Barbara Izzarelli was in her early teens in the 1970s when she began smoking Salem cigarettes. She was soon hooked by the nicotine. She smoked heavily every day -- all day -- for more than 20 years.
In 1996, at age 36, she developed larynx cancer. The following year she underwent a total laryngectomy. That was followed by radiation and chemotherapy treatments. The Norwich, Conn., woman can no longer breathe through her mouth or nose; she uses a tube in her throat. Her diet consists of soft foods like pudding and mashed potatoes.
Last week, she became a footnote in legal history. A federal jury in Bridgeport, Conn., awarded her $8 million in what is believed to be the first successful product liability lawsuit in Connecticut by an individual plaintiff against a tobacco company.
The total could leap to as much as $24 million if U.S. District Judge Stefan Underhill decides to award punitive damages in a subsequent hearing.
David Howard, a spokesman for R.J. Reynolds, said the company planned to appeal the verdict. "We're disappointed in the decision in this matter," said Howard. "We have several grounds for appeal and we are confident in our defenses going forward."
For decades, claims brought against tobacco companies on behalf of individual smokers who developed cancer and chronic obstructive pulmonary disease went nowhere. But in the past decade, as investigators unearthed documents indicating that tobacco companies targeted minors in their marketing, "the pendulum has shifted" in court, said one tobacco litigation expert.
YOUTH APPEAL
Izzarelli's lawsuit was a products liability claim. Her lead attorney, David Golub, of Stamford's Silver, Golub & Teitell, claimed that R.J. Reynolds continued to sell its products even after there was widespread knowledge that smoking could cause cancer.
Specifically, the complaint alleges that R.J. Reynolds stated in 1954 that, if someone could prove a specific ingredient in cigarettes caused cancer, it would remove that ingredient. Golub argued that even after the cancer link was established that R.J. Reynolds did not alter the ingredients of its cigarettes.
Golub also offered evidence that R.J. Reynolds had collected and analyzed information regarding the smoking habits of youths as young as 12. And he contended that in the 1970s, after young smokers were attracted to flip-top boxes in which Philip Morris' Marlboro cigarettes were sold, R.J. Reynolds developed new products to appeal to 14- to 20-year-olds. Golub further argued that those cigarettes were sold in popular teen hang-outs and at reduced prices.
"Smokers are entitled to show they were the victim of illegal marketing," said Golub. "I thought this was a case that could show that and other people would be encouraged to bring cases." Golub has already filed two other cases against tobacco companies.
Howard said the R.J. Reynolds' legal team, led by attorney Mark Belasic of the national firm Jones Day, was not provided with a full opportunity to assert "a medical defense" that it was improbable that the cigarettes caused Izzarelli's illness. Another aspect of the appeal, said Howard, would be to contest the admission of evidence regarding youth marketing.
"[The judge] allowed all youth marketing evidence despite the fact that, before trial, one of the plaintiff's claims was dismissed because there was no evidence that the plaintiff was affected by any quote, unquote youth marketing," said Howard.
The trial lasted from April 27 until May 26. The jury needed about a day to reach its decision. The panel didn't completely absolve the plaintiff. The total verdict was $13.6 million, but jurors said Izzarelli was 42 percent at fault for smoking all those Salems.
MASTER SETTLEMENT
One reason why smokers -- and plaintiffs attorneys – have been hesitant to file similar lawsuits is the daunting prospect of a long legal battle. Barbara A. Izzarelli v. R.J. Reynolds Tobacco Co. was first filed in 1999.
One national expert says that the tobacco companies have been quite successful in "keeping these cases out of the courtroom." Dr. K. Michael Cummings, of the Roswell Park Cancer Institute in Buffalo, N.Y., is often asked to testify as an expert witness in tobacco litigation nationwide. Cummings, who testified in the Izzarelli case, said tobacco companies never lost a case nationally from the 1950s into the mid-1990s.
He said there was a shift following the Tobacco Master Settlement agreement in 1996 between the four major U.S. tobacco companies and 46 state attorneys general. The tobacco companies, including R.J. Reynolds, agreed to pay the states $206 billion.
Cummings said that among the 16 million pages of documents obtained from the tobacco companies was evidence of a strategy to get minors hooked on cigarettes. He said that opened the door for more successful claims by plaintiffs.
Still, Cummings said, it's been rare for a lawsuit to go to trial, especially in the Northeast. He said there have been a few plaintiffs' verdicts in California and New York. Massachusetts has a case forthcoming. The hotbed of tobacco litigation remains in Florida. "There are cases going on every day," said Cummings.
In late May, R.J. Reynolds there was ordered to pay $30 million to the widow of a Florida man who started smoking as a teen and eventually died of lung disease. The case stemmed from a class action that was ultimately decertified. Now each case is being brought separately, and 16 of 19 have ended with plaintiffs' victories.
In Connecticut, previous litigation involving tobacco companies has pertained to the national settlement and subsequent disputes over payments, said attorney John F. Conway, whose firm, Loughlin FitzGerald in Wallingford, has represented Philip Morris. The settlement ended claims against tobacco companies by states that alleged they were incurring higher Medicaid costs due to smoker-related illnesses.
But the national settlement did not completely block lawsuits by individual smokers. Attorney Golub said his recent victory should dispel the notion that only in Florida can plaintiffs' attorneys win claims against the tobacco companies.
Golub added that after last week's verdict, Izzarelli, who will soon turn 50, was "numb."
"She's very disabled, limited eating, breathing, talking," said Golub. "On the other hand she's a remarkable woman to overcome these health problems and lead a normal life as much as she can."
