Suit Threatens Smoking Accord

Ralph Nader’s Public Citizen Litigation Group filed a formal challenge Monday to the $300-million settlement in the first class-action case that tested cigarette maker’s liability for illnesses allegedly caused by secondhand smoke, contending that the recent agreement is unfair to the plaintiff flight attendants.

“The settlement violates fundamental tenets of fairness and adequate representation” because its principal benefit is not cash paid to the class members but a $300-million payment to a medical research foundation named in honor of lead plaintiff Norma Broin, according to the brief filed by Brian Wolfman and Alan Morrison of Public Citizen. Flight attendant Broin, a nonsmoker, contracted lung cancer in 1989.

The brief asserts that the foundation, which is to do research on early detection and cure of smoking-related diseases, will yield no benefit to people like Public Citizen client Angela Williams, who already requires medical treatment for smoking-related asthma.

In addition, the foundation won’t help class members who already have serious terminal ailments or “who are the survivors of former flight attendants who have already succumbed to tobacco-related illness,” the brief states.

Public Citizen’s attorneys make a point of not casting aspersions on Broin’s motives. However, they say that as the representative of a class of thousands of plaintiffs she is simply not entitled to sacrifice their interest in order to achieve a personal goal--particularly a goal that was not cited as the purpose of the case when it was filed in 1991.

The brief also contends that the $46-million fee (plus $3 million in costs) that five major tobacco companies agreed to pay plaintiffs’ lawyers Stanley Rosenblatt and Susan Rosenblatt appears to be “grossly excessive.”

Stanley Rosenblatt said he would not comment directly on the challenge. However, he said that he would be filing a brief defending the settlement. “We have affidavits from some of the most knowledgeable people who think it’s a great settlement,” Rosenblatt added.

The Nader challenge, filed on behalf of three flight attendants, joins an earlier objection to the pact lodged in November by Jensen Beach, Fla., attorney Eric G. Olsen on behalf of another flight attendant. The new challenge is likely to increase scrutiny of the pact, which is to be reviewed at a fairness hearing in state court in Miami on Jan. 26.

In recent years, Public Citizen has successfully contested several major class-action settlements, including a 1997 U.S. Supreme Court decision rejecting a massive asbestos pact.

The Broin settlement also has been criticized by some legal scholars who follow class-action litigation closely. “I think there is something profoundly wrong if a plaintiffs’ lawyer can make $49 million while stripping his class and his clients of their most important legal rights and, in effect, giving away their recovery to a foundation without their consent,” said Columbia University law professor John Coffee.

The surprise settlement was announced on Oct. 10 as the defense was presenting its side of the case. Industry analysts said the tobacco companies had settled because a loss would have been a major embarrassment and undermined the industry’s key goal of a nationwide tobacco peace accord.

The deal provides that plaintiffs can still proceed with individual damage suits against the industry. The cigarette companies also agreed to take upon themselves the legal burden of proving certain diseases--including lung cancer--are not caused by secondhand smoke. On the other hand, punitive damages will be prohibited in any of the future cases.

Staff writer Myron Levin contributed to this story.