Supreme Court to Weigh Cigarette Warning Labels : Law: Justices to decide if firms are shielded from suits. Some experts see ‘tremendous blow’ to tobacco industry.

In a case that anti-smoking groups said could expose the tobacco industry to ruinous lawsuits, the Supreme Court on Monday said that it would decide whether the warning labels on cigarettes shield tobacco companies from suits by victims of smoking-related illnesses.

Since 1966, the federal government has required cigarettes to carry a warning that they are “dangerous to your health.”

Even so, 50 million American adults continue to smoke and an estimated 3,000 teen-agers start smoking every day, according to the American Lung Assn. Nearly 400,000 persons die each year from cancer or other smoking-induced ailments, according to the association.

Although the warning labels originally were thought to be a sword for use against the tobacco industry, they have become instead a shield against lawsuits filed by cancer victims and their families.

Five separate federal appeals courts have ruled that warning labels bar cigarette makers from being sued in state courts for having advertised and promoted an addictive and cancer-causing product.

On Monday, the Supreme Court announced that it would reconsider those rulings in the fall.

The plaintiffs challenging the tobacco firms may have a good chance of winning in the high court, since in most instances the justices have refused to block damage suits in state courts.

If the high court were to lift the liability shield, attorneys for cancer-ridden smokers or their survivors could ask a jury to award them damages for having been induced or deceived into beginning or continuing a deadly habit.

But legal experts were divided Monday on the potential impact of such a ruling.

The attorneys who have led a legal fight against the cigarette makers said that such a decision would be a “tremendous blow” to the tobacco industry. Paying the damage claims could force an increase of $2 in the price of cigarettes, they said.

“This will mean the tobacco industry will have to pay for the death and disease that they have caused,” said Richard Daynard of the Tobacco Products Liability Project in Boston. “They also will have to stop lying about the dangers of smoking.”

But others questioned whether juries would award large damage claims to longtime smokers. They argued that the real roadblock to winning huge damage verdicts against the tobacco industry has been juries, not the liability shield.

“Juries have not been particularly sympathetic to these claims,” said Robert L. Rabin, a professor of law at Stanford University and an expert on liability suits. “It is by no means clear that this will open up the floodgates of litigation.”

Jurors interviewed after several earlier trials said that they believed the smoker knew of the danger and smoked anyway, he noted. As a result, they refused to hold cigarette makers responsible for ailments incurred by smokers.

Moreover, the federal law never has blocked claims against tobacco firms based on advertising and promotional claims made before 1966. Before that date, cigarette makers routinely asserted that smoking was “safe” and even beneficial to health. Even so, juries have not been persuaded to award huge damages to smokers who began their habit in the 1940s and 1950s.

“The tobacco companies have never paid out a penny” in damages, despite years of lawsuits and the expenditure of millions of dollars in legal fees, said Washington attorney Alan Morrison, who has backed the smokers in legal briefs.

However, Morrison said that suits against cigarette makers would be “more winnable” if the Supreme Court threw out the liability shield. Then, plaintiffs’ lawyers could expose the industry’s marketing strategies to keep smokers smoking.

“This would be the first time the public would really learn about what they have done to get around the warning labels,” Morrison said. “You need that kind of information to convince a jury.”

Regardless of the outcome, state lawmakers have made it nearly impossible for ex-smokers to win damages from cigarette makers in a California court. A 1987 state law bars damage claims against the makers of cigarettes and other products that are “known to be unsafe by the ordinary consumer.”

Still, a Supreme Court ruling knocking down the liability shield based on the warning labels could spur a new round of lawsuits in other states against the tobacco industry.

The case before the high court is carried on by Thomas Cipollone, the son of cancer victim Rose Cipollone, who is now dead. Mrs. Cipollone began smoking Chesterfield cigarettes in 1942, when she was 16 years old. She thought smoking was “glamorous,” she said in a court deposition, because “the pretty girls and the movies stars” smoked Chesterfields in company ads.

Over the years, she smoked at least a pack of cigarettes a day. But she changed brands several times, usually in response to advertising claims that a new cigarette was “mild” and offered “miracle tips” that made smoking safer. In 1981, she was found to have lung cancer, but she kept smoking. She died three years later at age 58.

Before her death, she and her husband had filed a suit against the Liggett Group Inc., a cigarette maker, contending that their promotional claims had convinced her that smoking was not dangerous.

In 1988, in what was considered a landmark verdict at the time, a jury in New Jersey handed down a $400,000 verdict against the cigarette maker. But last year, a federal appeals court in Philadelphia overturned the verdict, ruling that the federal warning label law preempted liability claims based on false advertising. Cipollone’s family appealed to the Supreme Court, pointing out that state courts in New Jersey and Texas had ruled that the federal warning label law did not bar state liability claims.

Attorneys for the tobacco industry agreed that the Supreme Court should decide the issue.

“We’re pleased the court has accepted the case for review and will resolve the clear conflict in the lower courts,” said David Kentoff, an attorney for Philip Morris Inc.

The case (Cipollone vs. Liggett Group, 90-1038) will be heard in October, with a decision likely early next year.

BACKGROUND

The tobacco industry faced a growing legal assault during much of the 1980s. In 1986 alone, more than 65 product-liability cases were filed against tobacco firms, bringing the number of outstanding suits against them to 160, according to the Tobacco Products Liability Project in Boston, a support group for attorneys who handle such cases. But the drive to pin legal liability on the manufacturers was nearly snuffed out that year when the U.S. 3rd Circuit Court of Appeals decided the federal cigarette-labeling act “preempted” product-liability suits against cigarette companies. The court accepted the industry contention that the federal act--which since 1966 has required tobacco firms to label their products as potentially harmful to health--protected the cigarette makers from “failure-to-warn” lawsuits. While there are other grounds, such as negligence or fraud, that can be used to sue tobacco companies, it is generally agreed that the plaintiff’s most potentially successful grounds is failure to warn--the issue that the U.S. Supreme Court now has agreed to hear.