Cigarettes on trial: tobacco road is strewn with liability lawsuits

THE antismoking coalition calls it the ``second wave.'' It is talking about half a hundred new lawsuits being geared up across the United States which are aimed at placing liability on tobacco companies for the ill effects of cigarette smoking. Organizations like Action on Smoking and Health (ASH), Group Against Smoking Pollution (GASP), and the Tobacco Product Liability Project concede that their legal thrusts against the tobacco industry in the 1960s and '70s went up in smoke.

But they feel the time is ripe for the courts to put significant clamps on the tobacco companies and at least indirectly discourage cigarette smoking, particularly among youth.

Their aims are simple -- but perhaps not simply attained. They want to win at least one major ``wrongful death'' lawsuit against a tobacco company, thereby establishing clear liability for addiction and corporate responsibility for producing a ``dangerous'' product. Such a success, antismoking groups assert, could open the litigation floodgates across the land and result (they hope) in millions of dollars in damage awards. To pay for this, they reason, tobacco companies will have to raise the price of c igarettes -- perhaps to $2 a pack or more. Consequently, a healthy chunk of their market -- including cost-conscious teen-agers -- will likely be priced out of the commodity.

Cigarette manufacturers are girding for a real fight. Many are reluctant to make public statements in lieu of pending lawsuits. But David Fishel, a vice-president of the R. J. Reynolds Tobacco Company, insists that the responsibility for smoking or not smoking must continue to fall upon the individual. ``This controversy has been going on for decades,'' Mr. Fishel says. ``There has been extensive publicity, advertising, disclaimers. Smokers know the risks.''

The tobacco companies also stress that there is no hard evidence that cigarette smoking directly causes disease -- as charged by antismoking groups and others -- or that it is ``addictive.''

Predictably, their challengers feel different. They say there is ample medical and other evidence of this kind of harm.

They also point out that recent interpretations of product liability laws lift some of the burden of proof from plaintiffs.

Richard A. Daynard, a Boston lawyer and co-founder of the Tobacco Product Liability Project, insists that ``product liability law has moved beyond the issues of 20 years ago,'' when it was often necessary to show general harm to recover damages for an individual.

Mr. Daynard also stresses that the public mood has turned against smoking. Public-service campaigns, school programs, and community publicity focus on the detriments of using tobacco.

John Banzhaf III, ASH's executive director -- whose group has long championed the rights of nonsmokers to be free of smoke on the job, in restaurants, and in public buildings -- says that antismoking groups have become politically astute and are better equipped to take on the tobacco industry in the courts, in legislatures, and in the public forum.

Dr. Banzhaf also points out that in other areas -- namely gun control and drunken driving -- courts today are stressing ``responsibility'' on the part of sellers and distributors. A recent Maryland court ruling allows victims of shootings to recover financial damages from handgun sellers and manufacturers. And a New Jersey law assigns risk to tavern keepers and others who sell liquor to someone already intoxicated if that patron is subsequently involved in an auto accident.

``Guns and cigarettes are both inherently dangerous,'' ASH's chief says. ``But a gun has some legitimate use. Cigarettes have virtually none.''

One of the key legal issues now is the government-required warning on cigarette packages and tobacco advertising which clearly states the dangers of smoking. Until recently, manufacturers successfully argued that such disclaimers freed them from liability in individual cases.

Last fall, however, US District Judge H. Lee Sarokin of New Jersey said that even with this warning, cigarette companies were not exempt from all responsibility. Judge Sarokin also ordered tobacco companies to disclose confidential internal information they have gathered on the risks of smoking. Both rulings are being appealed.

Of late, the spotlight has been on Santa Barbara, Calif., where Melvin Belli, the famous trial lawyer, is pressing a case against tobacco companies which would hold them directly responsible for chronic diseases contracted by smokers. The death of a longtime chain smoker is at issue.

The prosecution is arguing that cigarette use is ``addictive'' -- not just habit forming. And it is stressing that smoking is not always voluntary, since young people get ``hooked on it'' early and some find it impossible to give it up. It is the reasoning of plaintiffs that tobacco companies act irresponsibly by enticing cigarette use through mass advertising.

The industry points out, as it has in previous cases, that it cannot be held solely responsible, since smoking is a voluntary act.

Recent product liability rulings across the US, however, have allowed consumers to recover cash damages, even when such consumers have contributed to their own conditions, when manufacturers could also be shown to be at fault. A Thursday column