August 02 2006 - Smoke over tobacco not clear

There's a nasty war out there. One poised to escalate once again.

Not Iraq. This is the long and expensive legal, increasingly cultural and sometimes absurd conflict with the tobacco industry.

It's a battle fought in the courts nationwide and, as we will see more and more, in developing countries desperate to curtail tobacco addiction among their own people. But it's also a growing clash with everyday America: from hotel chain Marriott this month saying it will go 100 percent smoke-free to such states as California and Colorado sharply restricting where and when people can smoke.

It's also at times a surreal contest. What industry other than tobacco spends so much of its mainstream advertising urging young people not to use the product it sells because of health reasons? All this in a year when a satirical movie called Thank You for Smoking, about an unsavory tobacco lobbyist, opened and it almost felt like a documentary.

This month, Florida has been tobacco's ground zero.

In what the media at first called a big victory for the tobacco industry, the Florida Supreme Court on July 6 unanimously upheld the reversal of the $145-billion punitive damages verdict awarded to 700,000 ailing Florida smokers. The original class action suit, Howard Engle, et al. vs. Liggett Group et al., was filed a dozen years ago on behalf of Miami Beach pediatrician Howard Engle and five other lead plaintiffs. They claimed they could not stop smoking because they were addicted to nicotine.

The protobacco response to the court was almost giddy.

"The trends are incredibly favorable," Martin L. Holton III, deputy general counsel for R.J. Reynolds Tobacco, told Business Week magazine after the Florida decision this month.

Holton may be missing a bigger point. A new wave of legal assaults against the cigarette industry is coming. While the Florida Supreme Court blessed the dropping of huge punitive damages, it acknowledged that cigarette manufacturers are negligent and that their products are defective, addictive and a cause of 16 major diseases.

Bottom line: Now Florida plaintiffs don't have to prove this in court.

That's fresh ammunition for the next wave of individual litigation, according to the Tobacco Products Liability Project, part of the Public Health Advocacy Institute at Northeastern University in Boston.

"We expect tens of thousands of streamlined cases to be filed in Florida by this time next year," project attorney Edward Sweda says.

In all these big numbers, let's not forget the Florida Supreme Court reversed an appeals court and upheld awards to two Florida plaintiffs. Mary Farnan of Inglis, stricken with cancer and living with an oxygen machine in her living room, was entitled to $2.9-million. New Port Richey's Angie Della Vecchia, now deceased, was entitled to $4-million, the court said.

Tobacco court fights in Florida have not slowed since the big July 6 court decision. An appeals court on July 21 rejected tobacco giant Philip Morris's claim that Tampa Bay smoker Ron Arnitz, stricken with cancer and emphysema, could not "split the blame" and argue that while he was 60 percent responsible for smoking, the tobacco company was 40 percent liable. That cleared the way for his receiving the original jury award of $240,000.

Let's not forget that the Department of Justice brought a sweeping $280-billion racketeering case during the Clinton administration. In the Bush administration, the case was watered down when the government cut its demands to $14-billion over 10 years. A ruling could come in the next few months.

The tobacco industry is so big and rich, and its global ambitions so huge, it's tough to grasp the range of controversy. On Friday, I talked with Ed Sweda, 50, of the Tobacco Products Liability Project in Boston. The senior attorney volunteered to help fight the tobacco industry 27 years ago. He's been involved since. Here are some excerpts from the interview:

You seem bullish on the prospects of more tobacco litigation in Florida since the July 6 Florida Supreme Court decision.

We are encouraged by the prospects for cases. New law firms are getting involved.

Do you see more smoking limitations ahead in this country?

I see an acceleration among hotels and motels. More states and cities will pass smoke-free laws. More businesses are going smoke-free, and more individuals are adopting rules for their own homes requiring smokers to step outside. That trend will be irreversible. We also got a further boost last month when the U.S. Surgeon General issued a report concluding secondhand smoke dramatically increases the risk of heart disease and lung cancer in nonsmokers.

I read that the Marlboro brand is still the world's 12th strongest global brand, and especially popular outside the United States. Is this a concern?

The head of our project is on a monthlong tour of various Asian countries to promote tobacco litigation in those countries. Just two weeks ago, the national world conference on tobacco and health was held with 3,500 attendees from 130 countries. What's happening in other countries does not always get much attention. A recent report warns that 1-billion people worldwide are on course to die prematurely in this century from using tobacco.* * *

Sweda, who spoke about many other tobacco issues, said it bugs him to wander the Northeastern University campus and see so many young people smoking.

I ended the interview with an open-ended question: What's the end game in this tobacco war?

"To force companies to change their behavior," Sweda answered. "To stop marketing to kids. To stop the next generation from getting hooked."

Robert Trigaux can be reached at [email protected] or 727 893-8405.

To see more of The St. Petersburg Times, go to http://www.sptimes.com .

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