Smoker Death Case Could Help Clear the Air on Liability : Litigation: Cigarette makers face a tough test in a retrial of a wrongful death suit. It could put a damper on future cases--or prompt the filing of more.
A state court jury is expected to begin deliberating Monday whether to hold American Tobacco Co. liable for the lung cancer death of a Mississippi contractor who was a longtime smoker of the company’s Pall Mall brand.
The closely watched case is a retrial of a $17-million wrongful death suit that ended in a hung jury in January, 1988, when bitterly divided jurors refused to talk to one another after deliberating only 11 hours.
At the time, it was the first smoker death trial in history that did not produce a clear-cut verdict for the cigarette makers.
The retrial, which began Sept. 4 in the 150-year-old courthouse in this Northern Mississippi town, is seen by financial and legal analysts as a stiff test for the industry. A significant damage award could prompt the filing of more lawsuits and cause plaintiffs to push pending claims more aggressively.
The cancer victim in the Mississippi case was Nathan H. Horton, who was 50 when he died in 1987 after smoking about two packs a day of the unfiltered cigarettes for more than 30 years.
Lawyers for Horton’s widow, Ella Mae Horton, called their last rebuttal witness Thursday afternoon, and Circuit Judge Eugene Bogen announced that closing arguments would begin this morning and the jury would be deliberating by early afternoon.
However, Bogen said Thursday night that everyone involved was tired and jurors were being called and told not to come back until Monday morning.
The $40-billion-a-year tobacco industry suffered its first defeat in a New Jersey smoker death case in June, 1988, but the damage award was overturned on appeal and a retrial is pending. Thus the cigarette makers’ 35-year record of never paying a nickel in damages in a smoking case remains intact.
The Horton retrial is seen as a significant challenge because American had a close call in Round 1, despite pretrial rulings that severely limited the plaintiff’s case.
The first trial judge barred the plaintiffs from attacking cigarettes as an unreasonably dangerous product, on grounds that their hazards were well known to the average person. The plaintiffs thus argued a gimmicky case that Pall Malls contained pesticides and other adulterants that Horton couldn’t possibly have known about and that contributed to his death.
This time, however, Bogen has allowed the plaintiffs to argue a strict liability claim that cigarettes were more dangerous than most consumers were aware, at least during key times in the years Horton smoked. The plaintiffs have also accused American of negligence for manufacturing products that allegedly kill thousands of their users.
Although the change in ground rules has favored the plaintiffs, some observers believe that the defendants benefited from a venue change from Lexington, Miss., where the first case was tried, to this handsome college town, which is home to the University of Mississippi.
American Tobacco, the fifth-largest U.S. cigarette maker, is a subsidiary of American Brands, a diversified giant that had 1989 revenue of $11.9 billion, including $7 billion in foreign and U.S. tobacco sales.
American’s lawyers have argued that cigarettes are not a proven cause of lung cancer and that the type of cancer Horton had is not usually associated with smoking.
They have also contended that Horton was well aware of warnings not to smoke and did so of his own free will, thus assuming the risk.
Plaintiff attorneys have said that Horton bears some responsibility for his smoking habit but that American shares the blame for his illness and death.
Mississippi is one of about a dozen states observing what is known as “pure” comparative fault. Under this legal doctrine, a plaintiff found to be 90% responsible for his injury could still collect a 10% share of compensatory damages and any amount of punitive damages a jury might choose to award.
Wrongful death claims against cigarette companies have dwindled from about 120 at the time of the first Horton trial to about 55 throughout the country today.
One reason, ironically, is that the landmark plaintiff victory in New Jersey in what is known as the Cipollone case showed how illusory such a victory might be. The Cipollone lawyers invested $2 million in time and expenses for a $400,000 award that was later overturned on appeal and is pending retrial.
As a result, most analysts believe that if the Horton retrial ends in a verdict for the industry or even a small loss, the effect will be greater reluctance on the part of plaintiff’s lawyers to bring these cases.
The Horton lawyers have “invested a number of years and two trials,” and a small award “sends a message in terms of whether additional other cases will be filed,” said Diana K. Temple, a director in research at Salomon Bros. in New York.
Calvert Crary, another New York analyst, agreed that it might take a series of victories for plaintiffs to cause a large upsurge in smoker death cases. Comparing it to asbestos litigation, which has enriched many plaintiff lawyers, Crary said tobacco companies won’t see a flood of cases unless it “gets so easy that you’re just picking up free money on the sidewalk.”
The trial has produced some amusing moments, including regular interruptions when the clock on the ancient courthouse strikes the hour. On one occasion, when the clock interrupted cross-examination of marketing expert and plaintiff witness Dr. Ed Popper, American’s lead trial counsel James Upshaw left himself wide open by wondering aloud for whom the bell tolled.
“It tolls for thee,” Popper said bringing gales of laughter from the jury.
But the retrial has been positively sedate compared to the first round in Lexington, which ended on a bizarre note when jurors, split 7-5 in American’s favor, closeted themselves in two separate rooms, too angry to talk to each other.
Judge Gray Evans, who presided at the first trial, said he had no alternative but to declare a mistrial, because any verdict reached through pressure would not stand up on appeal.
Jury tampering charges surfaced days after the mistrial was declared, and a state investigation found that a local jury consultant for American had contacted two jurors and the husband of a third. However, the investigation found no evidence of efforts to influence jurors or of criminal wrongdoing.
In February of this year, weeks before the retrial was to start in Lexington, the courthouse there was broken into over the weekend, and the only thing disturbed was a locked box containing names of potential jurors. No arrests have been made.
Then in April, just before the retrial was to begin, Judge Bogen suddenly ordered a postponement and venue change saying a media kit distributed by plaintiff lawyers injected race into the case and could bias jurors.
The retrial has lacked the atmospherics of the first. Some analysts believe that the change in venue to this larger, more upscale town has served American well. According to this reasoning, jurors in Lexington, seat of predominantly black and impoverished Holmes County, were more likely to sympathize with a local black family against a wealthy and distant corporation.
