There probably is a seriously ill smoker somewhere in the United States who could bring a successful lawsuit against a tobacco company.
That person is someone who would have begun smoking as a teenager in the 1950s or early 1960s-before there were health warnings on cigarette packages. He or she has been unable to quit despite a half-dozen attempts over the years, or was able to quit only with medical assistance.
It would help if the person:
– Had no exposure to other health hazards,
– Was at least vaguely aware of efforts by the tobacco industry to dispute the risks of smoking, and
– Though seriously ill, was assured of living long enough to see what likely would be lengthy litigation through to its end.
As it turned out, Charles Kueper wasn’t that smoker.
Kueper is the 51-year-old retired Green Beret from Cahokia, Ill., who sought millions of dollars in damages from the R.J. Reynolds Tobacco Co. and the Tobacco Institute, a trade group based in Washington, D.C.
On Jan. 29, a jury in St. Clair County Circuit Court rejected his claims and decided the tobacco industry was not responsible for his lung cancer.
The jury’s verdict preserved the tobacco industry’s perfect record of never paying damages to plaintiffs in such lawsuits.
Kueper’s lawsuit had attracted nationwide attention because it was the first to go to trial since a major ruling last June by the U.S. Supreme Court.
Anti-smoking activists had hoped that the decision would open the doors to successful litigation against tobacco companies.
Did the jury verdict prove them wrong?
Lawyers and legal experts say no. They contend that the verdict does not signal a retreat from litigation but rather demonstrates again that it is extremely difficult to bring a successful lawsuit blaming a tobacco company for health problems.
“I would do it again in a minute,” said Bruce Cook, the Belleville lawyer who represents Kueper.
All that is needed, according to Cook and others, is for the right jury to meet the right smoker with a case that a lawyer has had enough time and resources to properly prepare.
“This is really just the first horse out of the gate,” said Richard Daynard, a law professor at Northeastern University in Boston and chairman of the not-for-profit Tobacco Products Liability Project, which encourages litigation against cigarette companies.
“I think there is a good chance of persuading a jury that the tobacco industry ought to bear at least some of the responsibility for this epidemic of death and disease,” Daynard said.
Kueper smoked a pack-and-a-half or more of Winstons a day through most of his adult life. He said he quit in late 1990.
His lawsuit alleged that R.J. Reynolds, a unit of RJR Nabisco Inc., and the Tobacco Institute were part of a conspiracy to conceal the hazards of cigarette smoking through fraudulent and misleading advertising.
Cook said that Kueper’s health forced him to bring the lawsuit to trial in 13 months, which gave him less time to prepare than he would have liked.
Kueper is dying of lung cancer, but lawyers for R.J. Reynolds and the Tobacco Institute presented evidence that the retired Green Beret may have been exposed to hazardous chemicals in Vietnam or later while working as a truck driver. They also argued that Kueper was aware of the warnings but disregarded them.
“The ultimate issue in this case is whether or not someone who chose to smoke despite warnings over 20 years, who withstood warnings from family and friends and a barrage of warnings from the media, ought to be able to come in here and say, `Give me damages,’ ” said Paul Crist, a lawyer for R.J. Reynolds, during closing arguments.
In its 7-2 decision last June, the Supreme Court said that a 1965 federal law requiring warning labels on cigarette packages did not shield tobacco companies from litigation seeking damages under state personal-injury or product-liability laws. But the complex ruling also was seen as putting into place some barriers that would make it harder to win such claims.
Despite the verdict in Kueper’s trial, the high court ruling is important for the way it opens the door to litigation, said Marshall Shapo, a law professor at Northwestern University.
And the verdict won’t end the legal battle, which is expected to resume in early June when similar lawsuits are scheduled to go to trial in Louisiana and Mississippi. Another case is pending in New Jersey.
Also pending is a separate claim brought by Kueper seeking damages under the Illinois consumer-fraud law. That issue will be decided by a judge later this year.
As more and more smokers over the years are exposed to the health warnings, juries may become less sympathetic to their claims, according to some experts.
But Daynard said there are significant numbers of people who began smoking before the warnings were required.
“There is still a huge number of people who will be dying for the next 20 to 30 years and who started smoking before the warnings,” he said.
Anti-smoking lawyers say that the ideal plaintiff would be a woman with a smoking-related illness who was unable to quit or quit only with difficulty.
Lawyers say it would be easier to argue to a jury that a woman took up smoking in response to cigarette industry advertising. Smoking had been part of the male culture, but “women didn’t smoke,” Cook said.
Being unable to quit would allow a lawyer to argue strongly that warnings didn’t matter because cigarettes are addictive.
Although activists contend there is evidence that tobacco companies concealed health risks, they concede it is difficult for juries to link an industrywide practice to an individual’s decision to start or continue smoking.
The tobacco industry has argued that the chief issue in these lawsuits is one of personal responsibility, though a spokesman for the Tobacco Institute declined to be interviewed for this article.
Cook contends that selecting a fair jury is a problem because people with strong feelings about the health risks from smoking are likely to be excused.
He estimated that 30 to 40 of the 90 prospective jurors called for Kueper’s trial were excused for those types of reasons.
But Cook and others also are convinced that a jury some day will respond to their arguments.
“I think what we are waiting for is for some jury to look at the tobacco industry and say, `These people are killers,’ ” Daynard said. “I think some jury is going to do that.”
