Court Clears The Way For Suits By Smokers

Posted: June 25, 1992

WASHINGTON — The Supreme Court yesterday cleared the way for lawsuits against cigarette companies seeking to make them pay for the injuries and deaths of smokers.

The court, by a 7-2 vote, ruled that federal laws requiring warning labels on cigarette packages are not enough to shield companies from all suits based on state personal-injury statutes.

Writing for the majority, Justice John Paul Stevens said the companies' ''duty not to deceive" is not pre-empted by federal law.

But, he said, smokers will have to do more than prove that cigarette advertising and promotions "tend to minimize the health hazards associated with smoking." Ultimately, those who sue may have to convince juries that smokers who relied on industry misrepresentations were therefore not primarily at fault for starting and continuing their habit.

There are three smokers on the Supreme Court. Clarence Thomas smokes cigars, Chief Justice William H. Rehnquist smokes cigarettes and Antonin Scalia smokes cigarettes and a pipe.

Whether suits are barred by federal law was the key dispute in the case of a 58-year-old New Jersey woman who died in 1984 after smoking for 42 years.

Lawyers for the family of the late Rose Cipollone of Little Ferry, N.J., and anti-smoking forces claimed victory. But so did tobacco industry officials who said the split decision favored them.

On the industry's side, the court held that suits cannot be based on claims that cigarette advertising failed to warn of the dangers of smoking, a decision Philip Morris Cos. called "a significant victory."

Even so, tobacco stocks on Wall Street dipped after the ruling but were virtually unchanged by the end of trading.

The court also ruled that people are free to press claims alleging that the tobacco companies made fraudulent or inaccurate statements in their advertising, or that the companies conspired to mislead people about health hazards.

Those are the issues that make juries more likely to rule in favor of plaintiffs, said Alan B. Morrison, director of litigation for Public Citizen, a consumer advocacy group. He said 50 to 100 such cases are pending in the courts.

John Banzhaf, head of Action on Smoking and Health, an anti-smoking group, predicted "hundreds of thousands of lawsuits."

But others, including Cynthia Walters, co-counsel for the Cipollone family, which sued Philip Morris and two other tobacco firms, disagreed.

Walters said that while she thinks the ruling creates the potential for more cases, such suits are costly and take a long time to pursue, and the tobacco industry is better equipped for a legal fight than the average citizen.

Leigh Ferst, a senior tobacco analyst at Prudential Securities, said she thinks that by eliminating claims based on insufficient health warnings, the ruling will limit the number and types of suits.

"We don't see it as a big financial risk to the companies because we think it will be hard for the plaintiffs to win," she said.

So far, the tobacco companies have lost no cigarette-injury cases. In the Cipollone case, a federal jury in 1988 awarded the family $400,000 in damages, but an appeals court overturned the award. The Supreme Court decision returns the case for rehearing.

The American Cancer Society estimates that 390,000 Americans die every year

from smoking-related diseases, including 143,000 from lung cancer.

In a dissenting opinion, Scalia and Thomas argued that the suits are barred by the federal Cigarette Labeling and Advertising Act.

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