Tampering Alleged in Cigarette Liability Trial

Mississippi state police are investigating charges of jury tampering in a prominent cigarette liability suit against American Tobacco Co. that ended last month in a hung jury.

The probe concerns affidavits alleging that two local employees of American’s defense team contacted at least three jurors during the trial, Frank Carlton, district attorney for Mississippi’s 4th Judicial District, said late Wednesday.

Carlton said the affidavits do not charge “an outright attempt to . . . affect the outcome of the trial.” He said the jury contacts, if they did occur, were improper but perhaps not “of a criminal nature.”

A mistrial was declared Jan. 29 in the $16.5-million damage suit brought in Lexington, Miss., by survivors of Nathan H. Horton, who died of lung cancer at age 50 after smoking American’s Pall Mall brand for more than 30 years.

Jurors initially were split 7-5 in favor of the Hortons, but were 7-5 for the company when the mistrial was declared, according to Circuit Judge Gray Evans. Cigarette companies have never been defeated or paid a penny to settle a suit stemming from disease or deaths of smokers. The Horton case was the first to reach a jury without the cigarette company winning an outright verdict.

Adds Another Twist

In affidavits gathered by the Horton lawyers, two jurors said they were called by a paid adviser of American during the trial and told of a change in the trial schedule, according to Carlton.

Two other affidavits concern another local American Tobacco adviser who allegedly boasted of receiving $2,700 for his work and was seen talking to a third juror.

Carlton said he has received no evidence indicating whether the alleged jury contacts were known to American or its lawyers. If no criminal conduct is found but improper contacts did occur, the court could still impose sanctions on the defendants, Carlton said.

American Tobacco officials could not be reached for comment. But James Upshaw, the company’s lead trial lawyer, called the affidavits “absurd” and “childish . . . an absolutely pathetic effort to get some type of publicity.”

Don Barrett, one of the Horton lawyers, said he had “no comment right now . . . When this is over, I’ll have plenty to say.”

Rare Problem

The investigation adds another twist to a case that ended on a bizarre note. Following a four-week trial, jurors had deliberated only 11 hours before the mistrial was declared, shocking the reporters, financial analysts and spectators who packed the courtroom.

Evans said in an interview that he had little alternative because the seven jurors favoring American and the five voting for the Hortons had spent hours in separate rooms, too angry at each other to deliberate.

Evans, who said this was a problem he had never encountered in nine years on the bench, consulted other judges by phone, finally deciding that a verdict reached through further pressure would not stand up on appeal.

The Horton lawyers have said they will seek a retrial.

During the last 35 years, tobacco companies have fended off 250 to 300 lawsuits blaming them for smokers’ illnesses or deaths, although most were dismissed or dropped before reaching trial.