Cipollone case fuels other lawsuits. Antismoking forces say Antonio Cipollone's victory over a tobacco company will make it easier to try other such claims. But industry attorneys disagree.
| Newark, N.J.
Tobacco Row will now run through more courtrooms. Litigation experts and lawyers currently suing tobacco companies believe that after Monday's historic jury decision that found a cigarette company partially responsible for a New Jersey woman's death, litigation will start to grow almost as fast as the tobacco plant itself.
The suits will accumulate ``because every time someone shows the path, it makes it easier for other people to follow,'' says Calvert Crary, a liability expert with a Wall Street brokerage house. Currently, only about 100 lawsuits have been filed, but Richard Daynard, head of the Tobacco Products Liability Project, expects that ``we can see hundreds more this year.''
Not so, claims the tobacco industry. To try to dampen legal enthusiasm, it is pointing to the relatively small $400,000 award that the plaintiff, Antonio Cipollone, received from Liggett Group. This compares to the more than $2 million in legal expenses of Marc Z. Edell, Mr. Cipollone's lawyer. Several law firms footed the bill hoping to make a profit on the award.
``One defeat won't make a lot of difference. We have a lot of other lawsuits. If we win a lot of those, other lawsuits will disappear,'' says Peter Bleakley, a lawyer for Philip Morris, one of the defendants in the Cipollone case.
But lawyers involved in other liability lawsuits against tobacco companies say this case represents a legal breakthrough. It is the first time tobacco companies' internal documents were used against the firms. The plaintiffs introduced evidence that Arthur D. Little, a consulting firm hired by Liggett, found that tars in four brands of its cigarettes caused cancer in laboratory animals. Those findings were never revealed to the public.
Retired federal Judge Miles Lord, says tobacco company vaults are full of other such important documents. Judge Lord, who is involved in a tobacco liability suit in West Virginia, says there are ``tens of thousands of documents that have never been disclosed.'' The evidence introduced at the Cipollone case, he says, ``is just the tip of the iceberg.''
Lord says there is a great deal of similarity between the tobacco cases and a Dalkon Shield case that he presided over. In the Dalkon case, manufacturer A.H. Robins kept plaintiff lawyers away from documents until Lord appointed an independent investigator to sort through the information. ``Once the documents came out, the company turned up its toes and rolled into bankruptcy,'' he recalls.
Few experts expect the tobacco industry to be financially squeezed by such verdicts. But the damage to the industry goes beyond the courtroom.
Matthew Myers, staff director of the Coalition on Smoking Or Health, says the ``publicity combined with the release of the surgeon general's report contributed to public education about health hazards of smoking.''
Surgeon General C.Everett Koop released a report May 16 that put tobacco in the same category of addictive drugs as cocaine and heroin. Edell persuaded the court to admit the report as evidence against objections from the tobacco company lawyers.
Alan Naar, a lawyer for Liggett, tried to minimize the report's impact. ``There is nothing in that report that hadn't been known before,'' he said.
The Cipollone case is also significant because it fuels congressional fires to investigate the tobacco industry. Rep. Thomas Luken (D) of Ohio says his subcommittee will hold hearings to see if the tobacco companies' behavior was improper. Rep. Henry Waxman (D) of California has indicated that he wants his subcommittee on health and the environment to determine if tobacco companies have lied to Congress about what they knew about smoking's health effects.
But it is the lawyers who expect to use the Cipollone decision the most. Michael Weiner, a lawyer with the Minneapolis firm of DeParcq, Hunegs, Stone, Koenig & Reid, says ``Edell laid the groundwork for everybody.'' And Texas lawyer Don Davis says the decision ``is important because it is the first jury verdict that says you're going to have to stand behind your product.''
Mr. Weiner is suing R.J. Reynolds on behalf of a deceased client who smoked Camel cigarettes for more than 20 years. In the Cipollone case, no evidence could be presented from after 1966, when the warning labels were put on the cigarette packs. But the Minnesota Court of Appeals has ruled that the warning label does not exempt companies from being sued. The tobacco companies are appealing this decision.
If Weiner were to win on this point, he could introduce evidence on what tobacco companies have learned about their product since 1966.
In some respects, Weiner has an even stronger case than the Cipollones. His client, John Forster, tried to stop smoking many times but failed. Mrs. Cipollone never tried to quit. Mr. Forster had been a problem drinker but had quit ``cold turkey.'' Since he had a family and a good job when he died, Weiner expects to ask for a settlement in the millions of dollars.
Although the Cipollone jurors did not find the tobacco companies guilty of conspiracy, some lawyers believe this charge will come up again. J.D. Lee, a lawyer in Knoxville, Tenn., says he plans to introduce documents from the Newark trial in another effort to prove such a conspiracy. Mr. Lee, who has lost one case and has one pending, says the Cipollone decision means he will take on more cases.
Both Liggett and Cipollone plan appeals. Liggett will appeal the liability verdict, and Edell will appeal the decision not to award damages.
Monitor intern Bonnie Shenkin contributed to this story.