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US: Tobacco Trial Opens in Florida, First of Many Suits

by Associated PressWall Street Journal
February 3rd, 2009

The first of about 8,000 lawsuits blaming the health problems and deaths of Florida smokers on tobacco companies went to trial Tuesday, more than two years after the state Supreme Court threw out a record $145 billion class-action verdict.

The high court in 2006 rejected the punitive damages awarded by a jury as excessive, but left in place the case's conclusions that tobacco companies knowingly sold dangerous products and concealed the health risks of smoking for years. But the court also ruled that smokers or their survivors must prove their cases individually.

Elaine Hess, widow of 40-year smoker Stuart Hess, is the first of those plaintiffs to go to trial. Because of the previous findings on industry liability, the key to the case is proving whether her husband was addicted to cigarettes made by Richmond, Va.-based Philip Morris, a unit of Altria Group.

Hess attorney Adam Trop told a six-person jury that Stuart Hess, who died in 1997 of lung cancer at age 55, smoked about two packs of cigarettes a day and tried numerous times to quit. Mr. Trop said medical and other evidence shows that Mr. Hess became addicted to nicotine in the mid-1950s, long before the hazards of smoking were widely known outside the tobacco industry.

"Stuart Hess did not choose to become a lifelong customer of Philip Morris," Mr. Trop said. "They made that choice for him."

Philip Morris attorney Kenneth Reilly said there's no longer any dispute that cigarettes can cause lung cancer or that smoking is addictive. But Mr. Reilly said there is ample proof that Mr. Hess wasn't clinically addicted, that he was able to quit smoking at various times and that he knew the risks of smoking as a young man.

"There is no question Mr. Hess smoked a lot of cigarettes over a long period of time," Mr. Reilly said. "You can smoke a cigarette, but if you do, you're taking a chance. It's a decision he made."

The outcome of the trial, expected to last about three weeks, is being closely watched by the tobacco industry and by the thousands of other Florida smokers and survivors who have filed similar lawsuits. Although it does not have direct legal impact on those other lawsuits, the Hess case could signal how many of them will turn out.

Trial originally began in December but was halted in the first day when a witness used a racial epithet in describing research on racial aspects of tobacco marketing. Broward Circuit Judge Jeffrey Streitfeld called a mistrial because of the possible impact on African-American members of that first jury.

A second, ethnically mixed jury of three men and three women was then chosen and trial started again.

The $145 billion damage award that was voided by the Supreme Court came in 2000 in Miami. It was the largest such punitive award in U.S. history and involved a class of smokers estimated at about 700,000 as part of a 1994 lawsuit filed by pediatrician Howard Engle, who had smoked for decades and couldn't quit.

At the time, the Engle case was the first class-action lawsuit against tobacco companies to make it to trial in the U.S.

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