Tobacco Firms Win Round in N.Y. Court
Reeling from major West Coast defeats and the threat of a judgment day in Florida, cigarette makers scored a legal victory Tuesday in Brooklyn, N.Y., where a state court jury ruled tobacco companies were not to blame for the lung cancer of a longtime smoker.
The verdict in the case of Clyde Anderson, a former laborer who lives in Brooklyn, turned on the unexpected finding that his cancer was not linked to more than 30 years of smoking.
After a nearly two-month trial, jurors were to determine whether tobacco companies were guilty of a host of wrongs, including failing to give adequate health warnings and conspiring to deceive the public about the risks and addictiveness of smoking. But the panel’s 5-1 decision that smoking was not “a substantial factor” in Anderson’s cancer exonerated the companies and made all of those issues moot.
In the first individual smoker case ever tried in New York state, Anderson had sued R.J. Reynolds Tobacco Co., Philip Morris Cos. and Lorillard Tobacco Co. for making the brands he smoked from the early 1960s until 1993. Brown & Williamson Tobacco Corp., Liggett & Myers Tobacco Co. and two industry organizations were also on trial for allegedly taking part in a long-running conspiracy to hide the dangers of smoking.
Tobacco company lawyers had presented evidence that Anderson, 57, could have contracted cancer from exposure to toxic substances through his work as a bathtub refinisher and in other jobs.
Even so, the conclusion that smoking was a non-factor in Anderson’s illness was described by an industry spokesman as an “improbable” basis for victory, and by Martin Feldman, a tobacco analyst with Salomon Smith Barney, as a “remarkable decision.”
It appeared “the jury accepted the defense contention that bathtub refinishing is more likely a cause of lung cancer than 30 years of smoking Salems,” said Mark Gottlieb, a staff attorney with the Tobacco Products Liability Project, a Boston-based support group for lawyers who sue the industry.
Stuart Finz, one of Anderson’s lawyers, called the verdict “shocking . . . in view of the overwhelming proof that 33 years of cigarette smoking indeed caused Mr. Anderson’s lung cancer.” He said the case will be appealed.
Despite the victory, cigarette makers face a far greater threat in the Engle class-action case in Miami, where a group of Florida smokers numbering in the hundreds of thousands may be eligible for damages. The case is nearing the end of a crucial punitive damages phase that many analysts believe could produce an award in the tens of billions of dollars as early as mid-July.
Even so, industry officials savored the victory in Brooklyn, noting its pro-plaintiff leanings in asbestos cases and other litigation.
Brooklyn is “a very dangerous place to try cases if you’re a defendant, no matter what kind of product you have,” said William S. Ohlemeyer, vice president and associate general counsel for Philip Morris.
Tobacco lawyers had been able to “prevent the kind of jury anger . . . that’s infected a couple of the cases we’ve tried recently,” Ohlemeyer said.
He was referring to the string of eye-popping defeats sustained by Philip Morris and R.J. Reynolds this year and last in individual smoker trials in San Francisco and Portland, Ore. Verdicts in the three cases totaled $78.2 million even after judges substantially lowered two of the jury awards. All three cases are being appealed.
In a particularly alarming sign for the industry, a San Francisco jury in March awarded $21.7 million to plaintiff Leslie J. Whiteley, although she began smoking after warnings were placed on all cigarette packs. That result appeared to confirm a growing willingness by juries to base verdicts on the misconduct of tobacco companies, rather than on the weakness or bad judgment of smokers.
The Brooklyn verdict “bucks the trend of the West Coast cases,” Feldman said. For the plaintiffs, it “is a reality check on just how difficult it is to win a case against the tobacco industry,” he said.
Hundreds more claims by individual smokers are pending in courts throughout the country. Trial began Monday in Hernando, Miss., in one--a wrongful death case against R.J. Reynolds by the widow of lung cancer victim Joseph Nunnally.
Most carefully watched, however, is the Engle case in Miami, the only class action on behalf of sick smokers ever to go to trial.
Jurors in the marathon case ruled last July that smoking causes a host of deadly diseases and that cigarette makers were guilty of fraud for lying to the public.
In a second phase of the case that concluded in April, cigarette makers were found liable for the specific diseases of three class representatives, who were awarded compensatory damages totaling $12.7 million.
That set the stage for the current punitive-damages phase, in which jurors will decide whether to award punitives in a lump sum to be divided among all members of the class.
With closing arguments likely during the week of July 10, plaintiffs’ lawyers Stanley and Susan Rosenblatt are expected to request an award of $100 billion or more.
The difficulty of appealing such a huge award had prompted speculation about bankruptcy filings by one or more cigarette makers, but Florida lawmakers in May passed protective legislation to eliminate the threat.
To avoid paying a judgment during an appeal normally requires an appeal bond to be posted in the full amount--and it was this that triggered discussion of bankruptcy scenarios. However, the new Florida law caps appeal bonds at $100 million--a huge sum, but one the industry could raise to pursue an appeal.
Tobacco officials say they expect to reverse the Engle verdicts on appeal, contending the case was improperly granted class-action status.
