Tobacco Wins First in Series of Secondhand Smoke Suits

Jurors in Miami on Thursday found that secondhand smoke did not cause the lung disease of a former airline flight attendant, handing a victory to the tobacco industry in the first trial of more than 3,000 individual suits claiming injuries from breathing the air in smoky airline cabins.

The jury in Miami-Dade Circuit Court deliberated less than a day before finding that cigarette makers are not responsible for the severe respiratory ailments of Marie J. Fontana, 59, a former flight attendant for Trans World Airlines.

Lawyers for Fontana had asked the jury for a compensatory damages award of more than $1 million against cigarette makers Philip Morris Inc., R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Corp. and Lorillard Tobacco Co., which account for more than 90% of U.S. sales.

Saying he was disappointed and “a little surprised” by the verdict, Fontana’s lawyer Philip Gerson, said his firm will press ahead with more than 600 other cases it has filed on behalf of ailing flight attendants.

William S. Ohlemeyer, vice president and associate general counsel for Philip Morris, said the verdict was “certainly the correct result, given the facts of the case.” Fontana is seriously ill, but her sickness “wasn’t something that had anything to do with environmental tobacco smoke,” Ohlemeyer said.

The Fontana case had been closely watched by industry analysts as the first individual trial after settlement of the Broin case, a major class action filed on behalf of nonsmoking U.S. flight attendants.

The 1997 settlement provided $349 million for health research and legal expenses, but no compensation for claimants--who were required to seek damages individually under rules set by the agreement.

The ground rules included a prohibition on seeking punitive damages from the industry. But it gave cigarette makers the burden of proving that secondhand smoke does not cause diseases.

About 3,200 individual cases were filed, fewer than expected. Six Miami-area law firms are handling most of the cases, which have been divided among about 20 Miami circuit judges.

Fontana’s case was taken first because she is terminally ill, though on a waiting list for a lung transplant. She suffers from sarcoidosis, a disease of unknown origin that attacks the lungs. Tethered to an oxygen tank, Fontana testified during the nearly three-week trial, but at one point had to halt her testimony because she was coughing up blood.

Despite the severity of Fontana’s illness, observers believed her case was not one of the strongest. Her lawyers had to acknowledge that there is no evidence that tobacco smoke causes sarcoidosis, though they contended that exposure to smoke had worsened the condition.

They contended that Fontana also suffered from emphysema and chronic obstructive pulmonary disease, which are linked to tobacco smoke, though the defense disputed that diagnosis.

Before the Fontana trial, only two secondhand smoke cases had been tried to a verdict, and the industry won both.

Many health experts say secondhand smoke is a proven cause of lung cancer, heart disease and other ailments. But the evidence is nowhere near as strong as for the causal link between primary smoking and disease. And it is difficult to prove that a specific person’s illness resulted from breathing secondhand smoke.

Trials are scheduled for several more cases in May and June, but at least some are likely to be delayed by a tobacco industry appeal of a trial plan set for the cases.

Under the trial plan, set by now-retired Circuit Judge Robert P. Kaye, individual claimants need not prove that tobacco firms were guilty of specific wrongs, such as negligence or failure to warn, in order to win damages. Proving that their illnesses were caused by secondhand smoke will be sufficient, Kaye ruled.

Cigarette makers have appealed the plan, prompting some judges to delay trials. But Circuit Judge Thomas S. Wilson Jr. decided to go forward with the Fontana case.

The jury’s verdict came after the stock market closed. R.J. Reynolds closed at $56.66, up $1.56, and Philip Morris was up 61 cents, to $46.23, both on the New York Stock Exchange.