Curb on Suing Tobacco Companies Is Let Stand by Court

In a victory for the tobacco industry, the Supreme Court on Monday let stand an appeals court ruling which said that the warning labels on cigarette packages shield the cigarette makers from some smokers’ health liability suits.

But lawyers on both sides played down the impact of the high court’s action in this first test case, noting that the justices might consider the issue later after more lower courts have ruled on it. Three other appeals are pending.

No Successful Suits

In recent years, lawyers representing a number of smokers who contracted lung cancer have sued tobacco firms for damages but none have prevailed. Some courts have concluded that the lawyers failed to prove that cigarettes caused the cancer, and other cases have been dismissed on procedural grounds. The Supreme Court has yet to hear such a case.

On Monday, the justices, without comment, let stand a ruling in the case of Rose Cipollone, a New Jersey woman who died of cancer in 1984 (Cipollone vs. Liggett Group, 86-563). She smoked for more than 40 years, and her husband charged that three tobacco firms were liable in her death because they had not adequately warned her that their products were hazardous.

In April, the U.S. 3rd Circuit Court of Appeals in Philadelphia ruled for the companies, concluding that they could not be sued on those grounds because, in accordance with a 1966 federal law, their cigarette packages carried the warning label, “Caution: Cigarette Smoking May Be Hazardous to Your Health.”

Lawyer Not Surprised

“We’re obviously very disappointed, but I can’t say I’m surprised,” Marc Edell, a lawyer for Cipollone, said of Monday’s high court action. He said he hopes that the Supreme Court will consider the issue after lower courts have ruled in the three pending cases.

“The Supreme Court likes the issue to mature before it hears a case,” he said. “In the meantime, the 3rd Circuit has given the tobacco industry immunity for their intentional acts of wrongdoing.”

Cipollone’s attorney said he will now try to prove that the cigarette companies should be held liable on other grounds--that Mrs. Cipollone was “addicted” to tobacco decades before the warning labels appeared.

Significance Discounted

Kathryn Oberly, a Washington attorney representing the tobacco firms, said that she believes the 3rd Circuit ruling was correct but that she does not view Monday’s high court order as very important.

“We pointed out to the court that this question is pending in several other circuits, and it’s their custom to wait to see if a conflict develops,” she said.

Meanwhile, in other actions, the court:

--Agreed to decide when a military contractor may be held liable for damages in accidents involving servicemen. David Boyle, a Marine, drowned after a Navy Sikorsky helicopter crashed into the ocean off Virginia Beach, Va., in 1983. Under federal law, the military is immune from liability lawsuits. But a District Court awarded Boyle’s family $725,000 in damages against a contractor because it found that the helicopter’s escape hatch was defective. In May, an appeals court in Richmond overturned that verdict because it said the Navy had approved the design of the hatch. The justices will review that ruling (Boyle vs. United Technologies Corp., 86-492).

--Let stand a California Bar Assn. ruling that prohibits lawyers from using testimonials from clients, even when the endorsement has been found to be “true” and “not misleading.” David A. Grey, a Los Angeles lawyer, paid for a radio ad in 1981 in which a former client said that, if she “had any legal problem, car accident or anything, I would definitely go back to Grey and Oring.”

Bar Ordered Reprimand

The state bar concluded that this violated its rules of professional conduct and ordered Grey reprimanded. He contended that his free speech had been abridged, but the justices rejected the appeal in the case (Grey vs. State Bar of California, 86-791).

--Agreed to decide whether citizens may sue polluters for past violations of the Clean Water Act. Gwaltney of Smithfield Ltd., a Virginia meatpacker, was found to have polluted a river flowing into Chesapeake Bay, but in 1984 the state water control board said that the firm had cleaned up its operation.

After this decision, the Chesapeake Bay Foundation filed suit, seeking penalties for past violations, and an appeals court upheld a $1.28-million judgment against the company. Gwaltney appealed on the grounds that its violations were in the past and that private parties may not intervene in such cases. The justices agreed to hear the firm’s appeal (Gwaltney vs. Chesapeake Bay Foundation, 86-473).