Jury Selection Begins in Florida Smokers' Suit

TIMES STAFF WRITER

Big Tobacco girded itself against a new kind of legal threat Monday as jury selection began in Miami in the first class-action suit by smokers ever to go to trial.

The lawsuit, called Engle vs. R.J. Reynolds, seeks damages for as many as 200,000 Florida smokers who allegedly suffered disease or death because of their addiction to smoking.

The crowd of spectators on Day One of what promises to be a marathon trial included claimants toting portable oxygen tanks, whose coughing and wheezing punctuated the questioning of prospective jurors.

At least a dozen alternates are to be chosen along with a six-member jury because the trial could easily last into winter.

Wall Street will be closely monitoring the case, concerned not only by the potential for billions of dollars in damages, but the track record of plaintiffs lawyers Stanley and Susan Rosenblatt.

Last fall, the Rosenblatts scored a longshot victory in a secondhand smoke case filed for U.S. flight attendants when tobacco companies settled in the midst of trial for $349.5 million.

With $49.5 million earmarked for legal fees and the rest for health research, the Rosenblatts were widely criticized for getting a windfall without putting any money in the pockets of their clients. Even so, the husband-and-wife team, who had launched what many regarded as a quixotic attack on the $50-billion tobacco industry, established themselves as a force to be reckoned with.

The lead plaintiff in this case is Dr. Howard Engle, an emphysema sufferer in his late 70s who is pediatrician for the Rosenblatts' children. The case will be tried before the same judge--Dade County Circuit Judge Robert Kaye--who presided in the flight attendants case.

The suit, filed in May 1994, accuses cigarette makers of conducting a decades-long disinformation campaign on the risks and addictive power of their products.

But industry lawyers predicted in interviews that the theme of personal choice that has served them well in the past will prove effective here, too.

"The real guts of this case is whether or not people have long been aware that smoking is risky . . . and that people can quit smoking when they want to," said Robert C. Heim, lead trial attorney for industry leader Philip Morris.

"The fact that 40 to 50 million people have quit smoking is pretty powerful evidence that people can quit if they want to," Heim told The Times. Other defendants include R.J. Reynolds, Brown & Williamson Tobacco Corp., Lorillard Inc., Liggett Group, and two industry organizations--the Tobacco Institute and the Council for Tobacco Research.

Stanley Rosenblatt contends the case is really "about an industry who's in the business of preying on human weakness."

"I talk to people who have had their voice box removed but who still smoke. Their throats have been ripped out by the ravages of tobacco, and they continue to smoke. That's how addicted they are," he said.

The trial comes within a month of the collapse of sweeping tobacco legislation, which again shifted the focus of the smoking wars from Congress to the courts. The industry had hoped the legislation would include protection against future such class-action suits.

It also comes at a time of mixed results in recent tobacco cases. Last month, for example, a jury in Jacksonville, Fla., returned a $1-million verdict against Brown & Williamson, including the first punitive damages ever awarded in a smoking and health case. Then a few days later, a Florida appeals court overturned a $750,000 verdict won by the plaintiff in another Jacksonville lung cancer case in 1996.

A ferocious, high-stakes battle over whether to allow class actions in tobacco cases also serves as a backdrop. This latest case, in fact, appears to be an exception to a general trend of courts refusing to certify tobacco cases as class actions.

Rules of civil procedure provide for class-action trials when that provides an efficient way of resolving a welter of similar claims. But courts first must rule that issues common to the claims overwhelm the differences.

And in a recent series of pro-tobacco rulings, federal judges have thrown out class actions on grounds that class members differ too widely on such issues as the diseases they suffer, their efforts to quit smoking, and what warnings existed when they started.

But the trend against class-action status for mass injury cases gives cigarette makers some hope of success on appeal if they lose the Engle case.

"This class-action device is being used in an attempt to blackmail a settlement," said Daniel W. Donahue, deputy general counsel for R.J. Reynolds, adding that "we don't intend to settle."

The companies "are frightened, as well they should be," Rosenblatt said, "because this case has the potential to destroy them . . . because the sky's the limit in terms of damage potential."

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Times wire services were used in compiling this report.

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