Deep new rut in Tobacco's road

Industry is likely to appeal Florida verdict, but case could fuel

The sweeping verdict returned this week against the tobacco industry suggests that Americans are beginning to formally question cigarette-makers' motives rather than exclusively blaming smokers for illness linked to tobacco use.

The verdict returned in a massive class-action lawsuit Wednesday after an eight-month trial sends the clearest message yet to Big Tobacco that the industry may be held responsible for the deaths and ill health that medical experts attribute to cigarettes.

The verdict is expected to spark similar class-action suits across the country, a prospect that could tie up the industry in expensive litigation well into the next century.

"This is far and away the most important single development in tobacco litigation since we got started in 1984," says Richard Daynard of the Tobacco Products Liability Center at Northeastern University in Boston.

Combined with recent verdicts against the industry in cases filed by individual smokers in San Francisco and Portland, Ore., the victory for smokers in Florida marks an important turning point, he says. "In a sense it is confirmation that juries around the country, when confronted with the evidence, will come to the same conclusion."

The industry has long relied on the defense that smokers were well aware of any risks associated with tobacco. Industry lawyers argue that smokers knowingly and voluntarily accept such risks when they choose to light up.

For many years, the industry won every case that ever went to a jury.

But more recent suits, including the Miami class-action case, were based in large part on internal industry documents uncovered during lawsuits by state attorneys general. The documents suggest Big Tobacco knew how dangerous its products were but conspired within the industry to keep that information secret.

One significant aspect of the Miami verdict, analysts say, is that the jury found tobacco use to be addictive, a finding that somewhat diminishes the responsibility of smokers and heightens the responsibility of an industry that sought to make its products as widely available as possible.

"The tide has turned," says Kathleen Scheg of the advocacy group Action on Smoking and Health in Washington. "Before, you could say it was the smokers' choice. Now we say no, this stuff is really addictive," she says.

In such cases, Ms. Scheg says, "the greater responsibility is with the tobacco industry."

Industry officials declined to comment about the case, citing a gag order.

Richard McGowan, Boston College expert on the politics of tobacco, says the verdict will encourage others to sue, but it is too early to talk of the industry's demise. "A lot of people have written off the cigarette industry way before this."

Still, with this case coming seven months after the industry agreed to pay states more than $200 billion, antismoking advocates sense an important shift.

Joe Cherner of the advocacy group Smokefree Educational Services likens current cases to the asbestos litigation of the 1970s and 1980s, when after winning its cases for years, that industry began to lose some. Then it lost on a massive scale.

Now, the tobacco industry has begun to lose some cases.

In Florida, the jury verdict concludes only the first part of the trial. Having found the industry guilty of engaging in a massive fraud, jurors must now decide how much in damages nine representative smokers or their survivors should receive. (Later, if the case is upheld, any and all of the 500,000 Florida smokers who say they've been injured by cigarettes could file for damages.) The tab could total $200 billion or more in damage awards.

But others say the industry may well prevail during the second phase of the trial, which could last another three to five months. And some analysts say the verdict is not likely to survive an appeal.

"The industry expects on appeal that the very existence of this class action will be denied," based on past judicial precedents, says Martin Feldman, a tobacco analyst at Salomon Smith Barney in New York.

"I think it will be upheld on appeal," says Scheg. "But even if it isn't, we are going to see 10, 20, 30, or more of these suits and some of them are going to make it all the way."

The landmark Miami case was brought by two local lawyers, Stanley and Susan Rosenblatt, who won a $349 million settlement two years ago in a class-action suit for flight attendants claiming injury by secondhand smoke. The current case was filed in 1994.

The verdict marks another major setback for the tobacco industry. In March, a jury in Portland, Ore., ordered Philip Morris to pay $81.1 million to the family of a 40-year smoker whose death was attributed to lung cancer. A month earlier, a jury in San Francisco ordered Philip Morris to pay $51.1 million to a woman who was diagnosed with lung cancer after having smoked three packs a day for many years.

But it hasn't been all bad news for Big Tobacco. Last month, a Mississippi jury refused to award any damages in a $650 million secondhand-smoke lawsuit. In February, a Florida appeals court overturned a $1 million award to the family of a dead smoker.

Meanwhile, some legal experts warn that the tobacco cases may be sending the wrong message about individual responsibility.

If someone starts smoking after age 18, regardless of tobacco's addictive quality, "then the smoker is an adult and is responsible [for his behavior] in the same way they decide to ... sign contracts, have an abortion," argues Bob Levy of the Cato Institute in Washington. Pointing to recent lawsuits against gunmakers, he says, "Next will be alcohol, prescription drugs, fatty foods, and automobiles."

*Staff writer James N. Thurman contributed to this story.

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