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Judge Dismisses Landmark Tobacco Liability Lawsuit

November 6, 1992

NEWARK, N.J. (AP) _ A landmark lawsuit against the cigarette industry was dismissed Thursday at the request of the son of a woman who claimed smoking caused her fatal lung cancer.

Attorneys offered no explanation for the decision to drop the lawsuit. The woman’s son couldn’t be reached.

The U.S. Supreme Court in June sent the case back to federal court for retrial, saying a 1965 federal law requiring warning labels on cigarette packages didn’t shield the companies from all lawsuits based on state personal injury laws.

The 7-2 ruling also said smokers need to do more than prove that cigarette advertising and promotions tend to minimize the health hazards.

U.S. District Judge Dickinson R. Debevoise dismissed the case with the consent of the family of Rose Cipollone, said Alan Darnell, an attorney for the family.

Darnell wouldn’t elaborate, and Marc Z. Edell, another attorney for the family, wouldn’t comment.

A court clerk said the case was dismissed with prejudice, which means the lawsuit cannot be filed again. The judge’s order didn’t elaborate.

Edell had said earlier the Supreme Court ruling would likely generate more lawsuits against cigarette companies despite its ruling that smokers must convince juries they are not primarily at fault.

But Charles Wall, associate general counsel for Philip Morris Companies Inc. in New York, said Thursday the high court’s ruling made suing cigarette companies more time-consuming, complex and expensive. ″Those are significant reasons″ why the lawsuit might have been dropped, he said.

Wall said the company was pleased the litigation has ended.

The case began in 1983 when Mrs. Cipollone of Little Ferry sued the cigarette companies that made the brands she smoked for 42 years. She died in 1984 at age 58.

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 smoked.

The 3rd U.S. Circuit Court of Appeals overturned the award in 1990 and ordered a new trial. The appeals court also ruled that the 1965 warning label law shielded the industry from claims about the adequacy of health warnings.

Antonio Cipollone died in 1990 and the Cipollones’ son, Thomas, continued the appeal.

Richard Daynard, a law professor at Northeastern University in Boston and chairman of the Tobacco Products Liability Project, which encourages lawsuits against tobacco companies as a health issue, said dropping the Cipollone lawsuit would not deter similar claims against the tobacco industry.

The Supreme Court’s Cipollone decision ″is still the law of the land,″ Daynard said.

Scott Ballin, a vice president with the American Heart Association in Washington, said he was disappointed with the family’s decision. ″We hope other suits continue,″ Ballin said.

Daynard said he understood that Edell’s law firm wanted out of the case to concentrate on other things. Senior managing partner Henry Larner didn’t immediately return calls seeking comment.

Daynard also said Thomas Cipollone ″simply did not have the personal involvement in the case that his parents had.″

Cipollone, who lives in Grass Valley, Calif., has an unlisted telephone number and couldn’t be reached for comment.

The original judge in the case, U.S. District Judge H. Lee Sarokin, voluntarily withdrew from the retrial in September after an appeals court removed him from a similar case at the request of a tobacco company, which said he was biased.

Sarokin has defended as impartial his rulings over nine years of litigating the tobacco liability cases.