In Smoker Death Case, Family Wins but Gets No Award

In a stunning verdict Monday night, a jury here found American Tobacco Co. liable for the lung cancer death of a longtime smoker but awarded zero damages to his family.

The decision, seen as a victory for the tobacco industry in its fight to discourage smoker death lawsuits, shocked the lawyers, Wall Street consultants and reporters who packed the courtroom in the 150-year-old courthouse.

The jury deliberated 5 1/2 hours before rendering its verdict on the wrongful death claim brought by the family of Nathan H. Horton, a carpenter and contractor who died in 1987 at age 50 after smoking American’s Pall Mall brand for more than 30 years.

“It’s sort of a baffling decision,” said a litigation consultant for a Wall Street investment firm, who spoke on condition of anonymity. “It sounds like it’s continuing to protect the industry.”

Immediately after the verdict was read by Circuit Judge Eugene Bogen, lawyers for American Tobacco asked him to “reform” the verdict, contending that since no damages were due to plaintiffs, judgment should be entered for the tobacco company.

Lawyers for the Hortons, who had been seeking punitive damages of $15 million, moved for Bogen to award at least nominal damages or to set a new trial on the issue of damages alone.

Bogen said he would take both motions under advisement and left the courtroom without further comment.

The verdict came just before 7 p.m. on a 9-3 vote. It was uncertain whether the three dissenters had favored a clear judgment for American or a damage award for the Hortons.

Reached at home Monday night, jury foreman David G. Roach said the verdict was a compromise between jurors who were about evenly split between plaintiffs and defendants. “It was a very high likelihood of a hung jury,” said Roach, 41, deputy director of computing and information systems at the University of Mississippi. “This was a verdict that nine out of 12 could accept.”

The outcome could prove discouraging to plaintiffs’ lawyers since it shows they must contend not only with the tobacco industry’s high-powered legal defense but with the hostility of jurors toward smokers who ignore health warnings yet seek damages for smoking-related disease.

Kurt Feuerman, a tobacco analyst at Morgan Stanley & Co., Monday night called the verdict “very positive” for the industry “because it basically confirms the industry’s long-term record” of defeating smoker death claims.

Richard Daynard, a law professor at Northeastern University in Boston and chairman of the Tobacco Products Liability Project, which encourages lawsuits against tobacco companies, said: “The upside of this is that the tobacco companies, even in the Deep South, even with six smokers on the jury, can’t come up with a verdict anymore. The downside is, we’re still waiting for our verdict.”

The number of smoker death claims against the industry has dwindled from about 120 two years ago to about 55 today.

The jury of eight women and four men included six smokers, of whom five reportedly stated on jury questionnaires that they could kick the habit if they tried. That was seen as a negative for plaintiffs, who said Horton had tried but was unable to quit smoking.

Monday’s verdict actually makes it three trials out of the last five that the industry failed to win. Still, the tobacco companies’ 35-year record of never paying a nickel to a customer who contracted smoking-related disease remains intact.

In June, 1988, a federal jury in Newark, N.J., awarded $400,000 damages in a smoker death case, but the verdict was overturned on appeal last January and a new trial is pending.

In January, 1988, the first Horton trial ended in a hung jury when bitterly divided jurors, split 7-5 in American’s favor, refused to continue deliberating with each other.

Lawyers for American declined comment after the verdict in the retrial Monday.

Horton attorney Don Barrett, obviously disappointed, said: “The longest journey must begin with a single step. That’s all I have to say.”