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Tobacco Giant, in a Shift, Pays Victim

A $2-million settlement in a fire case is a break from Philip Morris' policy of not yielding on individual claims. More suits could result.

October 02, 2003|Myron Levin | Times Staff Writer

CLEBURNE, Texas — Breaking with long-standing practice, tobacco giant Philip Morris has paid $2 million to settle the case of a child who suffered disfiguring burns in a fire allegedly caused by a smoldering cigarette.

The agreement represents a breakthrough for plaintiffs after more than 20 years of fruitless litigation over cigarette fires. It also marks the first time that Philip Morris, the top U.S. cigarette maker, has agreed to pay damages in a personal injury case of any kind.

Mindful of the fate of the asbestos industry, cigarette makers have long refused to settle personal injury claims, fearing it would invite a tidal wave of suits. Philip Morris said its settlement in Texas did not signal a tactical shift, but industry foes said news of the agreement probably would attract more suits.

The settlement, reached secretly in May, resolved a nearly nine-year legal battle over responsibility for injuries to Shannon Moore, who was 21 months old and asleep in her car seat when her mother's parked Buick erupted in flames. She was burned over 77% of her body and had to have all her fingers amputated. She also lost her hearing from prolonged use of antibiotics to fight infections, and now, at age 13, has limited ability to speak.

In the suit filed in state court here, lawyers for the girl blamed the fire on the defective design of a Marlboro 100 cigarette, which like other brands is intentionally made to burn down to the filter even when not being puffed. The lawsuit claimed that the child's mother, Shelly Moore, inadvertently allowed the cigarette to fall on the car seat, where it continued to smolder after she got out of the car.

Philip Morris contended that there was no proof a cigarette caused the fire, and that no matter the cause, Moore was to blame for leaving her child unattended.

The company settled after several failed attempts to get the case dismissed.

When the agreement was reached on May 6, Philip Morris insisted on a secrecy clause barring either side from disclosing why the case had been dismissed. After The Times learned of the settlement, the company waived the confidentiality provision.

Lynn Grisham, Shannon's lawyer, said the settlement provided "money today for a minor plaintiff who needed it terribly."

"While it's not enough to take care of the injuries she had, we were able to do away with the potential for lengthy appeals," he added.

Shelly Moore could not be reached for comment.

Tobacco companies in the past have reached some eye-popping settlements, agreeing to pay $246 billion to the states to dismiss lawsuits filed by attorneys general. But none of the money was compensation for individuals claiming smoking-related injuries.

William S. Ohlemeyer, vice president and associate general counsel of Philip Morris USA, said the Altria Group Inc. subsidiary and three of its rivals last month made a negligible payment of $800 -- $200 apiece -- to resolve a flight attendant's claim of injury from secondhand smoke. "If you wanted to be technical, that was a settlement," Ohlemeyer said in an interview. But he acknowledged that the Texas case produced the first settlement -- and the only substantial one -- ever paid to an individual by the firm.

Ohlemeyer said the deal did not herald a shift in legal strategy. "In product liability litigation ... our policy has been to defend cases," he said.

The Moore case was a "unique situation where we had an isolated opportunity to resolve a matter without trial," he said. That does "not prevent us from defending other cases in other places in the future, which is what we intend to do."

Ohlemeyer declined to elaborate on what made the case unique. However, the Johnson County district court in Cleburne, about 30 miles south of Fort Worth, has a reputation for being friendly to plaintiffs. Pre-trial motions by Philip Morris lawyers reflected their concern over how jurors might react to photos of the badly injured girl.

Richard Daynard, a Northeastern University law professor and head of the Tobacco Products Liability Project, an anti-smoking group, said news of the settlement should encourage more lawsuits. Despite some notable successes, he said, most plaintiffs' attorneys won't touch tobacco cases because of the industry's pledge not to settle and to appeal losses to the bitter end.

"This proves that they will settle, and I think it should cause plaintiffs' lawyers to rethink their aversion to bringing tobacco cases," Daynard said.

Andrew McGuire, executive director of the Trauma Foundation at San Francisco General Hospital and a top activist on the issue of cigarette fires, said he has long considered burn cases to be "the Achilles' heel of the tobacco industry ... because there's no way they can get around the fact that innocent children are burned and killed in these fires caused by their product."

"Finally having the first settlement signals to me that we're going to have a rash of these [lawsuits] happening in the future, and it's about time," McGuire said.

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