings effectively protected the manufacturers against products liability suits. In ruling on a pre-emption appeal in the Cipollone case, the court said that subjecting tobacco manufacturers to tort litigation constituted a requirement beyond that provided for in the warning legislation.

A few months after the Third Circuit decision, however, the Washington Post and Lawyers Alert reported that Circuit Judge James Hunter III, who wrote the opinion, was a former attorney for American Tobacco and represented the company in products liability litigation. Although his former firm still represents the company, a rehearing on the matter was denied.

In June 1986, in another defeat for plaintiff attorneys, a federal jury in Oklahoma City ruled 6-0 that 19-year-old Sean Marsee's death from tongue cancer did not result from his seven-year use of Copenhagen snuff.

George Braly and Dania Deschamps-Braly, husband and wife attorney team for the plaintiff in Marsee, were up against ferocious opposition. U.S. Tobacco spent an estimated $15 million defending the case and doing related lobbying. The company informed the trial judge that it had spent, at one point, $3 million on document production alone.

During discovery, George Braly obtained permission to examine U.S. Tobacco Company documents at the offices of the company's local counsel in Oklahoma City. Braly had to get a court order to keep defense lawyers from looking over his shoulder while he was examining documents in their offices. When the order came through, the firm knocked down a wall in the office and put in a window.

Cigarette companies are no less determined. At one circuit court oral argument, 55 tobacco attorneys were present. The leader of one of the tobacco company defense teams admitted that this was for on-the-job training.

Although getting a judgement against a tobacco company may be a formidable task, the first successful suit may spur dozens more.

Three promising cases are scheduled to come to trial in the fall of 1987. Horton v. American Tobacco is set for trial in Lexington, Mississippi on August 31. Nathan Horton died in January at the age of fifty. An autopsy determined that he died of lung cancer. In an important pre trial development, a former chief executive officer for American Tobacco said that the company did not assert that a consumer was negligent in starting to use, or in continuing to use, an American Tobacco product. Despite the fact that skilled attorneys from four firms are representing the plaintiff in this case, the odds still favor the tobacco company - but the odds are not insurmountable.

On September 8, Caballero v. Philip Morris will go to trial in Duval County, a poor, mostly Hispanic area in southern Texas. The plaintiff suffers from a "clean" (apparently few other factors that might be considered contributing) case of emphysema which he alleges was caused by long use of Philip Morris' products. There is again a consortium of attorneys representing the plaintiff.

Mississippi and Texas are especially interesting in the drama of tobacco litigation, for each is a comparative fault jurisdiction. That means that each attorney team needs to prove that the manufacturer was only partially at fault to get a judgment, despite the fact that a plaintiff has admitted partial fault. The public relations effect of even a partial victory for one of these plaintiffs would be monumental.

Filed in late 1983, Cipollone v. Liggett Group is perhaps the most important of the tobacco cases for two reasons. Judge Sarokin's opinion that tort liability was not pre-empted by the Federal Cigarette Labeling and Advertising Act had an impact far beyond Cipollone. The other important aspect of the Cipollone case is that the plaintiff's attorney team has been viewed as the best-prepared and the best-financed.

Although the plaintiff is handicapped because the Third Circuit opinion of April 1986 eliminated several theories of recovery, grounds for liability do remain. Judge Sarokin is still scheduled to hear the case, although the defense has been trying to get him recused because of alleged prejudice toward the plaintiff. The case goes to trial on September 15 of this year. The tobacco industry suggested that when the two late 1985 trials went for the defendants, 'attorneys would realize the futility of their battle and litigation against the tobacco manufacturers would cease. But the number of lawsuits has increased. And three of the strongest cases to date are set to go to trial soon.

In April of this year, Surgeon General C. Everett Koop gave moral credence to the plaintiff lawyers. Koop applauded the products liability suits against the tobacco industry for their public health value. Despite the lack of a verdict for a plaintiff in the litigation, and contrary to the hopes of the tobacco industry, the field promises to get much more exciting.

David Gidmark will soon be joining the Tobacco Products Liability Project at Northeastern University Law School.

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