It Takes More Than Black Robes To Scare Tobacco Companies

When the Supreme Court decided on Mar. 25 to wade into the decades-long legal wrangle between cancer victims and cigarette makers, the tobacco industry was in a curious position. It had asked for the review--even though it had been victorious up to that point in the case.

Why? Because cigarette makers are confident they can weather any setback the justices hand them. The industry holds a 40-year record of never having paid out a penny to smokers. And while it believes that record isn't in imminent danger, it would like to resolve the nearly four dozen suits pending against it.

The justices will be scrutinizing the cigarette makers' chief line of defense. The case they'll hear was brought against three cigarette makers by the family of Rose Cipollone, a New Jersey smoker who died of lung cancer in 1983. In the original Cipollone trial, as in earlier cases, the tobacco industry argued that the warning labels required by a 1965 federal law bar any claims under state law that the companies are liable for the illnesses of smokers.

NO DAMAGES. If that view prevails, it will put a damper on new litigation. And even if the Supreme Court gives the go-ahead to claims made in state court, lawyers for ailing smokers will face an uphill struggle. Tobacco companies still will be able to argue that smokers who continue the habit assume the risks involved. Indeed, lawyers say, jurors often think smokers bring illness upon themselves. "They're still going to be tough cases," concedes Mike Davis, whose Austin (Tex.) firm has brought suits against the cigarette companies.

A Philadelphia case last year illustrates the difficulty smokers have in prevailing. The jury found cigarette makers liable for not warning a smoker of the dangers of their product before Jan. 1, 1966, when the labeling law took effect. But the jury awarded no damages, reasoning that, warnings or no, the plaintiff would have smoked anyway. Whether or not federal law preempts state laws, "juries are going to decide the cases on the basis of the facts presented to them," says David Kentoff, a Washington lawyer for Philip Morris Companies Inc.

The industry's strategy has its risks. Because of the preemption argument, many cases never get to trial. But if the court rules that suits based on state law can proceed, plaintiffs' lawyers could discover evidence that tobacco companies knew more about health risks than they have let on.

BUSY LOBBYISTS. Time and history are both on the industry's side, however. The slim chance of any payoff and the tortuous process of litigation have discouraged many suits. Consider the Cipollone case. Cipollone and her husband, Antonio, brought the case against Liggett Group, Philip Morris, and Loews's Lorillard unit. When she died in 1983, her husband pursued the matter. He died in 1990,and their son, Thomas, is carrying it forward.

The family has little to show for its effort at this point. A federal appeals court ruled in a pretrial hearing that the warning label barred the family from seeking damages for any injuries after 1965. Although a jury did award the family $400,000 for pre-1966 damages, the appellate court later overturned that verdict because the trial judge had given the jury incorrect instructions.

The cigarette industry isn't just trusting the courts. Tobacco companies are behind efforts in several states to revise product-liability laws, and they're poised to thwart a nascent move on Capitol Hill to overturn the rulings that have upheld the industry's airtight legal defense. Even expectations of success aren't prompting the industry to bet all of its chips on the Supreme Court.

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