THIS week, the tobacco industry faces its toughest legal challenge when American Tobacco Company, a subsidiary of American Brands, defends itself in a tobacco liability lawsuit in Greenville, Miss. The lawsuit is a retrial of a suit brought by the widow and children of building contractor Nathan Horton. The previous trial ended in a hung jury and a mistrial.
What makes the retrial different is that American Brands faces a new judge who has already made some rulings favorable to the plaintiffs. In the last trial before Judge Gray Evans, the plaintiffs had to prove that the cigarettes were contaminated by pesticides. This time, Judge Eugene Bogan has ruled the case can be tried under the state's liability law.
``All we have to prove is that cigarettes are unreasonably dangerous - taking into account consumer expectations - and that they produced the lung cancer which killed Mr. Horton,'' says Don Davis, a lawyer representing Horton who died in 1987.
In another change from the first trial, Mr. Davis has received permission to show the jury the advertising that Horton would have viewed. ``Advertising sets the climate for what consumers' expectations should have been at the time,'' Davis says.
He and other plaintiff lawyers are more optimistic about this case because Mississippi liability laws are quite liberal. For example, if a jury finds that a plaintiff is partially to blame for his injuries, it can award only a percentage of the damages. The plaintiffs also don't need a unanimous verdict. Instead, they can win their case with a nine to three decision.
Roger Baker, a spokesman for American Brands. based in Old Greenwich, Conn., had no comment about the litigation.