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Two tobacco companies have filed a federal lawsuit against the state of California to try to stop an anti-cigarette campaign they say is biasing jurors against them. R.J. Reynolds and Lorillard tobacco companies want a judge to shut down advertisements by the state Department of Health Services that are funded by a 25-cent tax on cigarettes approved by voters with the passage of Proposition 99 in 1989. “Because the DHS … advertisements portray plaintiffs … as dishonest and unworthy of belief, the advertisements prejudice potential jurors with respect to the fact issues that underlie many such lawsuits,” according to the complaint. The ad campaign includes billboards, print ads and television commercials. One TV spot incorporates a now-famous congressional hearing where tobacco executives state they do not believe cigarettes are addictive. The campaign also features the travails of a cartoon crocodile labeled “big tobacco” who is upset about his public image. On Wednesday, California Gov. Gray Davis defended the state, pointing out that the ads have publicly vilified cigarette companies for 12 years. “I don’t see why they should worry about the jury pool now,” Davis said. M. Kevin Underhill of San Francisco’s Shook, Hardy & Bacon is leading Lorillard’s legal team. R.J. Reynolds has Todd Thompson of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, also in San Francisco. “We know from the state surveys that people who have been exposed to the ads hold less favorable views about tobacco companies,” Thompson said. Tobacco companies have not fared well in California courts. In 1999, a San Francisco jury reached the first tobacco liability verdict. An appeal court eventually upheld $26.5 million for a smoker named Patricia Henley. Since then, juries in other parts of the state have reached decisions that eventually could take billions out of tobacco industry pocketbooks. Even so, a 2002 survey by Recorder and law.com affiliate The National Law Journal found that 53 percent of respondents said they would vote for a tobacco company in a trial. That’s compared with the 28 percent who said they would tend to side with the plaintiff. Another 19 percent were unsure or refused to answer. In that survey, airlines, asbestos manufacturers and drug makers fared worse than tobacco companies. Besides the claim of a tainted jury pool, R.J. Reynolds and Lorillard allege due process and free speech violations and say campaign creators did not do any fact-finding before running the ads. Tom Dresslar, spokesman for California Attorney General Bill Lockyer, said tobacco companies have made several attacks on Proposition 99 over the years, mostly “under cover of darkness,” by trying to influence policymakers, he said. Lawyers from Lockyer’s office will likely defend the state once the suit, which was filed in U.S. District Court for the Eastern District of California in Sacramento, is served, Dresslar said. The case is R.J. Reynolds Tobacco Co., et. al. v. Diana M. Bonta, et. al., 03-659. Bonta is the director of the California Department of Health Services.

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