Appellate Practice
Mar. 10, 2005
Riverside Jury Hears Tobacco Case
RIVERSIDE - In the first trial of its kind in the Inland Empire, a Riverside jury began hearing arguments this week from lawyers for a cancer-stricken man who claims tobacco giant Philip Morris Inc. caused his illness by concealing the dangers of smoking.
Testimony in the fiercely contested case started Monday, nearly a week after jurors shot down a request by the nation's biggest cigarette maker to dismiss the case on a timing technicality.
The plaintiff, 51-year-old former truck driver Bruce Coolidge, is trying to join the small ranks of plaintiffs nationwide who have reaped multimillion-dollar awards after claiming tobacco companies knowingly misled them.
Nationwide, the biggest jury award for a single plaintiff in such a case is $28 billion, an amount a Los Angeles judge trimmed to $28 million.
But cases against cigarette manufacturers are far from being slam-dunks: A Los Angeles jury Friday exonerated Philip Morris in the death of a man who had smoked 35 years.
Coolidge, a wheelchair-bound man whose 35-year smoking habit started at age 12, is seeking unspecified damages against the company for negligence, strict liability, fraudulent concealment and intentional false and misleading advertising. His wife, Patricia Coolidge, is a co-plaintiff. Coolidge v. Philip Morris Inc., RIC361063 (Riverside Super. Ct., filed June 11, 2001).
"Mr. Coolidge would never have become addicted to cigarettes if the cigarette companies had been honest about what their research showed and the effects of smoking on the body and mind," Coolidge's co-counsel, Timothy P. Prince, said.
Prince, a name partner with San Bernardino's Tomlinson Nydam & Prince, said Coolidge tried to quit smoking many times but was highly addicted. He finally quit after becoming ill.
"It really took the experience of coughing up blood during his diagnosis to make him never touch another cigarette," Prince said.
Walter L. Cofer, a Missouri attorney representing Philip Morris, disagreed with Coolidge's claims in opening statements Monday in the courtroom of Judge Roger Luebs.
Cofer of Kansas City's Shook, Hardy & Bacon told jurors Coolidge never had a cigarette addiction.
Coolidge, he said, used to be a Jehovah's Witness, a religious group that forbids smoking. He had the willpower to abstain in the presence of church members and quit for a month when he joined the sect, Cofer said.
"He hid [the habit] from church elders," Cofer said. "The evidence will show that he was in control of his smoking and when and where he smoked.
"The best evidence of his ability to control [smoking] is the fact that he quit in 2000," Cofer said. "He hasn't smoked in 41/2 years."
Prince said doctors diagnosed his client five years ago with small-cell lung cancer, a type of cancer that spreads rapidly and dramatically shortens life expectancies.
But Cofer said cigarettes didn't cause Coolidge's cancer. He told jurors Coolidge's symptoms indicate carcinoid lung cancer, which "isn't related to cigarette smoking."
He said medical experts will testify that "95 percent" of people with small-cell cancer die within one-to-two years of diagnosis.
"A person with carcinoid cancer can live five-to-10 years or longer [after being diagnosed]," Cofer said. "[Coolidge] has been able to live that long."
Shawn Khorrami, a Van Nuys lawyer who also represents Coolidge, showed jurors internal Philip Morris memos - some going back 50 years - that Khorrami said indicated company officials knew smoking was harmful to consumers.
If research shows that nicotine addiction is akin to caffeine and morphine, "we will want to bury it," Khorrami read from one document.
Cofer said such memos aren't relevant in Coolidge's case. He also said Congress forced tobacco companies to put warning labels on cigarette packets in 1964, around the same time Coolidge started smoking.
Edward L. Sweda Jr., a senior attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston, said plaintiffs' attorneys in tobacco cases have a better chance of winning at trial if they focus on cigarette manufacturers' alleged cover-ups rather than solely addressing a plaintiffs' smoking habit.
Sweda's group monitors tobacco suits nationwide.
"If a jury pays attention to the conduct of tobacco companies during the years the plaintiff was smoking and the wrongdoing in terms of consumer fraud," he said, "we're more likely to see a plaintiff's victory with high punitive damages."
Nationwide, Sweda said, plaintiffs have filed "thousands" of cases against cigarette manufacturers since the litigation started in earnest in the late 1990s. But just 68 have made it to trial. Of those, 17 resulted in plaintiffs' verdicts, according to a Morgan Stanley study published this month.
The largest verdict for a single plaintiff ever is the case of cancer patient Betty Bullock, who won a $28 billion judgment against Philip Morris in 2002 in Los Angeles Superior Court.
A judge later trimmed the award to $28 million. Lawyers on both sides are appealing the ruling. Bullock v. Philip Morris, BC249171 (L.A. Super. Ct., filed 2001).
The largest verdict in a tobacco class action is $145 billion. A Florida jury made that award five years ago on behalf of half a million sick smokers who had sued five cigarette manufacturers. That case is on appeal.
Michael J. Piuze, a Los Angeles attorney who represented Bullock and has become one of the highest-profile tobacco lawyers nationwide, said such cases tend to be uphill battles.
"With the tobacco litigation, there's never a settlement, and [the companies] will always appeal the case as long as possible," Piuze said. "They want all lawyers to know they'll never stop fighting and the cases will be the toughest, most expensive fight [plaintiffs] have ever encountered.
"Over the course of years," he said, "lawyers have heard this message, and as a result very few cases have been filed, pursued or [proceeded] to trial."
In addition to the Bullock trial, Los Angeles jurors sided with Piuze in the case of Richard Boeken, a cancer patient who got a $3 billion punitive damages award against Philip Morris in 2001. Boeken v. Philip Morris, BC226593 (L.A. Super. Ct., filed 2000).
A judge slashed the Boeken award to $100 million, and that decision is on appeal.
Piuze suffered a loss Friday when a Los Angeles Superior Court jury declined to award damages to his client, Fredric Reller of Marina del Rey, a 35-year Marlboro smoker who blamed his cancer on Philip Morris. Piuze said he does not intend to appeal that case. Reller v. Philip Morris, BC261796 (L.A. Super. Ct., filed 2001).
The jury in the Coolidge case last week denied a request by Philip Morris' attorneys to throw out the suit because it was filed outside the one-year statute of limitations.
While judges usually decide such timing issues, attorneys asked Luebs, the judge, to let Coolidge testify on the issue before the jury.
Jurors heard that Coollidge became sick in April 2000 and was diagnosed with cancer three months later. Jurors allowed the case to go forward March 1, voting 10-2 that Coolidge was not barred by the statute of limitations.
"This shows the jury is obviously considering the case very seriously, and they presumably will continue with that attitude," he said.
In the coming weeks, the Coolidge jurors are expected to hear testimony from the plaintiff and numerous medical experts on both sides.
The trial is expected to last a month, court officials said.
The Associated Press contributed to this report.
Jason Armstrong & Sean Windle
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