Tobacco Firm Liable in Cancer Case
The tobacco industry suffered a legal defeat late Tuesday when a San Francisco jury found Philip Morris liable for the lung cancer of a longtime smoker and awarded her $1.5 million in compensatory damages, an amount that may rise when deliberations resume today on her request for punitive damages.
Tobacco companies have settled a number of major cases, but the verdict for Patricia Henley, 52, of Los Angeles is the first victory for a plaintiff in a California smoking and health case. The industry’s only three previous losses in suits by individual smokers were eventually set aside.
The outcome in the California case is likely to trigger an outpouring of new anti-tobacco claims in the state, where product liability suits against cigarette makers were until recently banned by state law.
After a monthlong trial, the 12-member jury in San Francisco Superior Court deliberated nearly 24 hours over four days before returning the verdict late Tuesday. Voting 12 to 0 on some claims and 11 to 1 or 10 to 2 on others, jurors found Philip Morris guilty of fraud and negligence and of failing to provide health warnings at the time Henley took up smoking.
Henley could not be reached, and lawyers for both sides declined to comment, citing the trial’s pending punitive-damages phase.
The verdict offers another reminder of the immense legal challenges still facing the tobacco industry--which has been widely but wrongly assumed to have disposed of its liability problems in November when it reached a historic legal settlement with state attorneys general. The Clinton administration recently announced its intent to sue the industry to recover smoking-related health-care costs borne by the federal government.
Moreover, the industry still faces dozens of private class-action suits and hundreds of claims by individual smokers across the country. The number of legal claims is sure to increase on the strength of the Henley verdict.
Henley is a high school dropout who ran a small business and once aspired to a career as a country and western singer. According to evidence in the case, she took up smoking in the early 1960s, when she was about 15, and quit during the fall of 1997, when she began experiencing coughing and other symptoms. In February 1998, she was diagnosed with an inoperable cancer in her chest, although it has responded well to chemotherapy and radiation treatments.
She accused Philip Morris of concealing the risks and addictiveness of smoking and of failing, even now, to warn that people who start smoking may be unable to quit.
Philip Morris countered that it was not liable because Henley understood and assumed the risks of smoking. The company also argued that Henley’s cancer did not start in the lung, as her suit maintains, and thus did not result from smoking.
In a deposition taken before trial, Henley testified that she did not want any money from Philip Morris--saying that if she won, any money left after payment of medical and legal bills would be donated to a group that fights smoking among teenagers. In Henley’s trial testimony, Judge John Munter, to avoid prejudicing jurors, did not permit her to discuss this plan.
Henley is the first Californian in 13 years to have her day in court against a tobacco company. The last tobacco trial ended in a verdict for the defendant company in December 1985, when a Santa Barbara jury found R.J. Reynolds Tobacco Corp. was not liable for the death of longtime smoker John Galbraith.
Product liability suits against tobacco companies were later prohibited under a 1987 tort reform law that banned them on the grounds that the risks of smoking were universally known. The immunity clause gained notoriety as the “napkin deal,” because lawmakers and lobbyists had sketched it on a napkin at a popular Sacramento restaurant. Lawmakers repealed the ban on anti-tobacco suits in 1997.
Besides the Henley case, an additional 20 or so new California claims are pending.
Philip Morris is the world’s largest tobacco company. The three previous jury verdicts against tobacco companies--in New Jersey in 1988 and in Florida in 1996 and 1998--were against other cigarette makers. All of those verdicts were overturned on appeal, including a ruling last week that struck down one of the Florida verdicts.
The verdict in the Henley case is likely to enhance the giant-killer status of Henley lead attorney Madelyn Chaber, a San Francisco lawyer who previously won a $2-million award against Lorillard Tobacco in a case involving asbestos exposure.
In that case, tried in San Francisco in 1995, jurors awarded compensatory and punitive damages to Milton Horowitz, a Beverly Hills psychologist who suffered from mesothelioma, an asbestos-related cancer. Jurors found that Horowitz contracted the disease from smoking Kent cigarettes in the early 1950s, when the Lorillard brand’s highly touted “Micronite” filter was made with crocidolite, a particularly lethal form of asbestos.
It was the biggest judgment imposed on a cigarette maker then or since--although it was not, strictly speaking, a smoking and health case, because the issue was exposure to asbestos rather than to unadulterated cigarette smoke.
In that case as in this one, Chaber’s opponent was William S. Ohlemeyer of the premier tobacco defense firm of Shook, Hardy & Bacon.
