Trial Opens for Tobacco Firm Accused in Cancer Death of 30-Year Smoker

The U.S. tobacco industry, which has fended off a barrage of wrongful death and other product liability lawsuits without losing a case, put its perfect record on the line Tuesday in this rural Mississippi town.

In a case that could be the industry’s stiffest liability challenge ever, a state court jury began hearing a suit filed against American Tobacco Co. by survivors of a lung cancer victim who smoked its Pall Mall brand.

The cancer victim was Nathan H. Horton, a carpenter and construction supervisor who died last January at age 50 after smoking up to two packs of Pall Malls a day for more than 30 years. His widow, Ella Horton, and his children continued the lawsuit he started against a local tobacco distributor and American Tobacco, which they claim breached an implied warranty that its cigarettes were fit for human consumption, and neglected its duty to test its products once smoking and cancer were linked.

Industry’s Image Marred

The Horton case, being tried in the nearly century-old courthouse that dominates this community of 2,600, is the first cigarette case to go to trial in more than two years. A second major trial is scheduled to begin later this month in federal district court in New Jersey, where Liggett & Myers, Philip Morris, and Loews Corp.’s Lorillard tobacco unit are defendants in a lawsuit filed by the husband of Rose Cipollone, a longtime smoker who died of lung cancer at 58. The Cipollone case is regarded as the weaker of the two, due to adverse pretrial rulings, but the Cipollone lawyers have amassed thousands of internal documents for use in the trial.

Even if the cigarette makers keep winning their legal battles, the trials likely will inflict further damage on the industry’s flagging public image. The plaintiffs’ lawyers are focusing on industry advertising and business practices and the sensitive issue of additives and pesticides in cigarette tobacco.

Charges of Tainted Tobacco

In opening remarks to the jury Tuesday, Don Barrett, one of the team of Horton lawyers, said the plaintiffs will prove that during the first 20 years that Nathan Horton smoked Pall Malls, the cigarettes’ smoke was tainted by the now-banned insecticide DDT.

Barrett also said cigarette smoke generally contains radioactive polonium 210 from the use of high-phosphate fertilizers on tobacco plants. He told the jury it will also hear from an expert witness whose microscopic analysis of a Pall Mall cigarette turned up millions of “fibers and particles similar to asbestos.”

“Yet they want you to say and think that Nathan Horton knew and accepted all these risks,” Barrett said.

“They (American executives) have known what they were doing. They lied about it, covered it up, for over 30 years . . . to keep that pipeline of money flowing to them,” Barrett said.

Horton “was to some extent negligent . . . for smoking Pall Mall cigarettes,” Barrett told the jury.

“We accept our responsibility. The American Tobacco Co. refuses to accept theirs, and that’s what this lawsuit is about.”

But James Upshaw, the attorney for American, said the case is about “personal responsibility.”

Upshaw described Horton as “a strong-willed, determined, strong-minded man” who was in “total and complete control of his life.” He chose to smoke for the pleasure he derived, despite warnings from family and friends, beginning with his high school football coach, Upshaw said.

Upshaw also said American will show that the type of lung cancer suffered by Horton was not, as plaintiffs contend, adenocarcinoma--which is usually associated with smoking--but rather a rare type known as giant cell carcinoma.

If anyone knows what causes giant cell carcinoma, said Upshaw, “he needs to be on the way to Stockholm to get his Nobel prize.”

Stocks Could Drop Sharply

American Tobacco, the fifth-largest U.S. cigarette maker, is a subsidiary of American Brands, a diversified company with sales in 1986 of almost $8.5 billion. Domestic and international cigarette sales accounted for nearly $5.2 billion of the total.

Both the Horton trial, which is expected to last a month, and the Cipollone case are attracting wide attention from investment analysts. Tobacco stocks--already heavily discounted due to product liability fears--could fall 15% to 20% in the event of a plaintiff victory, said Lawrence Pidgeon of Goldman, Sachs & Co., who stressed that this would be an overreaction.

“You talk about 15% of Philip Morris, that’s 3 or 4 billion dollars,” Pidgeon said. “Do you really think that’s justified because they’ve (the industry) lost one case in a Mississippi court?”

Cigarette manufacturers have never lost a verdict nor paid a nickel to settle any of the 250 to 300 suits brought against them over the last 30 years on behalf of dead or diseased smokers.

They have had to win only about a dozen trials to keep that record intact. About 120 cases are pending now, and most of the rest were dropped when plaintiffs were discouraged by unfavorable rulings elsewhere or the superior legal firepower of the cigarette companies.

The cigarette firms have hired dozens of top law firms and spent tens of millions in legal fees, but they have had more going for them than that. Judges and juries have also been reluctant to award damages to people they believe were well aware of the risks of smoking.

But under Mississippi’s doctrine of “pure” comparative fault, the Hortons could win damages if a jury decides American bore but a fraction of the blame. A manufacturer held just 1% responsible theoretically would be liable for that share of actual damages, with no restriction on punitive damages if a jury decided to award them. (The Hortons are asking for $2 million in actual damages and $15 million in exemplary damages.)

Good Site for Trial

For this and other reasons, Lexington--which is about 60 miles north of Jackson, Miss.--is seen by some observers as the last place American would want to defend this case. The community is the seat of Holmes County, which is three-fourths black and one of the poorest counties in the poorest state in the country. Nathan Horton was black, as are all 12 members of the jury, which was selected Monday.

Richard Daynard, a Northeastern University law professor and co-founder of the Tobacco Products Liability Project, a pro-plaintiffs group, said the trial site generally “bodes well” for the plaintiffs. “You have people who are not immediately going to . . . assume the beneficence of established American institutions like tobacco companies,” Daynard said.

Up to now, however, plaintiffs have had little to cheer about, despite repeated predictions of a breakthrough win. Advancing at glacial speed, only three of these cases have been tried in recent years and the tobacco industry won all three--including a suit filed by the survivors of John Galbraith in Santa Barbara, which was won by R. J. Reynolds Tobbaco Co. in December, 1985. Although three of the 12 jurors voted for Galbraith, the case was widely regarded as extremely weak since there was no clear evidence that he had died of a smoking-related disease.

Plaintiffs also are confronted by legislation adopted last year in California, Ohio and New Jersey that will make it difficult, if not impossible, for future tobacco cases to be filed, and may imperil pending cases. Moreover, in recent months three federal appeals courts have ruled that certain claims against the industry are preempted by the cigarette warning label mandated by Congress. This has weakened a number of cases, although Horton’s should not be affected.

Following opening statements Tuesday, plaintiff lawyers showed the jury two videotaped depositions of Preston Leake, director of research and development for American, who acknowledged that the company began adding a type of alcohol and nicotine to Pall Mall cigarettes in the mid-1960s.

Pesticide Levels

Leake also acknowledged that the cigarettes until recently contained residues of the insecticide DDVP, but said the company does not routinely test for pesticide levels.

Said Leake: “I don’t believe there’s anything in the smoke of a Pall Mall cigarette which would cause an adverse effect.”

Nathan Horton, who was born in Holmes County and delivered by a midwife, said in a deposition before his death that he began sneaking tobacco from his father while in his early teens.

Horton became acquainted with attorney Barrett when he helped Barrett build a duck camp on the nearby Yazoo River.

Lawyers on both sides declined interviews after being admonished by Circuit Judge Gray Evans not to talk to the press. Prior to the gag order, Barrett assessed the stakes. It won’t be long, he said, “before the house of cards comes tumbling down . . . or we slink back in our little holes, never to be heard from again.”