Attendants win latest smoking settlement

By JOHN SCHWARTZ
Washington Post

Copyright 1997 Houston Chronicle News Services

The tobacco industry, which for decades bitterly fought every
smokingrelated lawsuit, Friday announced the latest in a series of recent
settlements a $349 million deal to end a landmark classaction suit over
secondhand smoke.

By settling the case, the industry halts a lawsuit that appeared to be
going against it and clears a potential roadblock to its muchdesired
national tobacco settlement. The airline flight attendants who filed the $5
billion lawsuit in Florida get a $300 million foundation for the study of
diseases associated with tobacco smoke, including early detection and
possible treatment and cures.

"We have accomplished a huge amount of what we set out to do," said Norma
Broin, 42, a nonsmoking former American Airlines flight attendant from
Stafford, Va., whose lung cancer was diagnosed in 1989 and who was the lead
plaintiff in the case. "This was never about money to me. It was about
exposing the lies, deception and fraud."

The companies Brown & Williamson Tobacco, Philip Morris, R.J. Reynolds
Tobacco and Lorillard will not pay money directly to flight attendants,
and did not admit in the settlement that secondhand smoke causes disease.
To the contrary, Brown & Williamson issued a statement saying that
secondhand smoke "is certainly an area in which we feel that social policy
issues have overridden an objective scientific evaluation of the evidence."

The Florida settlement comes in the wake of two other major settlements by
the industry within the last six months: Cigarette makers settled suits
filed by the states of Mississippi and Florida seeking reimbursement for
tobacco related health care costs.

The proposed $368 billion national settlement of lawsuits against the
industry is being considered by Congress, and Friday's deal ensures that no
surprises from the Florida case will upset that delicate process. An
industry statement called the settlement "a common sense approach to
resolving the class action aspects of the case in a way that is consistent
with the much broader legislative resolution now pending before Congress."

Under the terms of Friday's settlement, any former flight attendants will
be able to file individual suits against the industry even those for
whom the statute of limitations on filing suit would otherwise have already
run out. "The thousands we would have lost they will get their day in
court," Broin said.

This would not conflict with the proposed national settlement because the
proposal does not restrict the ability of individuals to sue the industry.
That broader deal would, however, ban further group lawsuits and punitive
damages; it also would put a $2 billion cap on the amount that the industry
would have to pay out in a given year, giving the industry a measure of
financial predictability that it craved.

The terms of the agreement also shift the burden of proof for the
fundamental question of whether secondhand smoke causes certain diseases
such as lung cancer. Until now, those attacking the industry had to prove
that smoke caused their illness; after the settlement, however, it would be
up to the industry to disprove it.

Lawrence Gostin of the Georgetown University Law Center said that the
tactical change from the industry's previously feisty stance to the series
of settlements was stunning. "They have lost their resolve in a miraculous
way and seem to have lost their will to fight," he said.

The new industry strategy is risky, Gostin said. "They have left themselves
wide open to an avalanche of individual litigationnot just from workers in
the airline industry, but in all venues of society. ... It opens up a whole
other front in the tobacco wars," Gostin said, because "they're not going
to be facing smokers," who are generally thought by juries to have assumed
the risks of smoking.

Gary Black, a tobacco industry analyst with Stanford C. Bernstein & Co.,
disagreed, saying the settlement served the industry's longterm interests.

"The industry was smart to settle this," said Black, who pointed to a
number of rulings that went against the tobacco companies in the case in
recent weeks. The specter of the national settlement proposal has caused
many judges to have little patience with the drawnout lawsuits in their
courtrooms, Black said. In the Florida case, Judge Robert Kaye refused to
allow industrypicked experts to testify extensively about other possible
causes of cancer in flight attendants, including the greater prevalence of
cosmic radiation at high altitudes.

Black also said that the industry needed to settle the case to ensure that
the attorneys who brought it would not later file a constitutional
challenge to the national settlement that might derail the process.

Richard Daynard, who heads the Tobacco Products Liability Project at
Northeastern University, argued that part of the reason the tobacco
industry has suffered so many recent setbacks in court is because the
lawsuits that are being filed are stronger than in the past. "When your
kids come and say "I have this problem this teacher is really unfair,
this other teacher is really unfair; the next one hates me and this other
one won't give me a fair chance,' eventually you get the idea that the
problem may not be the teachers," Daynard said.

The $5 billion lawsuit, waged by husbandandwife team Stanley and Susan
Rosenblatt since 1991, was the first classaction lawsuit of any kind
against the tobacco industry to go to trial. The class grew to include
60,000 nonsmoking flight attendants who claimed injury from breathing
secondhand smoke before the 1990 ban on much in flight smoking.

Other lawyers initially considered the case relatively weak, in part
because the scientific evidence that secondhand smoke can cause disease is
not considered as strong as the link between smoking and disease.

The Rosenblatts will receive $49 million in fees and costs in the
settlement.