John M. Galbraith, a retired Santa Barbara insurance company administrator, smoked from age 19, consuming countless cartons of Camels, Winstons and other brands over a span of five decades. On occasion, he tried but failed to break his three-pack-a-day habit, lawyers for his family say. Even when he was finally stricken with cancer and severe emphysema, his wife, Elayne, caught him slipping off his oxygen mask to drag on a cigarette.
Galbraith is dead now, and his widow and three children have brought a wrongful death lawsuit against R. J. Reynolds Tobacco Co., which made the cigarettes they say killed him. The fault lies with the company, according to the suit, for failing to adequately warn of the potentially lethal consequences of smoking.
Was Physically Addicted
Galbraith was not to blame, the suit says, because he was not fully aware of the risks and was physically addicted to cigarettes.
The suit, expected to be tried in Santa Barbara this fall, is part of a new wave of about 30 product-liability and personal injury actions awaiting trial throughout the country in search of millions of dollars in damages against tobacco companies in behalf of dead or dying smokers and their families.
Twenty years ago, few such actions were being filed--and most of them never reached trial, let alone a favorable verdict for the plaintiff. So far as is known, not one penny has been collected from a tobacco company from such an action, in or out of court.
Law, Attitude Shifts
But a stunning legal turnabout may be in the works in the wake of shifts in the law and in public attitudes toward smoking--along with steadily mounting scientific evidence linking cigarettes and disease. Even one successful suit could eventually have far-reaching impact on the $60-billion-a-year tobacco industry, authorities say.
“Holding tobacco company stock, right now, is risky,” says UCLA law professor Gary T. Schwartz, an expert on product-liability law.
At this stage, sweeping verdicts for plaintiffs are unlikely, in Schwartz’s view. The most promising kind of case, he says, would be built around a severely afflicted smoking victim who became addicted at a young age, before he could make a mature, reasoned decision to assume the risk of smoking. But even a narrow ruling for a plaintiff could gradually be broadened over the years in other cases, Schwartz notes, with potentially “devastating” effects on cigarette manufacturers.
The tobacco industry, fighting back with batteries of lawyers, steadfastly maintains that there is still no conclusively established connection between cigarettes and disease. And in any event, it says, persons who smoke do so freely and thus assume any risk involved. Beyond that, industry spokesmen are saying little about their strategy or the potential impact of the upcoming courtroom battles.
“These claims are really not new--but some attorneys, for one reason or another, think that now’s the time to bring them up again,” says Alan Byrn of the Washington-based Tobacco Institute. “We don’t have any idea what the outcome will be.”
In the past, courts generally took the view that smokers voluntarily assumed the risks of tobacco and that the companies could not be held liable when there was doubt about the connection between smoking and disease.
But over the years, courts throughout the nation have grown steadily more receptive to all kinds of product-liability actions. Under the doctrine of “strict liability,” plaintiffs can collect damages for injuries suffered from a dangerous product even if the manufacturer was not negligent. And in some instances, even a warning by the manufacturer may not be sufficient to deter liability if the warning fails to cite specific risks.
Faulty Product Claims
Tens of thousands of suits are being brought by persons claiming they were injured by a wide range of faulty products--asbestos, drugs, birth-control devices and dangerous toys, among others. Many are winning damage awards or favorable settlements out of court.
Meanwhile, the scientific evidence continues to grow implicating cigarettes as the cause of illness and death from cancer, heart disease and chronic obstructive lung disease such as bronchitis and emphysema.
Last year, Surgeon General C. Everett Koop asserted that cigarette smoking, as the “chief single avoidable cause of death in our society,” was responsible for 350,000 fatalities a year from such maladies.
Dr. William Pollin, director of the National Institute of Drug Abuse, last fall called tobacco a “powerfully addictive drug,” citing new evidence indicating tobacco is more addictive than either alcohol or heroin.
The changing legal climate and mounting medical evidence are combining with new public awareness of the hazards of smoking to make this the ideal time for a new high-powered campaign against tobacco companies, anti-smoking forces believe.
“The tide is changing very, very quickly,” says Richard A. Daynard, professor of law at Northeastern University and co-chairman of the Tobacco Products Liability Project, a newly formed group in Boston providing expert witnesses, legal research and other assistance to plaintiffs suing tobacco companies.
Doubt About Propriety
“There’s a new public consciousness that manufacturers of dangerous products should be held liable for the damage and injuries they cause,” says Daynard. “Along with that, there is new doubt about the propriety of smoking. The notion used to be that smoking was the norm in society. Now it is understood as in some sense pathologic.”
