Cancer Patient Savors Victory in Tobacco Suit

Lung cancer patient Leslie J. Whiteley made history last month by winning a $21.7-million settlement from tobacco giants Philip Morris and R.J. Reynolds despite the fact that she started smoking after warning labels appeared on cigarette packs.

But the 40-year-old Ojai woman doesn’t expect to live to see the money.

For her, proving the U.S. cigarette makers guilty of negligence and fraud was enough, she says. And for legions of other dying smokers, Whiteley’s case has sent shock waves through a historically impenetrable industry by setting a precedent for future lawsuits, legal experts have said.

“People get intimidated by them,” said Whiteley. “They need to be stopped. They’re committing genocide.”

Georgene Vairo, a tort law expert at Loyola Law School in Los Angeles, said: “I would expect we’ll see a lot more suits [like Whiteley’s]. It opens up the companies to a huge class of plaintiffs that were foreclosed before.”

Whiteley is suffering the debilitating side effects of weekly radiation and chemotherapy treatments that doctors hope will eradicate cancers in her brain and liver. When the San Francisco jury announced a verdict, she was recovering from brain surgery.

Because of her fragile health, Whiteley was interviewed by e-mail for this story with the assistance of her San Francisco-based attorney, Madelyn Chaber.

The appeals process could hold up payment of Whiteley’s settlement for at least five years, although the funds are needed to supplement her husband’s income as a truck driver, help support her four young children and pay more than $110,000 in medical bills.

But Whiteley dismissed the monetary award as secondary to the real reason she decided to fight the tobacco companies.

“Money is not why I did this,” she said. “These companies need to be held accountable for 450,000 deaths a year from their products. Unfortunately, all they understand is money.”

Attorneys for Philip Morris and R.J. Reynolds said the battle is far from over. They said that if Whiteley’s settlement survives the appeals, it will be the first to do so.

William S. Ohlemeyer, vice president and general counsel for Philip Morris Cos., said company attorneys plan to challenge Superior Court Judge John E. Munter for allowing the jury to consider as evidence cigarette ads published years before Whiteley was born.

Although jurors said Whiteley deserved the settlement because the tobacco firms encouraged their customers to doubt the health risks of smoking and lied to Congress in 1994 about those risks, Ohlemeyer said those arguments were not relevant to Whiteley’s case.

“The issue is supposed to be: ‘Was Mrs. Whiteley aware of the risk?’ ” he said. “The questions don’t involve a lot of discussion about what someone from Philip Morris said to Congress in 1994. It is hard for me to understand how you can argue that an intelligent and articulate woman like Mrs. Whiteley wasn’t aware of the risks of smoking.”

Whiteley asserts that tobacco ads lured her to the habit before she was mature enough to understand the consequences.

“Thirteen-year-olds have no common sense,” Whiteley said in her e-mail response. “Nor do they have the capability of making a lifelong decision of smoking. I say lifelong, because once you’re addicted you can’t just stop because a cigarette package says so.”

Whiteley started smoking Marlboros at 13 in 1972 while growing up in Ventura.

By 1978, at 19, Whiteley was smoking a pack and a half a day. Eight years later, she met her husband, Leonard, at Oxnard College while they both were applying for truck-driving licenses. She drove trucks for a few years and then left her job to care for her children, who now range in age from 3 to 11.

She smoked up to two packs a day until February 1998, when what she thought was a bad case of bronchitis turned out to be lung cancer. Now her days are marked by doctor appointments. She said her family is very proud of her legal victory, but exhausted by the strain of her disease and the 2 1/2-month trial, which she likened to being “dragged through the mud.”

“People are quick to judge and forget we are real people who have feelings and have been through physical and emotional pain . . . I didn’t smoke so I could get lung cancer and sue somebody.”