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Deliberations Begin in Closely Watched Tobacco Suit

Courts: Ex-smoker's case against Philip Morris is the first since a state Supreme Court ruling barred industry memos from 1988-'98 as evidence.

September 23, 2002|MYRON LEVIN | TIMES STAFF WRITER

A Los Angeles Superior Court jury is set to start deliberations today in a closely watched case brought against tobacco giant Philip Morris Cos. by an ex-smoker suffering from lung cancer.

Closing arguments were delivered Friday in the suit filed by Betty Bullock of Newport Beach, who began smoking in the 1950s at the age of 17, and was diagnosed with cancer in February 2001.

Bullock, who turns 64 today, primarily smoked Philip Morris' Benson & Hedges brand. She has accused Philip Morris of negligence, fraud and making a defective product.

The monthlong case is the first to be tried in California since a state Supreme Court ruling that said that smokers cannot present evidence of alleged deception based on industry documents created between 1988 and 1998, when a legislative ban on product liability suits against cigarette makers was in place. The ruling reduced only slightly plaintiffs' arsenal of incriminating industry documents, most of which were generated in the 1950s, '60s, and '70s.

Even so, legal and financial analysts are waiting to see if the new ground rules can help cigarette makers end their losing streak in California, where the three cases tried since the lawsuit ban was lifted all ended in multimillion-dollar damage awards for for sick smokers.

Damages in the three cases, all now on appeal, totaled $153 million. One of the three cases produced the largest jury award ever won by an individual smoker. Michael Piuze, the lawyer representing Bullock, was attorney for former Marlboro smoker Richard Boeken in June 2001, when a jury in Los Angeles County Superior Court ordered Philip Morris to pay him $3 billion in punitive damages and $5 million in compensatory. The trial judge later pared the punitive damages to $100 million, and Boeken, who suffered from lung cancer, has since died.

In his closing argument Friday in the Bullock case, Piuze displayed blow-ups of internal memos that he said showed Philip Morris had concealed the addictiveness of smoking, and had conspired with its rivals to give addicted smokers such as Bullock "a psychological crutch" to keep on smoking.

One of the memos, written in 1969 by a Philip Morris researcher, said: "Do we really want to tout cigarette smoke as a drug? It is, of course ... "

Another, written in 1972 by an official with the Tobacco Institute, an industry group, boasted that cigarette makers had used a "brilliantly conceived and executed" strategy of "creating doubt about the health charge without actually denying it."

"I represent the plaintiff is a drug addict. There's no two ways about it," Piuze said. "The defendant is a drug dealer. And there's no two ways about it."

All addicted smokers like Bullock needed "was a little rationale, a little psychological crutch," Piuze said. So "with lives in the balance, they decided to create doubts about the health charge without actually denying it." This, he said, is "the most classic example of fraud" there is.

But Philip Morris lawyer Peter Bleakley said that nothing the company did induced Bullock to start or keep on smoking.

"I acknowledge that Philip Morris made a lot of mistakes," Bleakley said. "I don't think there's any doubt about that now."

But he called the company's dubious conduct a distraction from the real issue of whether "this particular smoker in this case ... [is] entitled to recover money."

Even when Bullock took up smoking, "it was widely publicized ... that cigarette smoking could cause lung cancer and other diseases," Bleakley said.

She "knew that smoking was risky" but for years made no serious effort to quit, "and when she did make a decision to quit, she did quit even before" her cancer was diagnosed, Bleakley said.

The jurors first will decide whether to award compensatory damages. If they award damages and also find that Philip Morris engaged in malicious conduct, a second phase of the trial to determine punitive damages would follow.

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