Trial to Test Secondhand Smoke Liability

MIAMI — Lawyers for the tobacco industry and 60,000 U.S. flight attendants are girding for the start this week of a historic trial that will test the industry’s liability for illnesses supposedly caused by secondhand smoke.

The case, known as Broin vs. Philip Morris, is the first to seek damages for bystanders supposedly harmed by smoke from other people’s cigarettes. It will also be the first tobacco case of any kind tried on behalf of a whole class of plaintiffs, where an industry defeat could bring damages in the millions--perhaps billions--of dollars.

At the same time, a defense victory in the long-awaited trial would boost the embattled cigarette makers while eliminating the threat of mass claims by a group of workers whose chronic exposure to tobacco smoke may give them the best chance of winning a passive-smoking case.

Jury selection is set to begin today in Dade County Circuit Court with administration of a lengthy questionnaire to about 250 prospective jurors. The trial is expected to last at least two months.

Because the claimants are nonsmokers, the industry for the first time will have to abandon its traditional defense that plaintiffs bear responsibility for their illnesses because they failed to heed health warnings.

While both sides have expressed confidence they will win, most legal and financial experts are predicting an industry victory, based on the difficulty of proving specific illnesses resulted from secondhand smoke. Even so, a study published two weeks ago linking secondhand smoke to increased risks of heart disease may boost the flight attendants’ case.

Filed in 1991 by the husband-and-wife legal team of Stanley and Susan Rosenblatt, the case is named for lead plaintiff Norma Broin, 42, a lifelong nonsmoker who was diagnosed as having lung cancer in 1989 after thirteen years as a flight attendant for American Airlines. She now lives in Virginia.

Broin, whose illness is in remission, said she hoped the case will “expose all the untruths” in industry statements on secondhand smoke.

Of the hundreds of thousands of flight attendants who dispensed pillows and snacks before smoking was banned on domestic flights in 1989, the Rosenblatts have estimated that as many as 60,000 have developed such ailments as cancer, heart disease, bronchitis and asthma from the smoke of airline passengers.

The trial is beginning against a backdrop of intense negotiations by tobacco representatives, on one side, and state attorneys general and private lawyers, on the other, who are seeking a sweeping settlement of the industry’s vast legal and regulatory problems.

The Broin case, however, is not expected to be affected by the settlement talks. No agreement appears imminent, and it would probably take months for Congress to approve any deal.

The issue of secondhand smoke is a key battleground between the industry and its foes.

In recent years, state and local governments have adopted thousands of laws restricting public smoking, based on the premise that secondhand smoke is not merely an annoyance but a serious health hazard. California bans smoking in virtually all workplaces.

In a potent endorsement of these public smoking curbs, the Environmental Protection Agency declared in 1993 that secondhand smoke causes lung cancer and is responsible for about 3,000 cases annually. In a pending lawsuit, tobacco companies have asked a federal court in North Carolina to vacate the EPA’s findings, contending that the agency cherry-picked scientific data to support a preordained conclusion.

Until now, injury claims involving secondhand smoke have been limited to workers’ compensation cases brought against employers over smoky workplaces. Results have been mixed, but none of the claims was defended by the tobacco industry.

Peg Seminario, director of health and safety for the AFL-CIO, said the Broin case could boost the trend toward smoke-free workplaces even if the industry prevails. “Any kind of suit like this . . . does help and push along toward reduced exposures in the workplace, and better warnings and additional information on products,” she said.

The Broin suit seeks compensatory and punitive damages from the five big cigarette makers and several industry research, lobbying and marketing organizations. According to the suit, their cigarette brands were unreasonably dangerous to flight attendants and other bystanders, who were never warned that secondhand smoke could endanger their health.

The lawsuit also accuses the industry of fraud and misrepresentation, claiming it has known but lied about the hazards of secondhand smoke.

The tobacco companies have enlisted at least 20 law firms to defend them, including their biggest guns. David Hardy, senior partner with Shook, Hardy & Bacon in Kansas City, Mo., and a seasoned defender of tobacco cases, will serve as lead trial counsel for industry leader Philip Morris Inc. and Lorillard Inc., the No. 4 cigarette maker. The R. J. Reynolds Tobacco Co. team will be headed by Hugh R. Whiting, a partner with the 1,200-lawyer firm of Jones, Day, Reavis & Pogue.

Among the witnesses listed, the plaintiffs are expected to call former U.S. surgeons general Jesse L. Steinfeld and Julius B. Richmond, and Dr. Ronald M. Davis, former head of the federal Office on Smoking and Health.

By the very nature of the case, the industry will be forced to abandon the defense strategy that has served it so well in the past.

Past tobacco trials invariably have pitted smokers or their survivors against the makers of the smokers’ favorite brands. Tobacco lawyers fixed jurors’ attention on the smoker’s knowledge of the risks and failure to heed warnings to quit.

In the Broin case, however, the purported victims cannot be accused of weakness or bad judgment. “The industry can’t use a blame-the-victim defense,” said Stephen Gillers, a New York University law professor.

Yet evidence of passive smoking’s risks is still evolving and is not as strong as that on active smoking. “Causation, which is really so clear in the cases being brought by smokers, is more problematic in a suit of this kind,” said Stanford University law professor Robert L. Rabin.

Plaintiffs recently gained new ammunition from a study of about 32,000 nurses suggesting that regular exposure to secondhand smoke markedly increases the risk of heart disease. The study, published in the medical journal Circulation, found the incidence of heart disease for those reporting regular exposure was 91% higher than for those reporting no exposure to passive smoke.

Peggy Carter, a spokeswoman for R. J. Reynolds, said the study’s methods were “very suspect” and its conclusions conflicted with other research.

A key question is whether jurors will see revealing documents in which industry figures appear to admit that smoking is dangerous and addictive. Most of these documents do not concern secondhand smoke, and tobacco lawyers are expected to fight their admission.

Stanley Rosenblatt said, however, that he will show the companies lied about the risks of smoking “to keep a fictitious controversy alive,” just as, he said, they later did about secondhand smoke.

The plaintiffs will first try to prove the generic case that secondhand smoke is harmful and that the industry is guilty of fraud. If they are successful, the trial will enter a second phase, in which jurors will consider whether the specific ailments were caused by secondhand smoke.