Tobacco Firms Face Spate of New Suits

Fresh from a record-breaking settlement with state attorneys general, the tobacco industry is confronting a new legal threat in California, where a change in state law has sprouted a new crop of anti-tobacco claims, the first of which is being tried in San Francisco.

Opening statements are set for today in the case filed by cancer victim Patricia Henley against Philip Morris Cos., whose brands she favored during most of her 35 years as a smoker.

In many ways, Henley, 52, of Los Angeles, is like hundreds of other plaintiffs charging that cigarette makers are liable for diseases stemming from years of using an addictive product.

But she is the first Californian in more than a dozen years to have her day in court, due to the state’s lengthy ban on filing smoking and health claims. And if the ex-Marlboro smoker prevails against the country’s biggest cigarette maker, a flood of suits by California smokers is likely to follow.

The reemergence of individual lawsuits in California is but one of the legal challenges facing Big Tobacco--widely, but wrongly, assumed to have disposed of its liability problems a couple of months ago when it reached a $206-billion legal settlement with the states. While getting rid of the state suits, the industry still faces hundreds of claims by individual smokers and dozens of class-action suits--along with a pending criminal probe by the Justice Department.

In California, claims like Henley’s were prohibited under a 1987 tort reform law that banned such suits on grounds that the risks of smoking were universally known. The immunity clause became notorious as the “napkin deal” because it was sketched out on a napkin at a popular Sacramento restaurant.

Protection from lawsuits in the country’s most populous and staunchly anti-smoking state was a tremendous boon to the industry. Indeed, dozens of cases pending at the time the tort law was adopted were summarily dismissed--and perhaps hundreds that might have been filed over the next decade were not.

But in 1997, when former state Atty. Gen. Dan Lungren joined counterparts from other states in suing cigarette makers to recover smoking-related health care costs, the move renewed complaints that lawmakers had blocked the courthouse door for ordinary citizens. In September 1997, the Legislature repealed the ban, triggering a small surge in filings--of which Henley’s is the first to reach trial.

An additional 20 or so new claims are also pending. According to Madelyn Chaber, Henley’s San Francisco lawyer, who is handling about 10 other tobacco cases, other plaintiffs attorneys “are waiting to see whether these cases can be won, and they choose to let others take the fall or the credit.”

“I guarantee if I win, there’ll be other cases filed.”

Philip Morris says that it is not liable for any illness resulting from Henley’s smoking habit, because she understood and assumed the risks. Moreover, the defense will contend that her cancer did not start in the lung as her suit maintains, and was not smoking-related, said William S. Ohlemeyer, a lawyer with the leading tobacco defense firm of Shook, Hardy & Bacon, which is representing Philip Morris.

Jury selection began Tuesday and the trial before San Francisco Superior Court Judge John Munter is expected to last four to six weeks.

The case reunites old foes, as Chaber and Ohlemeyer did battle in a historic case that ended in a $2-million defeat for cigarette maker Lorillard Inc.

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. The jury 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. The issue was exposure to asbestos, rather than unadulterated cigarette smoke, which is why the state’s ban on anti-smoking suits did Lorillard no good.

Henley is a high school dropout who went on to run a small business and once aspired to a career as a country-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.

Last February, she was diagnosed with an inoperable cancer in her chest, which has responded well to chemotherapy and radiation treatments.

Despite Henley’s ordeal, “it’s not like to this day she doesn’t crave a cigarette every day when she gets up,” Chaber said.

In a recent deposition, Henley testified that she did not want any of Philip Morris’ money--saying that if she wins, whatever money remains after medical and legal bills are paid will be donated to a group that fights teen smoking.

Her suit includes claims of negligence, strict liability and fraud. Among other things, she says that there were no warnings on cigarettes when she began smoking, and that Philip Morris and other cigarette makers to this day have failed to warn that people who start smoking may be unable to quit.

But Ohlemeyer contends that Philip Morris had “no duty to warn [Henley] of risks that were already matters of common knowledge.” He argues that Henley stopped smoking on her first serious attempt, proving that those who want to quit can.

The defense further says that Henley’s cancer originated in the thymus--a gland in the chest--rather than in the lung, creating doubt that her illness was smoking-related.

The last smoking case to be tried in California, Galbraith vs. R.J. Reynolds, ended in December 1985, when a Santa Barbara jury found the cigarette maker not liable for the death of a former smoker.