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Smokeless-Tobacco Suit Settled

Courts: UST breaks ranks with cigarette makers, which have never settled an individual claim.

October 12, 2002|MYRON LEVIN | TIMES STAFF WRITER

Smokeless-tobacco giant UST Inc. has settled a lawsuit by a former customer who contracted tongue cancer, in what appears to be the first case of a tobacco firm agreeing to pay an individual for injuries allegedly caused by its products.

UST, of Greenwich, Conn., confirmed Friday that it had reached an unspecified "resolution" with Florida resident Michael L. McMullin, 29, whose lawsuit was set for trial in Jacksonville on Oct. 21.

Cigarette manufacturers have never settled a case with an individual smoker, knowing that it would invite thousands of new claims.

But analysts said UST did not face as great a risk in breaking ranks with the cigarette makers. They said the firm's litigation exposure is much less because there are many more smokers than smokeless users and because the incidence of lung cancer, heart disease and other smoking-related ailments is greater than the risk of oral cancer from smokeless-tobacco use.

But some analysts said it could encourage additional lawsuits against UST. Bonnie Herzog, tobacco analyst for Salomon Smith Barney, called it a "settlement in disguise."

In a conference call with analysts Friday, UST executives said they did not expect their decision to touch off a wave of filings. "If we believed there was a substantial pool of plaintiffs out there, then I think we might have come to a different decision," said UST Chairman and Chief Executive Vincent A. Gierer Jr.

Even so, the company was squeamish about using the "S" word ("settlement") to explain what had transpired. In their remarks to analysts and in a news release, company executives avoided the term "settlement," using words such as "outcome" and "resolution" instead. They would not reveal the amount or confirm that McMullin got a dime.

"This outcome provides for payment of attorneys' fees and other expenses," said Richard H. Verheij, general counsel and executive vice president of UST.

Norwood S. "Woody" Wilner, attorney for McMullin, said he was barred by a confidentiality agreement from outlining the terms. But Wilner noted that under Florida law, lawyers get a maximum of 40% of any settlement or verdict, indicating that McMullin will get a payment.

According to evidence in the case, McMullin first tried snuff in 1990, when a teammate on his high school baseball team offered him a dip of UST's Copenhagen brand. Later, he became a regular user of Copenhagen and Skoal, another UST brand.

In December 1998, he was diagnosed with cancer of the tongue and underwent radiation treatments and surgery to remove a portion of it. According to Wilner, he since has been cancer-free.

Over the years, cigarette manufacturers have faced more than 1,000 individual claims, along with massive lawsuits by state attorneys general and class actions on behalf of smokers and health insurance funds.

But since the early 1950s, only about 50 claims have been filed against smokeless-tobacco companies, UST executives said. They said a few claims are pending against them in West Virginia.

The last trial of a smokeless case was in 1986, when a federal court jury in Oklahoma City found UST not liable for the death of 19-year-old Sean Marsee.

Marsee, a track athlete who began dipping snuff at age 12, contracted cancer of the tongue that spread to his lymph nodes and jaw. He died in 1984.

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