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Three South Florida attorneys have opened a new front in the legal wars against the nation’s tobacco industry. Adopting many of the same legal arguments successfully used in previous lawsuits against cigarette makers, they filed a proposed class action lawsuit Tuesday in Miami-Dade Circuit Court against the makers of Skoal, Copenhagen and other smokeless tobacco products. According to observers, the case is the first such proposed class action anywhere against the makers of smokeless products. The plaintiffs’ bar has had little success against smokeless tobacco companies. Indeed, the only case ever to go trial resulted in a defense verdict. The suit, which names as defendants five smokeless tobacco companies and an industry research group, was filed on behalf of six plaintiffs and all other Florida residents who have suffered harm as a result of putting a dip of chewing tobacco between their lip and gum. The legal claims include negligence, strict liability, fraud and misrepresentation, civil conspiracy, intentional infliction of emotional distress, and violation of Florida’s Deceptive and Unfair Trade Practices Act. According to the complaint, the use of chewing tobacco has caused a range of diseases, including cancer of the lip, tongue, esophagus and stomach. These diseases have resulted in, among other things, gross disfigurement, speech impediments, rotting teeth, mouth sores and the inability to salivate. The lawsuit claims the class of people in Florida who have smokeless tobacco-related illnesses includes more than 10,000 people. The companies being sued are UST Inc. of Greenwich, Conn.; Conwood Co. of Memphis, Tenn.; the Pinkerton Tobacco Co. in Richmond, Va.; Swisher International of Jacksonville, Fla.; Swedish Match North America of Richmond, Va. and a research organization called the Smokeless Tobacco Council. UST said the company has not been served with the complaint and would not comment until it sees the lawsuit. Attempts to reach the other companies were not successful. “This is more than a lawsuit, it is a cause for us,” said David Hagen, a partner at Hagen & Patterson in Miami who is also a regular user of chewing tobacco although not sick. “Smokeless tobacco is addictive, has serious health risks and is not a safe alternative to smoking. Yet, these companies pretend there are no risks.” Patrick Russell, of the Russell Law Offices in Miami, another of the lawyers bringing the suit, said he and his colleagues came up with the idea of suing smokeless tobacco makers three years ago when Miami lawyers Stanley and Susan Rosenblatt were in the midst of bringing their big class action lawsuit, known as the Engle case, against cigarette companies in Miami-Dade Circuit Court. “We thought cigarette companies’ liability in that case was the same as the liability with chewing tobacco companies,” said Russell, who also is working with John S. Patterson of Hagen & Patterson on the case. Indeed, the 10-count complaint levels many of the same claims made against cigarette companies. Among them: manipulating nicotine levels to make the products more addictive; aggressively concealing testing that demonstrated the dangers of chewing tobacco; and failing to properly warn consumers about the harm smokeless tobacco can cause. “The addiction to the use of the defendants’ smokeless tobacco products is a result and, a means to an end, that defendants desire and intended when they manufactured their products,” the complaint says. But while cigarette makers generally have been inviting targets, it is far from clear that smokeless tobacco holds promise. “I think it’s potentially an important case, but these guys will have to do a hell of a lot of work to bring a successful class action,” said Richard A. Daynard, director of the Tobacco Control Resource Center in Boston, who has followed tobacco litigation for many years. “They’re not wrong to say there are similarities, but there are a lot of blanks to fill in.” Those blanks include establishing that the plaintiffs’ illnesses were caused by smokeless tobacco and that the companies knew about the dangers of their products. Last month, after announcing the settlement of a single lawsuit brought by an individual claimant in Jacksonville, Richard H. Verheij, the UST executive vice president and general counsel, said, “No case is actively being prosecuted against the company.” The settlement terms were not disclosed. While litigation against cigarette makers filed by sick smokers has ground on for more than a decade, makers of smokeless tobacco largely have been ignored by the plaintiff bar. Only one smokeless tobacco lawsuit has gone to trial in the United States. That case, Marsee v. UST, resulted in a defense verdict in 1986. “It’s been on the radar screen, but it’s just been a blip,” said Daynard. One big reason is that it has not yet been established in court that smokeless tobacco causes cancer. At a UST news conference last month, Verheij said smokeless tobacco is different from cigarettes because “the overwhelming majority of studies do not report a statistically important association between smokeless tobacco use and oral cancer.” The three Miami attorneys, however, contend there are studies that demonstrate smokeless tobacco can cause cancer. They hope to be the first attorneys to convince a jury that there is causal link. The attorneys point to a 2000 Department of Health and Human Services study called the “Report on Carcinogens, 9th Edition,” which identifies spit tobacco as a “known human carcinogen” that is “known” or “reasonably anticipated” to cause cancer. Spit tobacco, Russell said, is the same as smokeless tobacco. Hagen said he started using smokeless tobacco when he was a wrestler in high school as an appetite suppressant in order to “cut weight.” Indeed, he said, several plaintiffs in the lawsuit began using smokeless tobacco while participating in sports like baseball, a game in which many star players over the decades have used chewing tobacco. One plaintiff in the case, a college baseball player, says he opted to attend a little-regarded National Intercollegiate Athletic Association school because the major college baseball programs, organized under the National Collegiate Athletic Association, ban the use of chewing tobacco. The “addiction to chewing tobacco was so strong, it impacted his choice of colleges,” according to the lawsuit. While none of the three plaintiff lawyers has any tobacco litigation experience, they have signed up the Miami Beach law firm Grover Weinstein & Trop, which has been deeply involved in tobacco litigation on behalf of flight attendants, to join the litigation. They say they also are looking for another law firm to join their effort. The lawsuit is modeled on the class action filed in Miami-Dade Circuit Court in 1994 by Miami attorneys Stanley and Susan Rosenblatt on behalf of pediatrician Howard Engle and cigarette smokers nationwide. That suit alleged that cigarette companies concealed nicotine’s addictive nature and that smokers were unable to stop smoking because of the addiction to nicotine. As a result, it was argued, the class developed a host of maladies including heart disease and lung cancer. In 2000, a jury awarded the class of Florida smokers the largest punitive damage award in U.S. history — $145 billion. The verdict is on appeal before the 3rd District Court of Appeal in Miami.

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