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Do seven of eight defense wins for Big Tobacco in secondary-smoke cases in Florida state courts—with a lone plaintiff’s verdict chopped from $5.5 million to $500,000—reflect litigation that is going nowhere or the beginning of the plaintiffs’ learning curve? It depends on whom you ask. The eight cases are the first of about 2,650 individual nonsmoking flight attendants’ secondary-smoke cases pending in Miami-Dade County Circuit Court. These lawsuits will determine specific causation and damages stemming from a class action in the same court that established general liability against Big Tobacco in a February 1998 settlement, Broin v. Philip Morris Cos. Inc., No. 1991-49738-CA-01. David L. Ross, a senior trial lawyer in Greenberg Traurig’s Miami office who represented Lorillard Tobacco Co. in Broin and in at least three of the individual cases, including the industry’s latest win, said he does not think the underlying class action “says anything about the legitimacy of the claims. “I think what the verdicts have shown is that the medical science just does not support most of these claims,” Ross said. The prospect of blockbuster verdicts is unlikely for several reasons, Ross said. These reasons include: the plaintiffs claim no life-threatening conditions (there are very few actual cancer cases) and the Broin class action settlement provision that states there will be no intentional tort or punitive damages claims. “We’re not anticipating the verdicts to be large-were they to win another verdict,” Ross said. ‘Positive spin’ However, Norwood S. Wilner of Spohrer Wilner Maxwell & Matthews of Jacksonville, Fla., who represents class action name plaintiff Norma R. Broin in her individual case, Broin v. Philip Morris Inc., No. 2000-24131-CA-01, which has not gone to trial, dismissed the industry’s “positive spin” on its wins thus far. “We heard that before we tried the Carter case,” Wilner laughed. Grady Carter v. Brown & Williamson Tobacco Co., 778 So. 2d 932 (Fla. 2000), was the first primary-smoker case to win in Florida. Brown & Williamson paid Carter $1.09 million in February 2001. Pioneer anti-smoking advocate John F. Banzhaf III, a George Washington University Law School professor and executive director and chief counsel of Action on Smoking and Health, agrees with Wilner. “If you look at the long history of tobacco litigation, one out of eight is a hell of a lot better than we were doing in the primary [smoker] cases for so many years,” Banzhaf said. The evidence so far suggests that where primary smokers are 10 to 12 times more prone to pulmonary diseases than nonsmokers, nonsmokers exposed to cigarette smoke are less than half as likely to have contracted these diseases from smoke as from other sources, he said. This makes specific causation tough to prove, given the available science at this stage of the litigation, Banzhaf said. A reckoning? But a reckoning the tobacco companies may have yet to confront in this litigation is that “they can no longer blame the smoker” as they did in the primary smoking cases, Banzhaf said. He added that people exposed to secondhand smoke are victims who cannot be said to have “assumed the risk or been contributorily negligent.” Banzhaf agreed with plaintiffs’ lawyer Philip M. Gerson—who has been involved in four of the eight cases that have gone to trial—that the plaintiffs’ main challenge has been a lack of hard scientific data. William S. Ohlemeyer, Altria Group Inc. vice president and associate general counsel, like Ross, said that the defense has been winning cases because the science does not support the flight attendants’ claims. “It’s very easy to talk about these claims; it’s very easy to make allegations; but when the law requires you to prove them it becomes a bit more difficult,” Ohlemeyer said. But Gerson said this has more to do with a lack of research than the claims’ validity, adding that these diseases have not received research funding because they are not life threatening. In addition, because the health risks of secondhand smoke were unknown when the flight attendants were exposed, treating physicians who now tell juries they think it is an important factor in their patients’ illnesses had not diagnosed and noted it at the time in their charts, he said. This has created “a difficulty and an obstacle and something the cigarette companies have had success with in the courtroom,” Gerson said. These hurdles, combined with the tobacco companies’ resources, mean the plaintiffs have a big job ahead of them. But they hope they might win over juries in a case like Broin’s—a Mormon whose only exposure came in airline cabins. “In a case like that, maybe we could get the jury to make that inferential leap,” Banzhaf said.

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