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|In a Memphis, Tenn., courtroom, the families of four deceased smokers including a
homemaker and a long-haul truck driver are suing the nation's three biggest tobacco
companies for $660 million in damages.
In Akron, Ohio, jury selection will begin this month in a lawsuit against the tobacco industry by a labor union health fund, in the first such case to reach trial. The health fund is seeking $750 million for starters, and far more if it can prove civil racketeering charges against producers.
In Portland, Ore., a jury is expected to hear a claim soon that was brought against a cigarette producer by the family of another dead smoker.
Just a few months ago, the tobacco industry thought it had vanquished its greatest legal threat when it agreed to settle all remaining claims brought by states seeking to recover Medicaid expenses, by paying the states $206 billion over 25 years.
But in the months of jockeying that led to the settlement, there was a steady growth in the number of lawsuits against cigarette makers by individual smokers and others. And this week the industry's calm was shattered when a California jury, in a suit brought by a woman who had smoked
Marlboro cigarettes since age 15, ordered Philip Morris Cos. to pay her $51.5 million in compensatory and punitive damages.
Tobacco producers had not viewed such individual claims as a threat, in large part because few cases succeeded, awards were small and all were overturned on appeal. But the California verdict, coming after years of relentless pounding of the industry in the court of public opinion, suggests
that the calm enjoyed by producers since the announcement of the settlement with the states late last year is over. There is much more anger among potential jurors than cigarette makers had thought.
Robert Rabin, a professor of law at Stanford University who follows tobacco litigation, said he believed that the steady disclosure in recent years of damaging documents from cigarette company files might have shifted public attitudes toward the industry from the benign to the hostile. Those documents revealed, for example, that some companies sought to recruit teen-agers as
"The emphasis is no longer just on the product being dangerous, but on the industry being malevolent in trying to cover up those dangers," Rabin said. "And it is not just happening in the juror room but in the general way people think about the industry."
Philip Morris officials have said they will appeal the California verdict, which was meted out by a state jury in San Francisco. And there is a strong likelihood that the stunning verdict, which included $50 million in punitive damages against Philip Morris, the country's largest cigarette maker, may be reduced or even thrown out on appeal.
Madelyn J. Chaber, who represented the smoker, Patricia Henley, had asked jurors to award $15 million in punitive damages, which are intended to punish the company.
William S. Ohlemeyer, a lawyer representing Philip Morris, said he believed that the size of the verdict represented not only sympathy by jurors for Ms. Henley, who said her lung cancer resulted from smoking Marlboros for 35 years, but also a deep antipathy for cigarette makers.
"These lawsuits should be decided on the facts rather than emotion," Ohlemeyer said.
But for jurors these days, emotions may be a part of how they view such facts. While Ms. Chaber, the lawyer, did not introduce any new evidence in the California case, she did make extensive use of documents produced by cigarette makers in recent years that indicated they manipulated nicotine levels to keep smokers hooked and marketed "light" cigarettes -- those with lower tar levels -- to smokers concerned about their health.
One juror, Gwen Leath, a banker from San Francisco, said she was particularly disturbed that Philip Morris had tried for decades to cast doubt on scientific reports by government officials that smoking was addictive and caused cancer.
"With publicity and advertising, they really tried to downplay it as a controversy between the surgeon general and responsible medical people," said Ms. Leath, 47. "It all seemed kind of deceiving, and they were kind of saying, like, 'Oh, this is just business.' "
The jury's foreman, George Loudis, said he believed that the $15 million sought by Ms. Chafer in punitives damages to send Philip Morris what she called a "strong message" should have served as a maximum for the jury's award. But while he declined to disclose the amount he had suggested, he
added that some jurors had considered punitive awards in the hundreds of millions, with one juror going as high as $1 billion.
"People felt that the tobacco companies were suppressing what they knew and misstated what they knew from their findings to be true." said Loudis, 37. "That was proven to us, that they suppressed knowledge."
Ms. Henley said on Thursday at a news conference in San Francisco that she would use the money to finance programs to keep children from smoking.
"I wouldn't touch a nickel of somebody's blood money," she said. "But I have to hand it to the jury: they awarded that money not knowing that I wasn't going to keep it."
The California verdict was only the fourth time in more than a decade that a jury has awarded damages in tobacco case brought by an individual smoker. And the previous awards, including the most recent two cases in Florida against Brown & Williamson Tobacco Co., were overturned on appeal.
The highest previous award in a smoker's case was for $1 million including punitive damages and that was set aside on appeal.
But the number of both individual cases as well as class-action lawsuits against cigarette makers has been steadily growing. In a recent financial filing, Philip Morris said, for example, that there were some 510 smoking and health cases filed by individuals against it at the end of 1998 compared with 375 a year earlier. Meanwhile, the number of class action cases grew to 60 from 50, the company reported.
In recent months, a major class-action lawsuit brought on behalf on all smokers in Florida has been under way in a Miami courtroom. It is expected to go to the jury soon.
In California, the size of the latest award may also set off a stampede, some financial analysts believe. Until 1997, product liablity claims by smokers were barred after a state law was passed more than a decade ago that held that dangers of smoking were well-known. According to a spokesman for Philip Morris, about 63 cigarette cases have been filed in California since the law's repeal. About 20 of those cases are from individuals and the rest are class-action cases.
Also, a number of foreign government including Bolivia, Panama and Nicaragua have filed claims in the United States against tobacco companies, and President Clinton also recently announced that he had directed the Justice Department to begin preparing a lawsuit against cigarette makers to
recover Medicare and other federal funds spend treating smoking-related ills.
Rabin, the university professor, said he believed that cigarette producers had the financial resources to withstand five to six judgements against them annually, even if some of them involved substantial punitive damage awards.
But he added that while the industry worked long and hard to put the most troublesome cases, those brought by the states, behind it, the bright new day of financial certainty that it anticipated may be long time arriving.
"If plaintiffs win a handful of these cases each year, the industry can deal with that because they can get some of them reversed on appeal," Rabin said. "But every victory with a big price tag bloodies the waters and creates powerful incentives for a great deal of additional cases to be brought"
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