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September 12, 2001-New phase for tobacco fight against flight attendants

September 12, 2001-New phase for tobacco fight against flight attendants

The next chapter in the saga of more than 3,000 flight attendants who claim that secondhand smoke made them sick is about to unfold in a state appeals court.

That's where lawyers for Big Tobacco are scheduled today to seek to overturn a ruling issued in October by Miami-Dade Circuit Judge Robert Kaye that essentially says that when the flight attendants' cases go to trial, their lawyers will not have to rehash all of the issues relating to strict liability, negligence and breach of warranty. Kaye ruled that those issues were resolved by a 1997 settlement agreement that required the flight attendants to take their cases to court individually. He ruled that the only issues that remained to be tried were what specifically caused the flight attendants' illnesses and what damages they should be awarded as a result.

Lawyers for the tobacco industry will argue before the 3rd District Court of Appeal that the judge misinterpreted that settlement agreement by limiting the issues to be tried and that his ruling "contradicts the plain language of the agreement" in violation of Florida law. Lawyers for the flight attendants, meanwhile, accuse Big Tobacco of trying to unravel the deal and argue that should they be forced to rehash those issues that are common to all of the flight attendants at each of their individual trials, it would take 200 years to get all of the secondhand-smoke cases to trial. The dispute revolves around the interpretation of a settlement agreement signed four years ago by cigarette makers and flight attendants. The deal grew out of a multimillion-dollar class-action lawsuit filed in 1991 on behalf of all former and current nonsmoking flight attendants who suffered serious health problems as a result of exposure to cigarette smoke from passengers who were allowed to light up in airline cabins.

For six years, flight attendant attorneys fought to bring the case to trial. Because there were so many legal issues to be considered, Kaye split the trial into two stages: The first phase would address all of the issues common to the flight attendants. The second phase would address individual claims. The case known as Broin v. Phillip Morris, et al. began in June 1997. Other defendants included R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., and Brown & Williamson Tobacco Corp. The case was named for Norma Broin, one of the first flight attendants to come forward with the complaint, which grew into the national class action. Three-and-a-half months after going to trial the two sides agreed to a settlement. Both sides made concessions. For example, the plaintiffs gave up the right to seek punitive damages, while the tobacco companies waived any potential statute of limitations defense.

The agreement provided $300 million in funding for research into secondhand smoke. And while the flight attendants would get no money for themselves, they would be allowed to file suit individually. The deal also shifted the burden of proof to the defendants to show that secondhand smoke did not cause the flight attendants' lung cancer, pulmonary disease, bronchitis, sinusitis or emphysema. The idea behind the settlement agreement was to streamline the case and make it easier for individual class members to pursue their individual damage claims. Attorneys for the cigarette makers, however, want to require the flight attendants, in every case, to put on the same 52 witnesses who testified during the first three-and-a-half months of the class-action case in order to prove that tobacco companies are liable. This would require four to six months for each case to be tried.

Since the settlement agreement was signed and the more than 3,000 cases filed, one case has gone to trial, that of Marie Fontana. The former TWA flight attendant who breathes with the help of an oxygen tank, lost her case because her lawyers were not able to convince a jury that secondhand smoke caused her illness. Fontana suffers from a rare lung disease called sarcoidosis

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