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A few months ago Brobeck, Phleger & Harrison quietly decided to cross the line and take the plaintiff’s side in a contingency fee case against tobacco companies. This marked the first time that a large, traditionally defense-oriented firm had sided with an individual smoker. But San Francisco-based Brobeck — which is known for its product liability defense practice — has suffered a setback in its effort to diversify into this potentially lucrative realm. Last Friday, San Francisco Superior Court Judge David Garcia disqualified Brobeck from representing smoker Laurence Lucier in a suit against R.J. Reynolds Tobacco Co. and Philip Morris Inc. The judge agreed with RJR that Brobeck had a fatal conflict: It served as RJR’s chief counsel for smoking cases in Northern California for 27 years, from 1954 to 1981. Brobeck Managing Partner James Burns Jr. says the firm is considering an appeal and will likely make that decision this week. He says that in any event, Lucier’s case, which is slated for trial in December, will go forward. The plaintiff is also represented by San Francisco’s Wartnick, Chaber, Harowitz & Tigerman. Brobeck had labeled the defendants’ disqualification motion, which was filed in late August, “a cynical effort to derail the Dec. 10 trial date of a dying plaintiff.” It acknowledged in court papers that “long ago” it had defended RJR in several Northern California lawsuits alleging that smoking caused disease. But the firm said that RJR had already consented to and waived any adverse representation. In recent years, Brobeck pointed out, it had taken positions against the company in other litigation, and the tobacco maker hadn’t filed motions to disqualify it. In particular, for four years the firm has represented asbestos maker Fibreboard Corp. in suits against RJR to try to recoup damages paid to workers with lung ailments. RJR, represented by Jones, Day, Reavis & Pogue, countered that even if there was a waiver in the asbestos cases, there was no waiver here. Judge Garcia apparently agreed, although his three-sentence order does not set out his reasoning for the disqualification. Jones Day also noted the irony of Brobeck alleging in the Lucier case that RJR and its lawyers for years engaged in a conspiracy that “deliberately abused the litigation process,” when Brobeck itself was part of that allegedly abusive legal team. Brobeck joined the Lucier case last June, a year after it was filed by the Wartnick firm. The small plaintiffs’ firm had previously won a $51.5 million jury verdict for smoker Patricia Henley against Philip Morris in San Francisco. The court reduced the award to $26.5 million, and the case is on appeal. But with lead trial counsel Madelyn Chaber cutting back her workload, the firm was losing steam. As it happens, Brobeck’s entrance into the Lucier case came just a few weeks after a record-breaking verdict made plaintiffs-side tobacco work suddenly look more attractive. On June 6, a Los Angeles superior court jury returned a $3 billion punitive damage award against Philip Morris. The trial judge reduced those punitives to $100 million, but the award still stands as the largest for an individual smoker. In an interview before Judge Garcia’s ruling, Brobeck’s Burns denied that the firm was influenced to join the Lucier case by the huge award in Los Angeles. “As I recall, our decision was made before that verdict,” he says. (The firm, however, notified the defendants it was entering the case in a June 29 letter.) Burns explained that taking this case was a logical extension of the product liability work that Brobeck has done for years. The firm has defended clients in litigation over breast implants, asbestos and computer keyboards. Much of that experience was transferable to plaintiffs’ product liability work, he says. Burns also noted that the firm’s asbestos litigation gave it valuable knowledge about lung ailments. “It turns out there’s quite a relationship between the adverse effects from exposure to asbestos and smoking,” explains Burns. “Our lawyers really became experts in this area.” Susan Beck is a senior writer with The American Lawyer magazine, a New York-based affiliate of The Recorder and law.com.

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