Metropolitan News-Enterprise


Thursday, April 8, 2004


Page 1


C.A. Overturns $21 Million Award to Dead Smoker


From Staff and Wire Service Reports


The First District Court of Appeal yesterday overturned a $21.7 million judgment in favor of a cigarette smoker who died of cancer four months after the verdict was handed down.

Presiding Justice J. Anthony Kline of Div. Two said a San Francisco Superior Court jury, when deliberating Leslie Whiteley’s claims, should have been instructed that the tobacco industry was immune from liability between 1988 and 1998. In 1998, the California Legislature removed tobacco from a shielded class of products immune from suits.

Two years ago, the California Supreme Court ruled that tobacco concerns could be liable for harm they cause to smokers before and after the 10-year period, but not during it.

“All parties are entitled to have their cases decided by juries that have received correct instructions about the applicable law,” William S. Ohlemeyer, a vice president and counsel for Philip Morris USA, which was named in the suit along with R.J. Reynolds Tobacco Co., said.

The trial, concluding in 2000, is likely to go before another jury and any award would go to the woman’s surviving husband, Leonard Whiteley. Leslie Whiteley, of Ojai, was 40 years old at her death. She was ill during the trial and could not complete her live testimony, so her deposition was presented to the jury instead.

She told jurors that she began smoking in 1972, using her school lunch money to buy her first pack of cigarettes. She told the court she thought smoking was safe because companies promoted it and the government allowed it.

She tried to quit at age 15, not because of health concerns but to save money, she said. When she and her husband started their family, she said, they both tried to quit but she went through bad withdrawal symptoms. She had no idea that smoking caused health problems more serious than coughing or shortness of breath until the day she was diagnosed with lung cancer, she testified.

An expert witness testified that she was “highly addicted” to cigarettes.

The jury found Philip Morris and R.J. Reynolds negligent in their cigarette design and responsible for false and misleading statements and efforts to fraudulently conceal the dangers of smoking. It awarded $1.7 million in compensatory damages and $20 million in punitive damages, equally divided between the defendants.

The case was the first the tobacco industry had lost to a smoker who took up the habit after tobacco companies began labeling cigarette packs with a government-required warning. In 1966, the labels said smoking “may be” hazardous, and in 1969, the warning was strengthened to say it “is” hazardous to your health.

The tobacco companies had argued that Whiteley herself was to blame for her disease because she ignored the labels. Kline rejected the argument, citing evidence that the defendants had, for years, assured their customers that the alleged link between smoking and serious illnesses like cancer was unproven and that they were diligently performing their own research and would advise the public of any proven health risks.

“Like the trial court, we view the false assurances that defendants would keep the public informed of its findings regarding smoking and health and the manufacturing of a false controversy regarding the health effects of smoking to be affirmative misrepresentations, outside the preemptive reach of the [Federal Cigarette Labeling and Advertising Act of 1969.],” the jurist wrote.

 The panel did, however, throw out the plaintiff’s claim of negligent design. There was no evidence from which a reasonable jury could have concluded that any change in the way cigarettes were manufactured would have protected Whiteley’s health, the jurist said.

Whiteley’s attorney, Ted Pelletier, said he found at least one positive aspect of the appellate panel’s ruling.

“It validates Mrs. Whiteley’s fraud claim [that] but for this 10-year immunity, the fraud claims were correct,” Pelletier said.

Edward L. Sweda, senior attorney with the Tobacco Products Liability Project at Northeastern University’s School of Law, said that while his group was disappointed with the ruling, the decision does not undermine the effectiveness of tobacco litigation.

“Looking ahead, the strategy of suing tobacco companies remains a viable approach to plaintiffs in California and around the country,” Sweda said.

The case is Whiteley v. Philip Morris, A091444.




Copyright 2004, Metropolitan News Company