Attorney Fine scores major victory in tobacco case as reported in following front page Boston Globe story:

SJC SAYS TOBACCO FIRMS CAN'T BLAME SMOKERS AS DEFENSE

Boston Globe, The (MA)

May 19, 2006

Author: Jonathan Saltzman, GLOBE STAFF

Edition: THIRD
Section: National/Foreign
Page: A1

Estimated printed pages: 4

Article Text:

The Supreme Judicial Court ruled yesterday that cigarette makers cannot defend against personal- injury lawsuits by arguing that smokers should know the health risks of cigarettes and thus are responsible for harming themselves.

Cigarettes, the court said, are so dangerous that they cannot be used safely by anyone.

The ruling, believed to be the first of its kind in the nation by a top state court, said Philip Morris Inc. cannot shield itself from a lawsuit by the widow of a Douglas man who died of lung cancer by arguing that he knew cigarettes were harmful and thus had used the product unreasonably. Tobacco companies have successfully used that defense in wrongful death suits across the country.

"Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes," Chief Justice Margaret H. Marshall wrote for the court.

Although the 7-0 ruling only concerns suits against cigarette makers in Massachusetts, antismoking activists hailed it as a landmark that could bolster litigation elsewhere, if courts in other states agree with the SJC's reasoning.

"This could blow Big Tobacco out of the water," said John F. Banzhaf III, a professor at George Washington University Law School and founder of a national antismoking group. "What the court is saying is that this product is so dangerous that the plaintiff almost never can be said to have used it improperly."

But Boston lawyers for Philip Morris disputed that the ruling in the case of Stephen C. Haglund would ripple beyond Massachusetts, saying that it will only apply to a limited number of cases here.

They also pointed out that the court did allow tobacco companies to use the "unreasonable use" defense if they can show that the smoker was "overwhelmingly unreasonable" to light up, for instance if he or she already had emphysema.

A lawyer for the Product Liability Advisory Council, which filed a brief siding with Philip Morris, accused the SJC of "playing Big Brother." He disputed the court's statement that "there is no such thing as a safe cigarette," arguing that many smokers do not get sick.

"What they mistakenly assumed is that cigarettes are inevitably dangerous, they basically harm everyone," said David R. Geiger, a Boston lawyer whose group represents a wide spectrum of product makers. "I worry that this [ruling] could be used not only in cigarette litigation but in litigation against manufacturers of all products that have inherent dangers."

The plaintiff, Brenda Haglund, said she was delighted by the decision. Her husband Stephen, a truck driver for the Telegram & Gazette in Worcester, smoked Marlboro and Marlboro Lights for nearly three decades until he died of lung cancer at age 51 in May 2000. She filed her suit 10 months later.

The suit said Stephen Haglund, a fishing and gardening enthusiast, smoked as many as four packs of cigarettes a day and repeatedly failed to quit because he was addicted to nicotine. The suit sought unspecified damages to compensate Brenda Haglund for the loss of her husband's income and companionship, plus punitive damages.

"I'm very pleased, because it means to me that now my husband didn't die in vain," said Haglund, who now lives in Winter Haven, Fla. "He had eight months from diagnosis to time of death. It was absolutely horrendous. I pray I never witness anything like that again."

Since 1954, when Eva Cooper filed the first product liability suit against a cigarette maker she blamed R.J. Reynolds Tobacco Co. for the lung cancer death of her husband, a Camel smoker most legal challenges against the tobacco industry have been personal injury suits alleging that smoking made people sick and that cigarette makers concealed the dangers of their products.

Beginning in 1966, cigarette packs have carried federally required health warnings. For decades afterward, the tobacco industry had a nearly perfect record of fending off personal injury lawsuits by convincing juries that the dangers of smoking were widely known and that the smokers were responsible for their own behavior.

In recent years, the legal terrain has shifted, amid mounting scientific evidence that nicotine is addictive and the forced disclosure of internal documents revealing that cigarette manufacturers deliberately withheld details on the dangers and addictive nature of their products. In 1998, the tobacco industry agreed to the landmark $246 billion settlement with 50 states in exchange for a promise by state attorneys general to drop lawsuits aimed at forcing the industry to pay for smoking-related health costs.

Haglund's lawyer, Stephen R. Fine of Manchester, N.H., said cigarette manufacturers have won the vast majority of personal injury suits by relying on what he called the "personal choice" defense, that smokers knew cigarettes were dangerous but used the product anyway. "That has been their escape hatch on virtually all the smoker disease cases brought against them," he said.

In the Haglund case, Fine employed a bit of legal jujitsu. He conceded that Haglund knew that cigarettes were dangerous and that he was unreasonable to take up the habit, but argued that it was irrelevant because cigarettes cannot be used safely at all.

Citing that concession, Worcester Superior Court Judge Leila R. Kern dismissed the suit. But the SJC yesterday reversed her ruling.

"This was a home run for the plaintiff," said Richard Daynard, a professor at Northeastern University School of Law and the head of the Public Health Advocacy Institute.

But Geiger, the Product Liability Advisory Council lawyer, said that Philip Morris could ask the SJC to hear arguments again if the company gathers evidence showing that cigarettes can be used safely. The manufacturer might also be able to appeal to the US Supreme Court, he said.

This is not the first time Massachusetts might be setting a precedent in legal challenges to the tobacco industry. In 1985, Massa chusetts became the first state to require a warning label for smokeless tobacco. Massachusetts also passed the first law in the nation requiring tobacco companies to reveal the ingredients in cigarettes and other tobacco products, a statute struck down in 2002 by a federal appeals court.

Saltzman can be reached at 6=wL].MP4D/N~u^aV`}]#[{.Y5R&7.}[q7nXDj6Pk

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