In the Galbraith case, the survivors are being represented by well-known San Francisco attorney Melvin Belli and Paul M. Monzione, a lawyer in the Belli firm. Belli was one of the first to bring a tobacco suit--and lose--back in 1960. Now, at 77, the veteran courtroom lawyer relishes the prospect of continuing a “crusade” against cigarette manufacturers.
“Through their advertising, they use every blandishment there is to get young people hooked on smoking--and then turn around in court and say they’re not liable because the smoker assumed the risk,” says Belli. “The name of their game is hypocrisy. More formally put, they are bleeping liars.”
Belli is handling the Galbraith case without a fee, relying on volunteer expert witnesses to donate time and services and assuming other costs himself. The firm’s share of any award or settlement will go to cancer research.
The suit was filed in 1982, naming Reynolds and a host of other defendants who made, packaged, advertised and sold cigarettes to Galbraith. It came two years after Belli asked a group of workers in hospices for the terminally ill about victims of squamous cell carcinoma at the juncture of the bronchus--a type of lung cancer associated with smoking. A nurse put the lawyer in touch with the Galbraith family.
The suit charges that Reynolds and the other defendants knew or should have known from documented scientific findings that cigarette smoking is “lethal” and leads to cancer. Galbraith was addicted and thus could not freely assume the risk of smoking, the family’s lawyers contend.
In response, attorneys for Reynolds, in court documents, acknowledged the company was “aware” of the controversy over cigarette smoking and lung cancer. But despite millions of dollars of research sponsored by the industry-backed Council for Tobacco Research, along with billions in research by the federal government, “it has not been scientifically established that cigarettes cause cancer,” the lawyers said.
The company is expected to contend that Galbraith’s decision to smoke--and to assume the risk--was his own, freely made choice. The company will probably argue that Galbraith was well-informed and well-educated--he held a master’s degree--and would have been fully aware of the pros and cons of the smoking debate.
In defending themselves in court, attorneys for tobacco companies are likely to question studies showing statistical associations between smoking and disease. They will cite data showing that 90% of all smokers do not get lung cancer and that 15% of those who do get it are nonsmokers.
In response to the charge that smoking is addictive, the companies will probably marshal data showing that 35 million smokers have quit. Company lawyers will also contend that the warnings printed on cigarette packages, combined with volumes of available data about smoking, provide adequate warnings--warnings that hold up despite the millions of dollars the industry spends on advertising.
Along with the California case, other suits are under way in New Jersey, Massachusetts, Tennessee and West Virginia, with actions in Georgia and Texas expected soon, according to the Tobacco Products Liability Project.
In a case in federal District Court in Newark, N.J., the defendant tobacco firms--Liggett Group Inc., Philip Morris and Loews Theaters, the successor to P. Lorillard Inc.--have suffered two significant setbacks in pretrial proceedings. The case was brought by Rose Cipollone and her husband before she died of lung cancer last year at age 58. The woman started smoking at age 16 and for most of her adult life consumed more than a pack of cigarettes a day, according to her attorneys.
Last summer, lawyers for the defendant firms argued that the health warnings on cigarette packs required by the federal government since 1966 protected them from liability. But U.S. District Judge H. Lee Sarokin held that the warnings represented only a legal “minimum"--and that the plaintiffs were free to try to show a jury that the warnings should have gone further in pointing out the risks of smoking. The judge said the plaintiffs could try to prove that the defendants had tried to undermine the warnings with huge advertising campaigns and public statements minimizing the risk of smoking.
Last month, in another significant ruling, Sarokin held that evidence gathered before the trial--including thousands of pages of depositions and company-held documents about the risks of cigarette smoking--could be released publicly. Such disclosure not only could provide considerable insight into what the industry itself may know about smoking and disease but also could prove useful as evidence in other pending cases.
Both rulings are being appealed.
In the meantime, the Tobacco Products Liability Project predicts there will be more than 100 cases filed against cigarette makers by the end of the year.
Successful actions will mean not only that victims and their families would be compensated for their losses but also that the costs of any judgments and awards would be passed on to the consumer in the form of higher prices on cigarettes, Project lawyers say.
Daynard sees a day when the price of a pack of cigarettes will rise to $3 a pack--further discouraging smoking, particularly among youngsters. “The social cost of the product,” he says, “should appear on the price tag.”