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Cigarette Makers Sued : Liability--A Burning Legal Issue

August 05, 1985|PHILIP HAGER | Times Staff Writer

WASHINGTON — John M. Galbraith, a retired Santa Barbara insurance company administrator, smoked from age 19, consuming countless cartons of Camels, Winstons and other brands over a span of five decades. On occasion, he tried but failed to break his three-pack-a-day habit, lawyers for his family say. Even when he was finally stricken with cancer and severe emphysema, his wife, Elayne, caught him slipping off his oxygen mask to drag on a cigarette.

Galbraith is dead now, and his widow and three children have brought a wrongful death lawsuit against R. J. Reynolds Tobacco Co., which made the cigarettes they say killed him. The fault lies with the company, according to the suit, for failing to adequately warn of the potentially lethal consequences of smoking.

Was Physically Addicted

Galbraith was not to blame, the suit says, because he was not fully aware of the risks and was physically addicted to cigarettes.

The suit, expected to be tried in Santa Barbara this fall, is part of a new wave of about 30 product-liability and personal injury actions awaiting trial throughout the country in search of millions of dollars in damages against tobacco companies in behalf of dead or dying smokers and their families.

Twenty years ago, few such actions were being filed--and most of them never reached trial, let alone a favorable verdict for the plaintiff. So far as is known, not one penny has been collected from a tobacco company from such an action, in or out of court.

Law, Attitude Shifts

But a stunning legal turnabout may be in the works in the wake of shifts in the law and in public attitudes toward smoking--along with steadily mounting scientific evidence linking cigarettes and disease. Even one successful suit could eventually have far-reaching impact on the $60-billion-a-year tobacco industry, authorities say.

"Holding tobacco company stock, right now, is risky," says UCLA law professor Gary T. Schwartz, an expert on product-liability law.

At this stage, sweeping verdicts for plaintiffs are unlikely, in Schwartz's view. The most promising kind of case, he says, would be built around a severely afflicted smoking victim who became addicted at a young age, before he could make a mature, reasoned decision to assume the risk of smoking. But even a narrow ruling for a plaintiff could gradually be broadened over the years in other cases, Schwartz notes, with potentially "devastating" effects on cigarette manufacturers.

The tobacco industry, fighting back with batteries of lawyers, steadfastly maintains that there is still no conclusively established connection between cigarettes and disease. And in any event, it says, persons who smoke do so freely and thus assume any risk involved. Beyond that, industry spokesmen are saying little about their strategy or the potential impact of the upcoming courtroom battles.

"These claims are really not new--but some attorneys, for one reason or another, think that now's the time to bring them up again," says Alan Byrn of the Washington-based Tobacco Institute. "We don't have any idea what the outcome will be."

In the past, courts generally took the view that smokers voluntarily assumed the risks of tobacco and that the companies could not be held liable when there was doubt about the connection between smoking and disease.

But over the years, courts throughout the nation have grown steadily more receptive to all kinds of product-liability actions. Under the doctrine of "strict liability," plaintiffs can collect damages for injuries suffered from a dangerous product even if the manufacturer was not negligent. And in some instances, even a warning by the manufacturer may not be sufficient to deter liability if the warning fails to cite specific risks.

Faulty Product Claims

Tens of thousands of suits are being brought by persons claiming they were injured by a wide range of faulty products--asbestos, drugs, birth-control devices and dangerous toys, among others. Many are winning damage awards or favorable settlements out of court.

Meanwhile, the scientific evidence continues to grow implicating cigarettes as the cause of illness and death from cancer, heart disease and chronic obstructive lung disease such as bronchitis and emphysema.

Last year, Surgeon General C. Everett Koop asserted that cigarette smoking, as the "chief single avoidable cause of death in our society," was responsible for 350,000 fatalities a year from such maladies.

Dr. William Pollin, director of the National Institute of Drug Abuse, last fall called tobacco a "powerfully addictive drug," citing new evidence indicating tobacco is more addictive than either alcohol or heroin.

The changing legal climate and mounting medical evidence are combining with new public awareness of the hazards of smoking to make this the ideal time for a new high-powered campaign against tobacco companies, anti-smoking forces believe.

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