Firm Held Liable in Smoking Death : Jury Awards $400,000 in Cancer Case but Clears 3 Companies of Conspiracy
In a landmark defeat for the tobacco industry, a federal court jury Monday for the first time found a cigarette company liable in the death of a smoker, ordering that $400,000 in damages be paid by Liggett Group Inc. to a New Jersey man whose wife smoked the company’s brands.
The six-member jury unanimously ruled that Liggett had breached a warranty, expressed in its advertisements before 1966, that its cigarettes were safe.
In the 1950s, ads for Chesterfield, a Liggett brand smoked for years by Rose Cipollone--the Little Ferry, N.J., woman whose lung cancer triggered the case--urged smokers to “play safe” by smoking the brand and claimed: “Nose, Throat and Accessory Organs Not Adversely Affected by Smoking Chesterfields.”
Chesterfields--and L&Ms;, the other Liggett brand Cipollone smoked--also was advertised with such slogans as “Play Safe--Smoke Chesterfield” and “Just What the Doctor Ordered.”
Caution Statements
In the verdict, jurors ruled that Liggett had a duty to warn of the risks of smoking before 1966, the year when congressionally ordered caution statements began appearing on cigarette packs. However, the jury assessed no damages against Liggett for failure to warn, reasoning that a warning probably would not have led Cipollone, who died at the age of 58, to kick the habit.
And in a setback for the plaintiff and for anti-smoking activists, jurors found no proof of a conspiracy by Liggett and two other companies--Philip Morris and Lorillard Inc.--to fraudulently misrepresent the hazards of smoking.
“I’m glad it’s over,” said Antonio Cipollone, 64, a retired cable splicer, who pursued the case filed by his wife to fulfill her dying wish. “It’s not 100%, but it’s good,” he said referring to the verdict.
Lawyers for Liggett, the smallest of the six major U.S. cigarette manufacturers, said they would appeal on grounds that U.S. District Judge H. Lee Sarokin’s instructions to the jury were faulty.
“We do not consider we lost the case,” said Josiah Murray, general counsel for Liggett. “We anticipate winning on appeal.” He also noted that, except for the warranty charge, the rest of the verdict exonerated the industry.
However, Chuck Wall, a lawyer for Philip Morris and Lorillard--the first- and fourth-biggest cigarette firms--expressed “disappointment” in the outcome, even though his clients won.
Since the 1950s, the tobacco industry had been sued about 300 times over illness or death of smokers, but it had never lost a case before Monday. The cigarette makers had escaped the product liability losses that have driven companies such as Manville Corp., the asbestos giant, and A. H. Robins, maker of the Dalkon shield intrauterine device, into bankruptcy courts.
Long Odds Cited
No similar fate awaits the cigarette companies, most experts say, because of their huge size and profitability and the high cost and long odds of defeating them in court. Cigarette sales total $35 billion per year.
Still, most observers predicted that the jury’s decision would cause more cases to be filed and breathe new life into the 90 or so already awaiting trial in courts around the country. Industry opponents also said that the verdict would add momentum to smoking-control legislation pending in state legislatures and Congress.
Rep. Henry A. Waxman (D-Los Angeles), a leading industry critic who chairs the House Energy and Commerce health and environment subcommittee, called the decision “a significant and long-overdue breakthrough. This crack in the tobacco industry’s liability armor will be very influential beyond specifics of this case.”
The jury, which included a smoker and two former smokers, left the court after the verdict and declined to talk to reporters.
The Cipollone trial began Feb. 1 and was the longest cigarette liability trial in history. It attracted wide attention and was referred to as “Brown vs. Board of Education” for the smoking control movement, a reference to the landmark school desegregation ruling by the U.S. Supreme Court in 1954.
The case included thousands of internal documents that the industry for the first time was forced to surrender to lawyers for Cipollone, who won the right to search industry files in hard-fought pretrial battles.
Cipollone lawyers introduced scores of embarrassing documents in an effort to show that the industry knew almost a half-century ago that smoking and cancer were linked, but conspired to misrepresent the hazards to lure new smokers and keep current ones from quitting.
But the jurors found the companies not liable for fraud or conspiracy. Industry lawyers emphasized this point to put the best face on the defeat.
“This was supposed to be a big documents case, and it turned out not to be,” said Wall, the Philip Morris and Lorillard lawyer. The outcome will not send people “running to the courthouse to file lawsuits against the tobacco industry,” he said.
‘A First Victory’
Marc Z. Edell, 37, Cipollone’s main trial lawyer, said the verdict was “a first victory and there’ll be many more to come. . . . I think what they (the defense) consider a victory is escaping without a multimillion-dollar verdict.”
But Edell admitted disappointment at the split verdict and damage award. His law firm and another in New Jersey invested more than $2 million in expenses and billable time over the last five years in the case, the first of seven that the two firms have pending in New Jersey and federal courts.
“Obviously, the numbers didn’t match up in this case,” he said.
Edell also said that he would ask Judge Sarokin to set aside the jury award of zero damages for the suffering of Rose Cipollone. The $400,000 was for damages, including compensation for $124,500 in medical expenses, that will be paid to her husband. The jury refused to award punitive damages.
“It’s inconceivable that there were no damages for Rose,” Edell said. “Everybody’s life is worth something.” The jury deliberated for five days before reaching its verdict about 5 p.m. Monday.
Difference of Opinion
The companies had argued that there was no fraud, but rather a legitimate difference of opinion about the health effects of smoking. They argued that nothing they said or did got Cipollone to smoke. They also said that smoking still has not been proven to cause lung cancer and that Cipollone’s cancer was not even of a type statistically associated with smoking.
Cipollone lawyers had introduced scores of documents to argue that the industry consciously manipulated its nicotine-dependent customers to weaken their will to quit.
According to a 1972 memo by a vice president with the Tobacco Institute, an industry lobbying group, the industry for 20 years had pursued a “brilliantly conceived and executed strategy” of “creating doubt about the health charge without actually denying it.”
Lawyers for the plaintiff argued that the companies funded research to create the false impression that they were looking for the truth. They introduced into evidence “A Frank Statement to Cigarette Smokers,” an industry-sponsored ad that appeared in more than 400 newspapers in January, 1954, when fears about cancer related to smoking were increasing.
‘Basic Responsibility’
“We accept an interest in people’s health as a basic responsibility, paramount to every other consideration in our business,” said the ad, which announced formation of an industry group to fund research on smoking and health.
But Cipollone’s lawyers charged that the group, the Council for Tobacco Research, was “created to muddy the truth and keep alive the fiction of a raging controversy only years of research could resolve.”
Throughout the four-month trial, the defense suggested that the documents were sideshows to distract from the real issue of personal responsibility. They described Rose Cipollone as a well-informed and strong-willed person who chose to smoke and to disregard anti-smoking articles she read and the pleas of her husband to quit.
Pointing out that Cipollone kept smoking after the upper lobe of her cancerous right lung was removed, plaintiff lawyers said that she was addicted, and thus susceptible to industry advertising and public relations.
