New Suit Against Cigarette-maker Has A Deadlier Twist - Asbestos

Posted: June 12, 1988

John Ray Gunsalus began smoking at age 11. At 55, just months away from dying of cancer, he still could not give up his two packs of Pall Malls a day.

"My habit's pretty damn bad," he told a psychiatrist in 1986. "I've got cancer and still can't quit. I always have to carry an extra pack."

Gunsalus, of Ridley Park, died a year ago, haunted by the cigarettes he smoked even when working at the Chester shipyards, in jobs that he said left him looking like a snowman, covered with asbestos.

His attorneys say Gunsalus never knew that asbestos caused cancer.

More important, the lawyers say, Gunsalus - like most of the public - never knew that smoking and asbestos are far more dangerous together than either one alone.

Doctors and anti-tobacco advocates call the combined effect "synergy," an interaction that for unexplained reasons is more deadly than the sum of its parts. The phenomenon is now the subject of a potentially groundbreaking trial in U.S. District Court in Philadelphia.

In the case, which opened Monday with the selection of an eight-member jury, Gunsalus' estate is suing the American Tobacco Co. The makers of Pall

Malls, they say, should have issued special warnings about the added dangers of smoking for people who work around asbestos.

As a 1985 surgeon general's report put it, people who work near asbestos are five times as likely to get lung cancer as people who do not come in contact with the substance. Smokers are 10 times more likely to get lung cancer than nonsmokers, the report said.

But people who work near asbestos and smoke are 50 times more likely to get cancer than people who do neither, the report said.

"That is information, that is a warning, that is a message that John Gunsalus never got, and we believe he should have gotten," attorney Thomas F. Johnson told the jury in his opening argument Tuesday.

Of approximately 100 cases in courts around the country in which cancer victims are seeking money from tobacco companies - including a bellwether case now being deliberated by a federal jury in Newark, N.J. - this is believed to be the first to come to trial linking asbestos and smoking.

The Gunsalus estate originally sued at least three asbestos companies, along with American Tobacco, but settled before the trial began, according to court records, which provide only sketchy details. Lawyers would not discuss the terms of the settlements, and U.S. District Judge Norma L. Shapiro has ordered that jurors not be told that such settlements were made.

The Gunsalus plaintiffs contend that just as aspirin-makers issue special warnings about their product, for example to pregnant women, so should cigarette-makers have warned people who work around asbestos to be especially cautious about smoking.

So far, not a single lawsuit has succeeded in wresting damages from cigarette-makers. And nowhere have tobacco companies ever admitted that their product causes cancer.

American Tobacco says that it was Gunsalus' choice to smoke, despite warnings from friends and relatives early on that cigarettes were "cancer sticks."

"He is the type of person on whom a warning would have made no difference whatsoever," Edward F. Mannino, the tobacco company's attorney, said in his opening argument.

Mannino argued that evidence in the case will prove that Gunsalus' death was caused by something other than the smoking he did before 1966, the only period for which cigarette-makers can be held liable, according to federal appeals court decisions. That year, health warnings began to be placed on cigarette packs.

Mannino argued that the cancer that killed Gunsalus was a rare type not statistically related to cigarette smoking. He downplayed the importance of asbestos, noting that Gunsalus had an assortment of health problems.

"Their own expert doctor who did an autopsy of Mr. Gunsalus couldn't find asbestos fibers in his lungs that were as high as the ordinary person in the City of Philadelphia who is walking around," Mannino said.

Johnson, however, argued that cigarette smoking was an addiction that Gunsalus was unable to quit. American Tobacco was responsible, Johnson said,

because the company did not warn of smoking's dangers while Gunsalus was in the clutch of the habit from 1942 to 1966.

On the contrary, Johnson said, the company ridiculed health messages that began to surface and spent millions of dollars in advertising "that suggested that their product would not cause harm, that associated its product with good times and fun."

Gunsalus, Johnson said, was "just the kind of customer the American Tobacco Co. was looking for. He was not blessed with high education or great intelligence or great sophistication."

Gunsalus' mother died of cancer when he was 6 months old, according to pretrial documents and opening arguments. He did not meet his father until he was 15. Bouncing around from relative to relative in Delaware County and South Jersey, he began working at adult jobs as a young teenager, married at 17, joined the Army underage and later enlisted with the Navy and Marines. He was imprisoned at least twice, with arrests on charges of breaking and entering, burglary and weapons offenses. He fathered six children.

Over 30 years Gunsalus had 50 or 60 jobs, including two stints with the Sun Shipyards in Chester as a stage builder, helping construct scaffolding that allowed other workers to get inside the structure of ships. There he would become covered with dusty asbestos particles, Johnson said.

Gunsalus, a heavy drinker - 10 or 12 beers a day were not unusual - as well as a heavy smoker, had three heart attacks in the 1970s. He last worked in 1979, a prematurely aged man who was, in the opinion of Dr. Levon D. Tashjian, a psychiatrist who examined him in 1986, addicted to cigarettes from age 13.

Diagnosed with cancer of the lungs, liver and head in 1985, Gunsalus initiated legal action against American Tobacco and about a dozen asbestos companies. Complaints directed toward nine of the asbestos companies were dismissed, court records show; three firms settled.

As of Monday, it will be one year since Gunsalus died at the Veterans' Administration Medical Center in Philadelphia. A brain tumor, caused by lung cancer, led to a fatal drop in blood pressure, his death certificate said.

Gunsalus' image, however, lives on in a videotaped deposition that is expected to be shown to the jury. His attorneys hope the jury sees a man who was in the grip of an addiction he was unable to control. American Tobacco's lawyers hope the jury sees a man who lacked the willpower to quit a habit that millions of people have abandoned.

"I've got to have a cigarette in my hand," Gunsalus told Tashjian, according to a report the psychiatrist wrote nine months before Gunsalus' death. "I feel empty without a cigarette. I feel nervous. I feel something missing when I ain't got a cigarette. You tell me how I can quit, and I'll

quit.

"My mouth doesn't taste all that good from smoking," he said. "I don't like anything about it. I don't like the taste. My mouth burns from smoking. Hated it since I got cancer, but I smoke even more now. I know it's crazy."

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