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Tackling a pair of cases with billion-dollar implications, the justices of the California Supreme Court seemed ready to side with sick and dying smokers who say a state law immunizing tobacco companies doesn’t close the door on their claims. State legislators repealed that immunity by statute on Jan. 1, 1998, and gave smokers and their survivors the right to seek damages. But in the two cases before the high court Tuesday, tobacco companies prevailed in the trial courts by invoking the immunity clause. The primary questions facing the high court during oral arguments were whether the new statute applies retroactively to claims filed before Jan. 1, 1998, and to longtime smokers diagnosed with cancer and other ailments after that date. The justices, while seeming sympathetic to injured smokers, implied they might still have a hard time convincing them that the 1998 amendments to the 1988 immunity statute — California Civil Code � 1714.45 — could be construed retroactively. “As you know,” Justice Joyce Kennard told one plaintiff’s lawyer, “statutes only work prospectively” unless there is express statutory language indicating otherwise. In the cases at issue, Betty Jean Myers was diagnosed with lung cancer on April 8, 1998, while Edwin Brigham and Albert Pavolini were found to have the same disease in October 1996 and May 1997 respectively. Brigham and Pavolini are dead. Appellate specialist Daniel Smith of Kentfield, Calif., who represented two amici curiae siding with Myers, pointed to specific wording in the amended statute that he said indicated retroactivity. For example, he said, the statute stated there would be “no statutory bar” to claims against tobacco manufacturers by individuals who “have suffered” — not will suffer — smoking-related problems. Justice Marvin Baxter took up the cause at one point, asking plaintiff’s lawyer Madelyn Chaber, a partner in San Francisco’s Wartnick, Chaber, Harowitz & Tigerman, about language allowing claims against tobacco manufacturers “and their successors in interest.” “If intended to be prospective only,” he said, “would you expect to see that language in the statute?” Tobacco company lawyer Ronald Olson, a partner in Los Angeles’ Munger, Tolles & Olson, argued that none of the phrases noted by Smith and other plaintiffs’ lawyers measure up to the standards of express language as required by law. To reach retroactivity, he said, “One would have to imply additional words.” Smith, meanwhile, argued that tobacco manufacturers never had complete immunity from lawsuit. The 1988 statute, he said, conferred immunity only if consumers chose to smoke and did so knowing it was a hazard — and if manufacturers sold an unadulterated product. Manufacturers failed two of those tests, Smith insisted, because they added ingredients intentionally to make cigarettes more addictive and concealed information showing that smoking was deadly. Olson, however, defended the original statute, saying that a blanket immunity for tobacco manufacturers had been upheld by an intermediate appeal court in 1989 in American Tobacco Co. v. Superior Court, 308 Cal.App.3d 480. “For nine years,” he said, “that interpretation went forward undisturbed.” But Justice Kathryn Mickle Werdegar told Olson that she thought Smith had a good point that immunity stood only as long as the consumer voluntarily partook of a product he or she knew was inherently harmful. “To me, that sounds like a reasonable point of view,” she said, especially considering that smokers in the ’80s and earlier didn’t have the information available now. “That knowledge of the ordinary consumer has evolved considerably,” she said. “So how can that be read as an absolute immunity bar?” Chief Justice Ronald George jumped into the mix by asking H. Joseph Escher III, who represented R.J. Reynolds Tobacco Co. in the arguments, how a tobacco product with additives, such as nicotine and ammonia, can be considered pure and unadulterated. “Certain products are inherently dangerous and can’t be made safe,” said Escher, of San Francisco-based Howard, Rice, Nemerovski, Canady, Falk & Rabkin. “People know that cigarettes can kill you, that they are inherently unsafe.” Is there no difference, George continued, when a product that is moderately unsafe is made more dangerous? “You’re exposing to greater danger people using the product,” Kennard chimed in. At one point, Olson argued the seemingly contradictory point that while the 1998 amendments repealing the immunity statute should not be read retroactively, the original 1988 statute should be. “Obviously,” Chief Justice George said, “your argument is stronger for the 10-year period when immunity was provided. But does that apply to the pre-1988 period?” That gave Kennard an opportunity to later ask plaintiff’s lawyer Smith what he would think if the court made neither statute retroactive, which while precluding his client’s suit for the ’90s would allow her to sue for pre-1988 injuries sustained during 41 years of smoking. Smith said he didn’t like the idea of “carving out a 10-year period of immunity.” The court is expected to issue rulings in Myers v. Philip Morris Cos., S095213, and Naegele v. R.J. Reynolds Tobacco Co., S090420, within 90 days.

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