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More Anti-Tobacco Verdicts Forseen

February 12, 1999

SAN FRANCISCO (AP) _ California may provide fertile ground for more tobacco liability suits, analysts said after jurors here punished Philip Morris with a record $51.5 million damage award for deceiving a sick smoker.

The jurors _ including three smokers _ went out of their way during deliberations to make the company suffer for concealing what it knew about the links between cigarettes and cancer, foreman George Loudis said Thursday.

``One woman said she contemplated $1 billion. I told them this wasn’t the real world,″ said Loudis, noting that the plaintiff had only asked for $15 million. ``I mean the numbers just flowed out of their mouths.″

The jurors were clearly acting out of ``passion and prejudice,″ said Bill Ohlemeyer, an attorney for Philip Morris Cos. He predicted that the award would be overturned on appeal, like several verdicts recently in other states.

Because of the size of the award to Patricia Henley, a former three-pack-a-day smoker with inoperable lung cancer, analysts predicted a wave of lawsuits and ever-higher penalties will follow.

``I think the dam is cracking,″ said Dr. Stanton Glantz, a medical professor at the University of California, San Francisco, whose 1996 book, ``Cigarette Papers,″ uncovered tobacco industry documents many lawyers have used in their cases.

The award _ $50 million in punitive damages and $1.5 million for Ms. Henley’s pain and suffering _ is the first in California since the state repealed a 1987 law that banned smokers’ lawsuits. The ban, which was based on the idea that risks of smoking were well known, ended dozens of lawsuits at the time.

The landscape has since changed drastically. Lawyers in the more than 850 pending lawsuits against tobacco companies have warehouses full of incriminating industry documents at their disposal, thanks to the state attorneys general who have obtained $246 billion in settlements from cigarette makers over the costs of treating smokers.

Californians are particularly aware of tobacco litigation after a decade of antismoking ads paid for with a 25-cent-a-pack hike in the cigarette tax. The billboard and television campaign has featured a woman who smokes through a hole in her throat after losing her larynx to cancer, and more recently, men whose cigarettes fall limp, suggesting a link between smoking and impotence.

Smokers have a particularly hard time in San Francisco, where juice bars are popular and police have begun ticketing people who light up in bars.

``The truth is out there now,″ Glantz said. ``The sheer magnitude of all the lying by the industry, all the covering up by the tobacco companies, has just permeated society.″

Still, all this doesn’t necessarily translate into a greater possibility of success in the city’s courtrooms.

``This is a place where people are more geared to health, but the flipside is that everyone here now knows how dangerous smoking is,″ noted Ms. Henley’s attorney, Madelyn Chaber.

Tobacco companies consider that a key defense _ that given decades of warnings about smoking, smokers alone are responsible for their health problems.

``That’s the irony of this jury’s verdict,″ Ohlemeyer said. ``California, even before other states and the federal government, back in the 1950s, had antismoking programs. It’s hard to believe that ordinary people weren’t aware of the risks of smoking.″

Ms. Henley, who sued in San Francisco because she smoked her first cigarette at a high school dance there at the age of 15, quit smoking just two years ago at 50 after she was diagnosed with tobacco-related small-cell carcinoma.

``Philip Morris says over and over, ‘Well, you saw the warnings,’ and they’re right,″ Ms. Henley acknowledged Thursday. But she says she never understood how dangerous cigarettes were until a friend brought her a newspaper article listing the potential carcinogens that appear in cigarettes.

``They’re putting so much stuff in it that it has become a lethal poison,″ she said.

Chemotherapy and radiation put her cancer in remission, but forced her to give up her drain-cleaning business, so she’s been out of work since April, getting by in the Southern California town of Eagle Rock on a monthly $487 disability check.

Only three other times have juries awarded smokers damages in health claims against tobacco companies, and all of them have been overturned on appeal. The largest previous award was $1 million awarded to the family of Roland Maddox, who died in 1997 of lung cancer after smoking for 50 years. A Florida appeals court threw out that verdict earlier this month.

But if Ms. Henley’s award stands up, she wants none of the punitive damages for herself. Instead, she plans to use it ``to spearhead something here in California that will educate children about the dangers of smoking.″

``This was never going to be about the money,″ she said. ``There’s something wrong about taking money that was made by killing people.″

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