Key Smoker Death Trial Draws to Close; Jury Is First to See Company Documents

NEWARK, N.J. —  Since the 1950s, cigarette manufacturers in the United States have faced about 300 smoker death suits without losing or settling a single one. Against the vigorous defense mounted by the tobacco industry, many a financially exhausted plaintiff has thrown in the towel early, and fewer than 20 cases have actually gone to trial.

But for the last four months, a group of well-financed plaintiff lawyers has been challenging the industry in federal court here in the longest cigarette liability trial in history. Closing arguments are set to start today in the case, which stems from the lung cancer death of Rose Cipollone of Little Ferry, N.J., at the age of 58.

Antonio Cipollone, her husband, is seeking unspecified damages from Philip Morris Inc., Lorillard Inc. and Liggett & Myers--makers of the brands she smoked. The Cipollone lawyers--who say they have invested more than $2 million in expenses and time--will be paid only if they win.

Confidential Documents

For the first time ever, jurors in the case have seen a blizzard of confidential letters, reports and strategy memos, culled from more than 100,000 internal documents of the tobacco companies, their lobbyists and consultants. The documents, which will now be available for use in other cigarette trials, were obtained after the Cipollone lawyers won the right to search the cigarette companies’ files.

The case is crucial for the embattled tobacco companies. A victory for Cipollone is expected to invite hundreds or even thousands of additional suits against the industry, but a loss, in such an expensive and well-prepared case, would seriously discourage more suits.

Since the trial began Feb. 1, jurors have been exposed to nearly 500 exhibits, including a letter showing that industry officials knew smoking to be a suspected cause of cancer by 1946--18 years before the surgeon general’s report and 20 years before warnings were put on cigarette packs.

Other memos suggested that the industry’s medical research program--launched in the 1950s and costing tens of millions of dollars--was in part a public relations gambit meant to perpetuate the notion of a raging scientific debate on the risks of smoking. Other documents showed the cigarette makers at work on safer cigarettes, at the same time they were publicly denying the risks of existing products.

Nicotine Dependence Discussed

Several exhibits concerned nicotine dependence.

“The cigarette should be conceived not as a product but as a package,” wrote Dr. William L. Dunn Jr., a former psychologist with Philip Morris, in a paper placed in evidence.

“Think of the cigarette pack as a storage container for a day’s supply of nicotine . . . Think of the cigarette as a dispenser for a dose unit of nicotine.”

Defense lawyers contend that these and other documents were taken out of context to paint a sinister picture and that their significance has been exaggerated.

Jurors also have come to know a lot about Rose Cipollone, who grew up in Manhattan, smoked for 40 years and died in October, 1984, after cancer found in her lung invaded her liver and brain.

In a deposition before she died, parts of which were read into the record, Cipollone told of childhood visits to her neighborhood theater where she was mesmerized by “glamorous” stars with their gowns and cigarettes. Cipollone and her playmates dressed up in old dresses and rolled pieces of paper into pretend cigarettes to “make-believe we were movie stars.”

Graduates to Real Thing

She graduated to the real thing at the age of 16, when she started buying Chesterfields at the corner candy store. Eventually she switched to Liggett’s milder L&M; brand, advertised as “just what the doctor ordered”; then to Philip Morris’ Virginia Slims and Parliament, and finally to Lorillard’s low-tar True.

Cipollone, a mother of three, was an avid reader who was frequently exposed to anti-smoking articles. In church, she prayed to St. Jude to be spared from cancer. Other times she rationalized, taking heart in statements by the industry that the risks of smoking were unproven. Her husband nagged her incessantly to give up her habit, but she continued to smoke, even sneaking an occasional cigarette after her lung was removed.

The defense has portrayed her as a bright and well-informed woman who made a personal choice to smoke and alone is responsible for that choice. The Cipollone lawyers say she was addicted.

The jury faces an even more basic question. Was Cipollone’s lung cancer caused by smoking, as most experts say 80% to 90% of lung cancers are? Plaintiff expert witnesses say Cipollone had small cell carcinoma, a smoking-related type, while defense experts said she had an atypical carcinoid, a form of cancer not statistically associated with smoking. If the jury agrees with the defense, the case fails right there.

Judge Outrages Defense

The trial judge, U.S. District Judge H. Lee Sarokin, has also been in the thick of controversy. His scathing comments about the tobacco industry--of which the jury is unaware--have outraged defense attorneys and prompted a request before the trial that he be taken off the case. Paradoxically, Sarokin’s blistering remarks were contained in rulings that favored the cigarette companies and seriously weakened the Cipollone case.

For example, in December, 1986, Sarokin threw out key portions of the suit after a federal appeals court ruled that warning labels required by Congress bar certain claims against the industry.

But in doing so, he wrote: “In essence, without any express authority from Congress, a single industry, for the first time in our country’s history, may speak what is untrue, may conceal what is true, and may avoid liability for doing so merely by affixing certain mandated warnings to its products and advertising.”

Then, in a mid-trial ruling on April 21, Sarokin threw out more of the case, but refused to dismiss a charge that the industry had conspired to conceal and misrepresent the risks of smoking.

Cites Attempts to Confuse

In his 33-page ruling, Sarokin held that Cipollone had presented evidence of attempts by the industry “to refute, undermine, and neutralize information coming from the scientific and medical community and, at the same time, to confuse and mislead the consuming public in an effort to encourage existing smokers to continue and new persons to commence smoking . . .

“The evidence presented . . . permits the jury to find a tobacco industry conspiracy, vast in its scope, devious in its purpose and devastating in its results. The jury may reasonably conclude that defendants . . . engaged in that conspiracy . . . and that Mrs. Cipollone was merely one of its victims.” The opinion received wide news coverage, prompting an unsuccessful motion for a mistrial, one of several defense lawyers have sought since the trial began.

Antonio Cipollone, 64, a retired cable splicer who has remarried, was a witness and has attended the trial regularly, saying it was his wife’s dying wish that he see the case through. His team of four lawyers is led by Marc Z. Edell, 37, a partner in a firm in nearby Short Hills, N.J. Edell, a former national co-counsel for a Canadian asbestos mining firm, was on the other side of suits on behalf of the dead and dying. He says he noticed that asbestos victims “almost without exception . . . were cigarette smokers.”

May Spend Millions

Although they will not give estimates, the cigarette makers are thought to have spent many millions of dollars on the case since it was filed in 1983. Their defense team is drawn from large law firms that have been defending cigarette liability suits since the 1950s: Shook, Hardy & Bacon of Kansas City, Webster & Sheffield from New York City, and Arnold & Porter of Washington, D.C. As many as nine lawyers sit at the defense table, but more than 20 are involved in the case.

The industry has also sent troops into the battle for public opinion. A public relations staff of five is on hand to field reporters’ questions.

Closing arguments are expected to last the rest of the week, and the six-member jury may not begin deliberation before Monday.

Although about 100 tobacco cases are pending around the country, this is only the fifth to go to trial in the 1980s.

A trial in Santa Barbara, in which Melvin Belli represented the family of John Galbraith, was won by R.J. Reynolds in December, 1985. The most recent case, Horton vs. American Tobacco in Mississippi--which ended in a hung jury in January--was the first trial in which the industry failed to get a clear-cut victory.