For Tobacco Companies, There's Trouble In The Air

Once Hard To Beat In Court, Industry Considers Settling

April 20, 1997|By Scott Shane | Scott Shane,SUN STAFF

After Cathy Ryan's first operation for cancer of the vocal cords, her doctor told her: Stop smoking or die. For weeks, she struggled to quit.

Finally, on Valentine's Day last year, she awoke in a fury at the nicotine shackles she had worn for 30 years.

She tore her last pack of Marlboros to shreds, dumped the mangled cigarettes in a glass jar and added water.

When she longed to light up, she'd stare at the foul concoction instead.

The 46-year-old bookkeeper from Takoma Park hasn't smoked since. She has had a second cancer operation.

Like cigarettes, cancer has become a family affair: Her father has throat cancer. So does her aunt.

Now Ryan lives in fear of more bad news and pleads with her 13-year-old son never to smoke.

"I don't like the tobacco industry's lies," says Ryan, seething. "I think they should pay. I don't think they should be allowed to advertise the Marlboro Man.

"I think they should be required to advertise what smoking really does to you."

For more than 40 years, smokers have tried to make cigarette manufacturers pay for the medical devastation their product causes.

And the tobacco companies have accumulated an almost unbroken string of victories, persuading juries it is not their fault if smokers choose to smoke.

But now the very American drama of tobacco, in which commerce mixes uneasily with morality, has taken an unexpected turn.

Secret talks held sporadically since last year between tobacco lawyers and those suing them have suddenly grown serious, discussing a global, multihundred-billion-dollar settlement. The once-invincible industry is on the defensive.

"For years, they've put overwhelming legal resources into every case, and they've simply outgunned the plaintiffs' attorneys," says Oscar S. Gray, professor emeritus of the University of Maryland School of Law. "But now they have to ask themselves what the risk is if they start to lose. And the risk is bankruptcy for the entire tobacco industry."

Cigarette makers have long shown a knack for prospering against the odds, and their market overseas is still growing. But pressure to settle has been building at home.

Since 1994, industry whistle-blowers have unveiled evidence that the tobacco companies hid what they knew about the appalling health effects of smoking.

Other documents undermined the companies' claim that adult smokers freely choose to smoke, by showing that their advertising targeted young people and their nicotine research sought to keep customers hooked.

Presented with a taste of such evidence, juries have begun to award damages against cigarette companies. Last month a small company, the Liggett Group, broke ranks and promised to share its trove of damning documents with plaintiffs' attorneys.

Meanwhile, the scale of tobacco lawsuits has shifted from retail to wholesale. Attorneys general in Maryland and 22 other states have sued to be reimbursed for the Medicaid costs of millions of smokers.

And since a national class action suit was thrown out by an appeals court last year, private attorneys have filed separate class actions in most states, including Maryland.

"Now the claim is not just one client with cancer," says Gray, a consultant to the Maryland suit. "The claim is billions of dollars for thousands of patients. A big law firm can gamble for that big a payoff."

In Maryland, the big law firm is that of Peter G. Angelos. In return for 25 percent of any award, Angelos is paying the costs of the suit filed in Baltimore Circuit Court on May 1 by Attorney General J. Joseph Curran Jr. seeking $3 billion in Medicaid costs and $10 billion in punitive damages for the state.

Three weeks later, Angelos -- like Curran, an ex-smoker -- followed up with a separate class action suit on behalf of all ailing Maryland smokers and their survivors. The suit gives no numbers, but more than 700,000 adult state residents smoke.

The lawsuits read more like mob indictments for mass murder than civil complaints. The state's suit charges that "through a campaign of fraud, lies, intimidation and deception, [the tobacco companies] have succeeded in avoiding legal responsibility for engineering and selling the most lethal consumer product in the history of humanity."

The industry's "despicable marketing strategies" have contributed to "a human tragedy practically beyond comprehension," the suit says, including the death from smoking of 425,000 Americans a year. In Maryland, the toll is about 20 deaths a day.

Hyperbolic language might be a legal tactic, but it reflects the outrage of a medical community that struggles daily with the ravages of cigarette smoke.

"My practice is probably 50 percent tobacco injury," says Paul F. Castellanos, the University of Maryland head and neck surgeon who treated Ryan.

He gives patients a blistering anti-smoking talk, replete with examples of necks rotting away and dying patients who smoke by holding their cigarette to the tracheotomy tube in their throat.

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