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Cigarette Makers Sued : Liability--A Burning Legal Issue

August 05, 1985|PHILIP HAGER | Times Staff Writer

"The tide is changing very, very quickly," says Richard A. Daynard, professor of law at Northeastern University and co-chairman of the Tobacco Products Liability Project, a newly formed group in Boston providing expert witnesses, legal research and other assistance to plaintiffs suing tobacco companies.

Doubt About Propriety

"There's a new public consciousness that manufacturers of dangerous products should be held liable for the damage and injuries they cause," says Daynard. "Along with that, there is new doubt about the propriety of smoking. The notion used to be that smoking was the norm in society. Now it is understood as in some sense pathologic."

In the Galbraith case, the survivors are being represented by well-known San Francisco attorney Melvin Belli and Paul M. Monzione, a lawyer in the Belli firm. Belli was one of the first to bring a tobacco suit--and lose--back in 1960. Now, at 77, the veteran courtroom lawyer relishes the prospect of continuing a "crusade" against cigarette manufacturers.

"Through their advertising, they use every blandishment there is to get young people hooked on smoking--and then turn around in court and say they're not liable because the smoker assumed the risk," says Belli. "The name of their game is hypocrisy. More formally put, they are bleeping liars."

Belli is handling the Galbraith case without a fee, relying on volunteer expert witnesses to donate time and services and assuming other costs himself. The firm's share of any award or settlement will go to cancer research.

The suit was filed in 1982, naming Reynolds and a host of other defendants who made, packaged, advertised and sold cigarettes to Galbraith. It came two years after Belli asked a group of workers in hospices for the terminally ill about victims of squamous cell carcinoma at the juncture of the bronchus--a type of lung cancer associated with smoking. A nurse put the lawyer in touch with the Galbraith family.

Suit's Allegations

The suit charges that Reynolds and the other defendants knew or should have known from documented scientific findings that cigarette smoking is "lethal" and leads to cancer. Galbraith was addicted and thus could not freely assume the risk of smoking, the family's lawyers contend.

In response, attorneys for Reynolds, in court documents, acknowledged the company was "aware" of the controversy over cigarette smoking and lung cancer. But despite millions of dollars of research sponsored by the industry-backed Council for Tobacco Research, along with billions in research by the federal government, "it has not been scientifically established that cigarettes cause cancer," the lawyers said.

The company is expected to contend that Galbraith's decision to smoke--and to assume the risk--was his own, freely made choice. The company will probably argue that Galbraith was well-informed and well-educated--he held a master's degree--and would have been fully aware of the pros and cons of the smoking debate.

In defending themselves in court, attorneys for tobacco companies are likely to question studies showing statistical associations between smoking and disease. They will cite data showing that 90% of all smokers do not get lung cancer and that 15% of those who do get it are nonsmokers.

Companies' Strategy

In response to the charge that smoking is addictive, the companies will probably marshal data showing that 35 million smokers have quit. Company lawyers will also contend that the warnings printed on cigarette packages, combined with volumes of available data about smoking, provide adequate warnings--warnings that hold up despite the millions of dollars the industry spends on advertising.

Along with the California case, other suits are under way in New Jersey, Massachusetts, Tennessee and West Virginia, with actions in Georgia and Texas expected soon, according to the Tobacco Products Liability Project.

In a case in federal District Court in Newark, N.J., the defendant tobacco firms--Liggett Group Inc., Philip Morris and Loews Theaters, the successor to P. Lorillard Inc.--have suffered two significant setbacks in pretrial proceedings. The case was brought by Rose Cipollone and her husband before she died of lung cancer last year at age 58. The woman started smoking at age 16 and for most of her adult life consumed more than a pack of cigarettes a day, according to her attorneys.

Last summer, lawyers for the defendant firms argued that the health warnings on cigarette packs required by the federal government since 1966 protected them from liability. But U.S. District Judge H. Lee Sarokin held that the warnings represented only a legal "minimum"--and that the plaintiffs were free to try to show a jury that the warnings should have gone further in pointing out the risks of smoking. The judge said the plaintiffs could try to prove that the defendants had tried to undermine the warnings with huge advertising campaigns and public statements minimizing the risk of smoking.

Evidence Disclosure

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