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A tobacco company is not liable for the death of a man who contracted fatal lung cancer even though he smoked the company’s low-tar cigarette brand, a 12-person Philadelphia jury decided unanimously on Friday. In the case of Eiser v. Brown & Williamson, et al., a jury in Philadelphia’s Court of Common Pleas handed down a verdict for the defendants, Brown & Williamson Tobacco Corp. and its parent company, British American Tobacco (Investments) Ltd., in the wrongful-death suit. William Eiser died of lung cancer in December 1999 at the age of 54. He had owned a delicatessen in South Philadelphia. Eiser had smoked Carlton cigarettes for 28 years, switching to the brand because he was aware of the health risks of smoking cigarettes and saw advertisements labeling Carltons as low in tar. Carltons were originally produced by the American Tobacco Co., which merged with B&W in 1995, and are currently produced by B&W. Eiser, who was diagnosed with lung cancer in 1998, filed suit against B&W, British American Tobacco and several tobacco industry associations in March 1999. He was deposed by video before his death. His action was carried forward by his wife, Lois Eiser, the administratrix of his estate. Jury selection in the trial began on July 24, and the trial commenced on July 28, with Judge Gary F. DiVito presiding. The trial concluded Aug. 12. Only two parties, B&W and British American Tobacco, remained as defendants when the sides rested. “In order to prove their case, they had to show fraud on the part of B&W based on its advertising of Carltons,” said Bruce Sheffler, partner at Chadbourne & Parke in New York, who represented B&W in the case. “But the advertisement that Carltons were ‘lowest in tar’ was truthful.” Sheffler said that there were no settlement offers made prior to trial. George J. Badey III of Sheller, Ludwig & Badey in Philadelphia, counsel for the plaintiffs, said that his client had been aware of the dangers associated with smoking tobacco, but had been “trapped in the ‘low-tar lie.’” B&W’s “lowest tar” advertising claims for Carltons were substantiated by a Federal Trade Commission test rating Carltons low in tar and nicotine. Badey said that, according to evidence offered at trial, several features of the Carltons allowed them to receive low FTC tar and nicotine ratings while still delivering normal doses of those byproducts to the average smoker. He said that an expert testified that additives manufactured into Carltons caused the brand’s nicotine to freebase into vapor form, and that the vaporized nicotine escaped the notice of the FTC test. He also said that those additives, in part, contributed to increased tar levels in Carlton cigarettes. “We were quite disturbed with many of the court’s rulings in the case,” Badey said. “We firmly believe numerous reversible errors occurred, and that, at a minimum, a new trial will be awarded.” Badey filed post-trial motions Monday outlining his client’s grievances with a number of the court’s rulings in the case. He said that the court allowed the jury to consider the highest count relating to the defendants’ allegedly misleading advertising of Carltons, fraud, but not two lesser related counts, negligent misrepresentation and 402B misrepresentation. Badey reasoned that since the highest fraud count was offered for consideration, the dismissal for consideration of the lesser two counts was puzzling. In addition, Badey said, several witnesses central to his case were precluded by the court from testifying. That list included two medical experts, one of whom had contributed to past surgeon general’s reports, who were to testify about the history of the relationship between smoking and health; and the former brand manager for Carlton cigarettes, who was to offer evidence of the brand’s marketing strategies. Also precluded were depositions from American Tobacco’s former chief operating officer and former vice-president for scientific research, who were to testify that their former employer had failed to test ingredients and additives of Carlton cigarettes, Badey said. And finally, Badey said, the court would not allow testimony from famed tobacco whistleblower Jeffrey Wigand, B&W’s former vice-president of research and development, whose publicizing of B&W’s medical research secrets was the subject of the 2000 film “The Insider.” Wigand, who was to appear as a rebuttal witness, was to offer testimony that Badey said would have impeached the testimony of previous defense witnesses. But Badey took particular exception to the granting of a pretrial defense motion requesting that Lois Eiser’s complete medical records, including her obstetric charts, be produced for the defense’s perusal. That motion was granted by Judge Allan L. Tereshko. The defense argued that her medical records might have shown a warning from one of her physicians about smoking, thereby proving that William Eiser knew the risks related to tobacco use. Badey said that since William Eiser’s knowledge of the risks of smoking was not at issue, the motion was egregious. Tereshko ultimately modified his order to include Lois Eiser’s medical records from only the age of 18 and up. Badey is hopeful that the Eisers’ case has not ended with the trial jury’s verdict. “While the tobacco companies prevailed at this trial,” Badey said, “we are hopeful that a Common Pleas Court en banc panel — or ultimately the Superior Court or Supreme Court — will see fit to grant the appropriate relief so that the defendants will be held responsible for their actions.”

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