Lawsuit Pits Dead Smoker’s Family Against Tobacco Firm

On the day of the American Cancer Society’s Great American Smokeout, attorneys made their opening statements in a far-reaching trial to determine whether R. J. Reynolds Tobacco Co. is liable for the lung cancer death of a man who smoked the firm’s cigarettes.

But the trial, which is being watched closely by America’s $60-billion-a-year tobacco industry, was then recessed while an appellate court considers whether material from the U.S. surgeon general’s report on cigarette smoking should be included in the testimony.

San Francisco attorney Melvin Belli, who represents the family of John Galbraith, a Santa Barbara man who died three years ago of lung cancer and other ailments, told the jury that he will show a direct link between smoking and lung cancer and that Galbraith was addicted to cigarettes.

“The man never should have been smoking, and the evidence will be that he never was adequately warned,” Belli said. “He started smoking way back at 15, when there were no warnings on packages. . . . Then he was hooked.”

‘Chose to Smoke’

But Los Angeles attorney Thomas Workman, who represents R. J. Reynolds, cast the case in different terms. Galbraith “smoked because he chose to smoke and he really enjoyed smoking,” Workman said. “Freedom of choice and personal responsibility are the central issues in this case.”

The state Court of Appeal in Ventura entered the case later in the day when it granted a stay requested by Belli based on a ruling by the trial judge, Superior Court Judge Bruce Dodds, that restricts Belli’s use of the surgeon general’s report. Dodds ruled that Belli could mention the report in his opening statement but not read from it.

The result, Belli said, was “the lousiest opening statement I ever made.”

The defendants in the suit are responding to Belli’s motion and a decision by the appeals court is expected by Monday.

The outcome of the suit could have a far-reaching impact on the tobacco industry. It is the first of about 35 suits against Reynolds awaiting trial around the country. At stake are millions of dollars in damages on behalf of dead or dying smokers and their families.

No money has yet been collected from a tobacco company from such an action, in or out of court. But even one successful suit could trigger billions of dollars in claims against tobacco companies and pave the way for liability suits against producers of a variety of products that are linked to health problems.

In another development Thursday, Dodds, a nonsmoker who does not allow smoking in his courtroom or chambers, announced that Belli had dismissed as defendants two Isla Vista markets where Galbraith bought cigarettes. Belli said that after assessing the jury over the last few days he decided he did not want the case “diluted” by local sympathy.

Because of the dismissals, Reynolds attorneys have the option of seeking a transfer of the case to federal court. Dodds asked Reynolds lawyers to decide by Monday whether they wish a transfer, but said he is prepared to recess the case for 30 days until they decide.

National Smokeout Day

The case drew more than 100 spectators and reporters who packed the courtroom and hallway on the day of the Smokeout, in which smokers are encouraged to abstain for 24 hours.

Belli and Paul Monzione, a lawyer in the Belli firm, represent the family of Galbraith, a retired Santa Barbara insurance company administrator who died at 69 after more than 50 years of smoking. Even after he was suffering from severe emphysema and lung cancer, Belli said, his wife occasionally caught him removing oxygen tubes from his nose to sneak a smoke.

Galbraith smoked Winston, Camel and Salem brand cigarettes, all of which are produced by R. J. Reynolds, a North Carolina-based firm.

Reynolds, a diversified company that also markets food products, liquor and soft drinks, is the nation’s No. 2-ranking seller of cigarettes. In 1984, annual tobacco sales totaled about $5 billion, more than a third of the company’s total sales.

The attorneys for the two sides are a sharp contrast in styles. Belli, a flamboyant personal-injury lawyer nicknamed “the king of torts,” has a shock of white hair and wore black snakeskin cowboy boots, a stylish double-breasted suit with a red silk handkerchief and large round eyeglasses. He is a nonsmoker. Opposite him, Workman, who puffed on Camel Lights during recesses and conferred with his team of corporate attorneys, wore a conservative business suit and addressed the judge and jury with polite earnestness.

Belli told the jury, as Galbraith’s wife and two of her three children sat in the front row, that leading medical experts he will call as witnesses will show “scientifically that cancer is caused, among other things, by smoking.”

Even today’s warnings on packages are “watered down by other communication (including advertising) by R. J. Reynolds.” Belli said almost every ailment Galbraith suffered from was either caused or “aggravated and exacerbated” by smoking.

Galbraith was portrayed by Workman as man with a disastrous heath history, who had suffered from tuberculosis as a young man and later was hospitalized for a spinal break suffered in an auto accident, for removal of part of his stomach because of an ulcer and for heart and lung problems. Galbraith also was portrayed by Workman as an alcoholic who also drank up to 20 cups of coffee a day and liked junk food.

Workman said 35 million Americans have already quit smoking, which proves it is not addictive. Galbraith smoked, not because he was addicted, Workman said, but because he enjoyed cigarettes. And if there were dangers, Galbraith should have known them because he was well-educated and well-read, he said.

Belli, 77, was one of the first attorneys to bring a tobacco-liability suit to trial; he lost the case in 1960. But he said that evidence linking cigarette smoking and disease has been steadily mounting.

For example, last year Surgeon General C. Everett Koop asserted that cigarette smoking was the “chief single avoidable cause of death in our society” and was responsible for 350,000 fatalities a year.

In addition, over the years, courts throughout the country have grown steadily more receptive to all kinds of product-liability actions.

Belli filed the suit after he asked a group of workers in hospices about victims of a type of lung cancer associated with smoking. A nurse put him in touch with the Galbraith family. Belli is relying on expert witnesses who have donated their time. He said he will donate his share of any award to cancer research.

During three days of jury selection, the attorneys for both sides asked prospective jurors numerous smoking-related questions. Workman, of the Los Angeles law firm of Lawler, Felix & Hall, asked jurors whether they believed that cigarettes cause cancer and if the government should outlaw smoking. Belli, who has claimed that cigarettes can be as addictive as heroin, asked their opinions about addiction.

“The jury selection in this case was unique because it was about a subject that almost everyone has an opinion about,” said Monzione of the Belli firm. “In many personal-injury cases, for example an auto accident, most jurors don’t come in with any strong feelings or preconceived notions. But smoking is something everyone feels strongly about.”

Of the 16 jurors (four are alternates) two are smokers. Five of the 14 nonsmokers are ex-smokers.