State Appeals Court Overturns $21.7 Million Award for Smoker
A three-judge panel of the 1st District Court of Appeal in San Francisco on Wednesday unanimously voted to overturn a verdict that awarded a smoker $21.7 million from two tobacco companies, ruling that the jury should not have considered evidence of industry misconduct during a 10-year period when cigarette makers were protected from litigation under state law, the Los Angeles Times reports (Dolan, Los Angeles Times, 4/8). Leslie Whiteley, who developed lung cancer, began smoking in 1972 but said she thought it was "safe because companies promoted it and the government allowed it," the AP/Contra Costa Times reports. In 2000, a jury found that Philip Morris and R.J. Reynolds Tobacco were negligent in their cigarette design, had made false and misleading statements and fraudulently concealed the dangers of smoking (Kravets, AP/Contra Costa Times, 4/8). The case was the nation's first won by a former smoker who took up the habit after warning labels were federally mandated in 1965, according to the San Francisco Chronicle (Egelko, San Francisco Chronicle, 4/8). Whiteley, who died shortly after winning the case, was awarded $1.7 million in compensatory damages and $20 million in punitive damages (Los Angeles Times, 4/8). In 2002, the California Supreme Court ruled that tobacco companies could not be held liable for smokers' health problems that result from companies' actions from 1988 to 1998 but could seek damages for harm caused before and afterward (AP/Contra Costa Times, 4/8). During the 10-year period, tobacco manufacturers were protected from lawsuits in California under the 1987 tort reform law (California Healthline, 4/2/2001). Whiteley's attorneys submitted evidence from that period in her case, including arguments that the companies "continued to misrepresent the dangers of smoking" and medical experts' testimony that Whiteley "was unlikely to have gotten cancer if she had quit smoking in 1985," the Chronicle reports (San Francisco Chronicle, 4/8).
The appeals court said that the trial judge in the case should have instructed the jury not to consider any evidence of industry misconduct between 1988 and 1998 (Los Angeles Times, 4/8). While overturning the verdict, the panel said the tobacco companies "fraudulently induced [Whiteley] to smoke by publicly disagreeing with the government warnings on the cigarette packs," the AP/Times reports (AP/Contra Costa Times, 4/8). The appeals court also found there was insufficient evidence that the companies' negligent cigarette design caused Whiteley's lung cancer. If Whiteley's family requests a rehearing, appeal or retrial, "the only claim they can win on is fraud," H. Joseph Escher, an attorney for the tobacco companies, said. However, Daniel Smith, who represented Whiteley on appeal, said winning the case without the information from the 10-year period and only on the basis of fraud "would be a snap" because "[a]ll the fraud that got her addicted was before the '70s or during the '70s" (Los Angeles Times, 4/8). If the case is retried, Madelyn Chaber, an attorney for Whiteley, said that she would seek to add Whiteley's husband and four children as plaintiffs, which could induce a jury to increase an award for damages (San Francisco Chronicle, 4/8).This is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.