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Judge Withdraws from Cigarette Liability Case, Rebukes Judiciary

September 12, 1992

NEWARK, N.J. (AP) _ Judge H. Lee Sarokin, never one to shirk from speaking his mind, thinks that maybe the tobacco industry has too much power.

Enough power, that is, to influence the judiciary.

Sarokin announced Friday that he was removing himself from hearing the re- trial of a cigarette liability case after an appeals court had removed him from a similar case a week earlier. He lashed out at the appeals court decision, which granted a tobacco industry request.

″I fear for the independence of the judiciary if a powerful litigant can cause the removal of a judge for speaking the truth based upon the evidence, in forceful language that addresses the precise issues presented for determination,″ the federal judge wrote in a two-page statement issued Friday.

Sarokin defended his rulings over nine years of litigating the tobacco liability cases as impartial and unbiased. Both cases involved deceased smokers from New Jersey.

Sarokin’s decision came one week after the 3rd U.S. Circuit Court of Appeals in Philadelphia removed him from a liability case involving Peter Rossi, who died of lung cancer in 1982. His daughter, Susan Haines of Philadelphia, sued several cigarette manufacturers.

The appeals court also vacated Sarokin’s February ruling in that case, in which he said confidential tobacco industry documents showed cigarette makers intentionally lied about smoking dangers.

Petitioners representing the tobacco industry had appealed Sarokin’s ruling, saying the judge was ″so prejudiced against them″ they could not get a fair trial. They cited statements from his strongly-worded opinion.

The 3rd Circuit said Sarokin has been ″a distinguished member of the federal judiciary for 15 years″ and capable of being unbiased, but it ruled to assign another judge to preserve ″the appearance of impartiality.″

Brad Baldus, acting chief deputy for the 3rd Circuit, said the judges would not comment on Sarokin’s statement.

Richard Daynard, chairman of the Tobacco Products Liability Projects, which encourages lawsuits against tobacco companies, said Sarokin’s decision underscores the power of the tobacco industry.

″If somebody makes too much trouble for the tobacco industry, he gets knocked off,″ said Daynard, a law professor at Northeastern University.

Charles Wall, associate general counsel for New York-based Philip Morris Inc., said Sarokin’s action was ″appropriate and expected″ in light of the 3rd Circuit’s action.

Wall rejected claims by Sarokin and Daynard that the power of the tobacco industry played any role in the removal of the judge from the case.

Sarokin’s self-imposed removal ends his involvement in a case that began in 1983, when Rose Cipollone of Little Ferry sued the cigarette companies that made the brands she smoked for 42 years. She died of lung cancer at age 58 in 1984.

A federal jury in 1988 ordered Liggett Group Inc. to pay her husband, Antonio, $400,000 - the nation’s first monetary damage award against the industry. But the jury absolved Philip Morris Inc. and Lorillard Inc., which made other brands of cigarettes Mrs. Cipollone had smoked.

The 3rd Circuit overturned the award in 1990 and ordered a new trial. It also ruled that the 1965 warning label law shielded the industry from claims over the adequacy of health warnings.

The U.S. Supreme Court ruled in June that cigarette companies can be sued under state laws.

Antonio Cipollone died in 1990 and the Cipollones’ son, Thomas, continued the appeal. He lives in Grass Valley, Calif., but has an unlisted telephone number and couldn’t be reached for comment. Alan Darnell, one of the attorneys for the Cipollones, said he would have no comment.

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