Ailing Ex-Smoker Awarded $1.72 Million in Tobacco Suit
The once-invincible tobacco industry on Monday suffered its third consecutive defeat in a West Coast smoking and health case when a San Francisco jury ordered Philip Morris and R.J. Reynolds to pay compensatory damages of $1.72 million to a lung cancer patient and voted to consider adding punitive damages.
The two leading U.S. cigarette makers were found guilty of negligence and fraud in the case of Leslie J. Whiteley, 40, an Ojai mother of four who is ill with cancer. Jurors are scheduled to reassemble today in San Francisco Superior Court to consider Whiteley’s claim for punitive damages.
Philip Morris officials declined to comment late Monday, citing the pending punitive damages phase.
“We’re disappointed by the verdict,” said Seth Moskowitz of R.J. Reynolds, who declined to comment further. The companies are likely to appeal.
Monday’s verdict after seven days of deliberations was a major loss for the industry, signaling a growing willingness by juries to base verdicts on the behavior of tobacco companies rather than on the weakness or bad judgment of their customers.
Indeed Whiteley’s background appeared conducive to an industry victory. She was the first plaintiff to go to trial who began smoking after warning labels began appearing on cigarette packs. That element of her smoking history--along with evidence about her alcohol abuse and use of marijuana--appeared very favorable to the defense.
“Look at what hot water the industry must be in now,” said Richard Daynard, a law professor at Northeastern University and head of the Tobacco Products Liability Project, an anti-smoking group. “If the companies couldn’t win this case, it’s hard to imagine what case they could win.”
Wall Street analysts had described the case as a test of recent refinements in tobacco defense strategy after major losses by Philip Morris in a pair of cases last year.
In the first case, in February 1999, a San Francisco jury awarded $51.5 million in damages to plaintiff Patricia Henley. In the other case, a Portland, Ore., jury awarded $80 million to the family of Jesse D. Williams, a deceased former Marlboro smoker. Judges in both cases later cut the awards roughly in half, and both cases are on appeal.
After those defeats, analysts said tobacco lawyers would revise their trial strategy--for example, by not challenging the plaintiffs’ diagnoses, which may have antagonized juries.
“It’s bad news” for the industry, said Bonnie Herzog, a vice president at Credit Suisse First Boston. But she noted that cigarette makers had won several cases that were not tried on the West Coast. “The problem is, we’re dealing with a pocket of the U.S. San Francisco is just definitely not a city that is pro-tobacco.”
Whiteley started smoking at age 13 in 1972, several years after the first surgeon general’s warnings appeared on cigarette packs. She quit in February 1998, but four months later was diagnosed with cancer.
After more than two months of testimony and arguments, jurors ruled 9-3, 10-2 or 12-0 on a series of questions on the verdict form, awarding $1.472 million in compensatory damages to Whiteley and $250,000 to her husband, Leonard. Philip Morris and Reynolds, whose brands Whiteley smoked, were ordered to split the damages.
A third defendant, Metalclad Insulation Corp., an asbestos firm, was found not liable. Whiteley’s lawyers had claimed that exposure to asbestos dust on the work clothing of Whiteley’s father and first husband had contributed to her illness.
For lead plaintiff’s lawyer Madelyn Chaber of San Francisco, the verdict was her third courtroom victory without a loss against tobacco defendants. Chaber handled the Henley case last year, and in 1995 won a $2-million verdict against Lorillard Tobacco in a case involving the use of asbestos in the original version of Kent cigarettes. Chaber was not available for comment.
For four decades, anti-tobacco suits by individual smokers failed, as cigarette makers managed to focus the spotlight on the plaintiffs’ disregard of health warnings.
Indeed, the recent emergence of massive anti-tobacco class actions and state suits reflected a view that individual claims against the powerful industry were doomed to fail.
But verdicts such as Monday’s suggest that juror attitudes are hardening in the face of internal documents contradicting the industry’s public stands on the risks and addictiveness of smoking.
In a Florida class-action case, jurors are expected in the next few weeks to consider whether to award punitive damages to an immense class of current and former smokers that may number in the hundreds of thousands. Some observers are predicting a punitive damages award in the tens or even hundreds of billions of dollars, which could force tobacco companies to file for bankruptcy.
