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Lawyers in Landmark Cigarette Case Sort Out Appeals Decision

January 8, 1990

NEWARK, N.J. (AP) _ A mixed ruling from a federal appeals court over a landmark smoker-death case drew a two-part chorus of victory Monday from tobacco companies and a man who claims cigarettes killed his wife.

The 3rd U.S. Circuit Court of Appeals on Friday overturned the nation’s first money damages judgment against the tobacco industry, removing the only blemish from their nearly 40 years of victory in such cases.

But the panel also sent back for trial a reshaped case that will likely put smoking itself in the dock; reinstated claims against two other tobacco companies; and perhaps deepened the well for potential damages.

Despite the outcome, the decision adds perhaps years more of legal wrangling in a 7-year-old case.

″For this case, it’s the lawyers’ unemployment act,″ said Donald J. Cohn, an attorney for cigarette-maker Liggett Group Inc.

As lawyers on both sides study the opinion, they are preparing for discussions with federal trial judge H. Lee Sarokin on the next step.

″Quite frankly, I think the opinion is terrific for the litigation generally,″ said Marc Z. Edell, the lead lawyer suing Philip Morris Inc., Lorillard Inc. and Liggett.

The companies made cigarettes smoked by lung-cancer victim Rose Cipollone, whose husband, Antonio, carried on the case that blames the companies for his wife’s death at 58 in 1984.

″It’s unfortunate that we had to sacrifice the verdict to get that kind of opinion. But for the big picture, it’s extremely helpful,″ said Edell.

After a four-month trial, the jury in June 1988 awarded Cipollone $400,000. Philip Morris and Lorillard, owned by Loews Corp., were absolved, but Liggett was found liable for violating advertising promises to Mrs. Cipollone.

A number of issues did not reach the jury because of rulings by Sarokin. Several of those rulings damaging to the cigarette companies were reversed by the appeals court.

The panel found that Edell should have been allowed to argue the ″risk- utility″ theory - which holds that if a product’s danger outweighs its usefulness, the manufacturer can be held liable.

When that argument is introduced at retrial, ″This will be the first time that a jury will actually make a determination as to whether or not cigarette smoking is something our society thinks should be around,″ said Edell. Philip Morris and Lorillard will also have to face this claim, broadening the potential for damages.

Edell said he would introduce evidence about the generally harmful effects on society, such as statistics on mortality, disease and the financial cost to businesses.

Two factors, though, may prevent the Cipollone case from breaking ground in risk-utility.

On Dec. 28, a Mississippi judge ruled in favor of such an argument. The case is expected to go to trial in April. And the New Jersey Supreme Court is also considering the issue on an appeal in a state case brought by Edell. If he loses, risk-utility would be out of the case, but the federal ruling would still help plaintiffs in other states.

Cohn said the risk-utility decision is not a boon to plaintiffs because the circuit court said a jury must also be convinced that the ″ordinary consumer″ wasn’t aware of the dangers of smoking.

Cohn said the opinion puts cigarette plaintiffs back at square one, and that it will only help evaporate similar lawsuits, which have dropped to below 60 from 150 in 1987.

Litigation analyst Calvert Crary, of Labe, Simpson & Co., downplayed actual numbers of cases.

Anti-tobacco lawyers have adopted the strategy of, ″You take 200 cases, throw’ em up against the wall and see which ones stick,″ he said.

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