Secondhand Smoke Goes on Trial

In a $5 billion suit, nonsmokers take tobacco firms to court in Miami this week

One key characteristic separates flight attendant Norma Broin from scores of other plaintiffs trying to sue the tobacco industry.

Mrs. Broin isn't a smoker, and never was one.

A devout Mormon, Broin neither smokes nor drinks, and even shuns coffee and tea. She is a vegetarian and a jogger.

So when she was diagnosed with lung cancer in 1989, she believed there could be only one cause: 13 years of serving passengers in airline cabins clouded with suspended cigarette smoke.

This week, Broin and more than 20 other flight attendants who say they became ill because of secondhand cigarette smoke began presenting their case to a six-member jury in a state court in Miami. They are fighting on behalf of as many as 60,000 flight attendants nationwide. They seek $5 billion in damages.

The case marks the first time a class-action lawsuit against the tobacco industry has gone to trial, which means the stakes are higher than ever before with the potential for a verdict that could cause stock prices to tumble.

The case will be, in effect, a trial on the quality of research indicating that second-hand smoke poses a health risk. It is also significant because it is the first case to be waged by nonsmokers.

For years, lawyers for the tobacco companies have prevailed in courtrooms across the country against smokers who claimed cigarettes made them sick. Out of some 20 cases, the industry lost only one, and has yet to pay a single penny in damages.

One key to the tobacco lawyers' success has been their persuasive argument to juries that smokers accept the health risks of smoking when they choose to light up. They present the issue as a matter of adults choosing to engage in risky behavior.

But that highly effective defense argument doesn't apply to nonsmokers like Broin.

"All of our flight attendants made a choice not to smoke," attorney Stanley Rosenblatt told the jury in his opening statement. "They had no choice with respect to breathing, they had to breathe."

John Banzhaf, a law professor at George Washington University in Washington and director of the advocacy group Action on Smoking and Health, says reliance on nonsmokers as plaintiffs helps overcome a major hurdle.

"Most jurors are likely to be more sympathetic to nonsmokers than to smokers," he says. "These are truly innocent victims. They have not done anything to accept the risk."

At the heart of the flight attendants' case is the contention that tobacco executives were long aware that secondhand smoke poses a health risk, but lied and covered up the issue to preserve the industry's $50 billion annual profits.

A small army of lawyers are defending the five major tobacco companies and two industry groups named in the suit. They argue that there is no solid scientific evidence that secondhand smoke causes disease.

Analysts say that even if the flight attendants lose, the case marks a major turning point for the tobacco industry because it opens up a new universe of potential plaintiffs - any nonsmoker with a smoke-related illness whose employment required his or her presence in a smoke-filled environment. The case could trigger similar suits by thousands of workers such as bartenders, train conductors, waitresses, and casino workers.

"The potential liability here is tremendous," says Richard Daynard, director of the Tobacco Products Liability Project at Northeastern University in Boston. "Even if it doesn't win, the case opens a new front, and it underlines just how many victims this industry has left along the roadside."

From the industry's perspective, the high- stakes trial points up the importance of the recent $368 billion nationwide tobacco settlement - which would make moot most pending cases against the industry and prevent the filing of any new cases. The settlement, which must be endorsed by the White House and Congress, has no effect on the Miami trial because it began prior to any final approval, analysts say.

But the timing of the negotiations, so close to the start of the trial, has put the industry in an awkward position. Industry executives have agreed in their proposed nationwide settlement to label cigarette packs with a warning that secondhand smoke causes fatal lung disease in nonsmokers. And yet in court this week lawyers for those same executives are telling the Miami jury: "There is no good scientific evidence that secondhand smoke causes disease."

They say the secondhand smoke breathed by the flight attendants was "thousands of times" less concentrated than the tobacco smoke inhaled by a cigarette smoker, or roughly the equivalent of smoking five cigarettes a year. In contrast, they say, the average smoker lights up 7,000 cigarettes each year.

DEFENSE Attorney David Hardy denies that the industry ever lied or tried to cover up concerns about secondhand smoke. "No product has ever been so studied, so researched, so regulated," he says, "and yet the plaintiffs say we were lying."

In order to win at trial, Rosenblatt must prove to all six jurors that secondhand smoke caused the serious health problems suffered by each flight attendant. He must also prove that the tobacco industry actively conspired to mislead the public about the dangers of secondhand smoke and that, as part of that conspiracy, the individual flight attendants were misled about the threat they faced by working in an environment filled with secondhand smoke.

"One of the problems is going to be how well each side is able to get across the scientific, medical, and technical kinds of issues," Mr. Banzhaf says. "Unfortunately, this is an area where it is very easy to confuse people."

In order for it to prevail at trial, the tobacco industry must convince one of the six jurors that it is impossible to scientifically pinpoint whether secondhand smoke or some other cigarette toxin caused the illness of each of the flight attendants. "It doesn't take a scientist to tell us that secondhand smoke can be annoying," Mr. Hardy says. "But that is not scientific evidence that it causes disease."

The trial is expected to last three months.

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