1st Arguments Due in Key Suit Against Tobacco Company

Opening arguments are expected to start today in Jacksonville, Fla., in a wrongful-death case filed against R.J. Reynolds Tobacco Co. by the family of a lung cancer victim who smoked its Winston and Salem brands.

Jury selection began Monday and continued Tuesday in the closely watched case, which stems from the 1995 death of 49-year-old Jean Connor, a mother of three. The trial in Duval County Circuit Court is expected to last up to four weeks.

Legal and investment analysts are paying close attention because the Connor family is represented by the small Jacksonville law firm that scored a stunning victory over big tobacco in a lung cancer suit last August.

In that case, also tried in Jacksonville, attorneys from the eight-lawyer firm of Spohrer, Wilner, Maxwell, Maciejewski & Stanford won a $750,000 damage award against Brown & Williamson Tobacco Co. If the verdict survives an appeal, it would be the industry’s first loss in a case claiming injuries from cigarette smoking.

That surprising outcome--which came in the first of about 200 cases the law firm has filed against cigarette makers--temporarily sent tobacco shares into a steep nose dive and gave a huge psychological boost to the alliance of private lawyers and state attorneys general who have laid siege to the $50-billion industry. With a string of mega-trials approaching this summer and fall, the Jacksonville trial is seen as a key test of momentum in the smoking wars.

North Carolina-based Reynolds, the nation’s second-largest cigarette maker, says it is not liable for Connor’s smoking habit. But some facts are not in dispute: Jean Connor began smoking in 1961 at age 15, developed a two- to three-pack-a-day habit and quit shortly before her cancer was diagnosed in 1993.

She “died from cigarette-related lung cancer, which spread to her brain,” said Greg Maxwell, lawyer for Connor’s sister, Dana Raulerson, who sued on behalf of Connor’s children. Her slow death was “not only . . . excruciating for her, but very difficult for her family to watch,” Maxwell said.

The suit seeks compensatory and punitive damages, accusing Reynolds of negligence and conspiring to conceal information about the hazards and addictiveness of smoking.

The plaintiffs are expected to argue that Reynolds failed to advise Connor and others on ways to mitigate the hazards of smoking--such as by not smoking down to the butt because there is more tar in the last few puffs.

“They also aggressively promoted the product in a fashion that suggested it was safe and stylish and fashionable to smoke,” Maxwell said.

The plaintiffs are also expected to introduce internal documents in an effort to show that Reynolds knew smoking was addictive and dangerous long before warning labels went on its brands in 1966--by which time Connors was hooked, they contend.

Among the papers likely to be seen by jurors: a 1953 report in which a Reynolds scientist cited “growing suspicion” that the simultaneous rise in cigarette smoking and lung cancer “is more than coincidence”; and a 1962 memo stating that “the amount of evidence accumulated to indict cigarette smoke as a health hazard is overwhelming.”

Reynolds, however, says Connor made a personal choice to smoke and was aware of the alleged dangers. The company disputes the claim that she was addicted, saying that Connor kicked the habit on her first serious try in 1993 just before her illness was discovered. (According to the plaintiffs, Connor was trying to wean herself from smoking with nicotine patches at the time the disease was diagnosed.)

One point that could help Reynolds is that Connor didn’t smoke its cigarettes after 1983--switching then to Benson & Hedges, made by Philip Morris Cos., which is not being sued. Plaintiff lawyers contend Reynolds’ brands, which Connor smoked for more than 20 years, did the most damage and say they didn’t sue Philip Morris to avoid complicating the case.

Daniel Donahue, Reynolds’ deputy general counsel, said that while plaintiffs will try to make the case as “a debate on the continuing legitimacy of the tobacco industry,” the real issue is whether Reynolds caused Connor “to do anything she otherwise would not have done.” Said Donahue: “We think the answer is no.”

Reynolds’ legal team will be headed by Paul Crist of Jones, Day, Reavis & Pogue, national counsel to the cigarette maker.

On the plaintiff side, Maxwell and partner Norwood “Woody” Wilner will be joined by prominent trial attorney Ronald L. Motley of Charleston, S.C. The flamboyant Motley, known for using withering sarcasm to score points with jurors, will be making his first appearance in a cigarette trial.

Gary Black, tobacco analyst with Sanford C. Bernstein & Co., predicted last week that the trial will end in a hung jury--a result that he said should cause tobacco stocks to jump.

In recent months, the stock market has reacted wildly, and even irrationally, to news from the smoking wars, a trend that should continue through this case, said David Adelman, senior vice president with Dean Witter Reynolds.

“If the industry wins this, the market is going to think, ‘Wow, the industry’s defenses are awesome.’ If the industry loses it, the market is going to think the industry’s defenses are horrible,” Adelman said. The truth is in between, he added.

The volatility of tobacco stocks was illustrated by last summer’s anti-tobacco verdict. The $750,000 award within hours knocked $11.25 billion off the value of shares in Philip Morris, which was not even a defendant in the case.

A question raised in that case--and to be tested anew in this one--is whether the industry’s credibility has slipped so much that jurors are inclined to take the onus off smokers for persisting in a dangerous habit.

Tobacco juries traditionally have been forced to decide who was more to blame--the industry for promoting a hazardous product or smokers for continuing to use it.

Prior to Spohrer, Wilner’s conquest of Brown & Williamson, plaintiffs could point to just a pair of pyrrhic victories in 45 years of tobacco litigation. In 1988, jurors in a New Jersey case awarded $400,000 against a cigarette maker, but the verdict was voided on appeal. In 1990, a Mississippi jury found a tobacco company partly liable for a lung-cancer death but decided to award zero damages.

During the last two years, cigarette maker Lorillard Inc. has lost two cases stemming from its use of asbestos in the filter of Kent cigarettes in the early 1950s. But those verdicts involved injuries sustained from asbestos exposure, not cigarette smoke.

Times legal affairs writer Henry Weinstein contributed to this article.