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The tobacco industry is escaping some legal fires in the courtroom involving secondhand smoke litigation. Parents have won secondhand smoke claims in child custody disputes. Prisoners have won civil rights claims over exposure to secondhand smoke. And employers and property owners have been successfully sued over secondhand smoke exposure. The tobacco industry, however, has escaped liability in 10 of 11 suits � the bulk of those involving actions filed by flight attendants � since 2001. Last month, the industry racked up its latest victory in a series of lawsuits involving flight attendants who alleged that they developed cancer due to secondhand smoke on airplanes. The case was filed by a mother who claimed that her flight-attendant daughter developed lung cancer and died due to exposure to secondhand smoke on airplanes. Menchini v. R.J. Reynolds, No. 2000-20916-CA-01 (Miami-Dade Co., Fla., Cir. Ct.). The Menchini case was the ninth flight-attendant case to go to trial since 2001. Juries have ruled in favor of the tobacco industry in seven of those cases, although a judge ordered a new trial in one of those cases. Another went against the industry, and yet another ended in a mistrial and was eventually dismissed. “We are seeing increased victories . . . but the tobacco companies are the defendants here and they are certainly much more vigorous in their defense tactics than the defendants in the other types of secondhand smoke lawsuits,” said Edward Sweda Jr., a senior attorney with the Tobacco Products Liability Project at Northeastern University School of Law in Boston. Far from over Sweda, who has tracked secondhand smoke lawsuits for more than 20 years, said the secondhand smoke fight with the tobacco industry is far from over. There are potentially hundreds more flight-attendant lawsuits awaiting trial, many of them stemming from a 1997 class action settlement that gave about 60,000 flight attendants the right to sue tobacco companies individually, Sweda noted. Broin v. Philip Morris, 641 So.2d 888 (Fla. 3d Ct. App.). One Weston, Fla., law firm alone, Weinstein & Weinstein, has more than 300 flight-attendant cases still pending. “There are still many cases in the pipeline,” said Rhonda Weinstein of Weinstein & Weinstein, who in 2002 secured the only plaintiffs’ victory in a flight-attendant case � a $5.5 million verdict on behalf of a flight attendant who claimed that secondhand smoke on airlines caused her breathing problems. The verdict was later reduced to $500,000. French v. Philip Morris Inc., 897 So.2d 480 (Fla. 3d Ct. App. 2004). Sweda, meanwhile, believes that the odds for beating tobacco companies are likely to increase in the near future given the growing popularity of anti-smoking laws, which are popping up everywhere. He said the public in general also is becoming more aware of the dangers of secondhand smoke. “Over the years, judges and juries have become more aware of how hazardous secondhand smoke truly is,” Sweda said. “More lawsuits will go to trial, and some will go for the plaintiffs. Some will go for the defendants.” Meanwhile, lawyers for the tobacco industry argue that science is on their side. “A total of 11 secondhand smoke cases have been tried against the tobacco industry, and we are 10 and 1 � I think the numbers speak for themselves,” said Jonathan Engram of Womble Carlyle Sandridge & Rice’s Winston-Salem, N.C., office, one of several lawyers who has represented R.J. Reynolds in flight-attendant cases. Carlyle said the tobacco companies are winning secondhand smoke lawsuits because of scientific evidence. In the flight-attendant cases, he said, evidence was presented that showed lung cancer rates for flight attendants were no greater than they were for the general public. In fact, he asserted, they were lower. “When we present the scientific evidence, the jury then gets the complete picture and we win these cases based on the scientific and medical evidence,” Engram said. In the latest case filed by the mother of a flight attendant who died from lung cancer, he said the defendants argued that the woman did not die from lung cancer, but rather from ovarian cancer that ran in her family. A motion for a new trial is pending in that case. Benjamine Reid of Tampa, Fla.-based Carlton Fields’ Miami office, who was the lead lawyer for R.J. Reynolds and Brown & Williamson in the Menchini case, said the flight-attendant cases are not about whether second-hand smoke causes illness. Rather the question is: Does secondhand smoke cause illness in a particular environment, in this case an airplane? The answer is no, said Reid, who convinced the jury in the Menchini case that the amount of smoke in the aircraft was not enough to make someone sick, “and there are a number of studies to support this conclusion.”

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