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Top Defense Verdicts: Medical Data Turn Back Nonsmoker's Tobacco Case  

Fontana had been a flight attendant for 25 years, until she quit in 1996 because of her deteriorating lung function. She had never smoked and her only exposure to tobacco smoke was on the job. . .

The defense focused on attacking causation. The defense asserted that Fontana had been diagnosed with sarcoidosis, but not emphysema or chronic obstructive pulmonary disease.

"We tried to convey to the jury that the medical or scientific literature established a lack of a link between smoking and sarcoidosis," Engram said.

"We thought we might be too technical," he noted. So the defense produced a diagram to prove its point that exposure to smoke neither caused nor aggravated her lung disease.

The chart covered the last four years Fontana was a flight attendant. "These were the years she was sickest," Engram said.

"The chart showed that when she went to her lung doctor bore no relationship to the dates she flew," Engram noted.

If the environmental smoke had exacerbated her lung problems, he said, she would most likely see the lung specialist after flying.

This did not occur, Engram said. He knew the defense had scored well with this point when during deliberations, "the jury asked for that chart."

The plaintiff was seeking nearly $4 million in economic damages alone, but on April 5, 2001, a Miami jury returned a complete defense verdict. Post-trial motions were denied in September. The verdict will be appealed.

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AHLERT: America's End: Not With A Bang, But A Lawsuit 

Ailing flight attendants have 3,100 more cases that "tobacco lawyer" Jonathan Engram said would be "vigorously pursued."

Translation: We lost this one, but we've got 3,100 additional shots at getting just one jury dopey enough to come down on our side, even though all we've got is junk science on second-hand smoke. All we need is one, and we'll line our pockets like nobody's business. Flight attendants are the tip of the iceberg. Office workers, waiters and everyone else with a job where someone is smoking will line up to sue, even if all they've got is a sinus attack. With 31 million cases going, we're bound to win some.

Are you getting tired of it yet? [This graph only]

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• Tobacco lawsuits not snuffed out yet 

Nonsmoking flight attendants who fear that Marie Fontana's courtroom defeat last week dooms their cases should take heart. Most of them still have a good chance against the tobacco industry, and the Boca Raton woman's defeat is not as significant as a victory would have been, experts say.

A jury award in favor of a plaintiff could still be a "catastrophe for the tobacco companies," said Joseph Daly, a professor at Hamline University Law School in Minnesota who follows tobacco litigation. "It would set up the fear factor in the tobacco companies ... they'd know they've got all these other cases out there and maybe they'd better find a way to get rid of them." . .

Upon the loss of their flight attendant cases, Fontana's lawyers quickly pointed out just how unique her case was. She is the only plaintiff to suffer from a lung disease called sarcoidosis. Doctors and scientists are stymied as to what causes this progressive disease.

And lawyers for Philip Morris, the country's largest tobacco company, agreed. In fact they capitalized on the unknown nature of the disease when presenting their defense to the jury in the three-week trial. . .

But it appears that the case next up in the mass of litigation is that of a nonsmoking flight attendant who developed lung cancer, said Miles McGrane, a member of the legal team assembled to represent the flight attendants. . .

Victory in flight attendant cases might be the incentive for a whirlwind of similar litigation to be filed by bartenders, waitresses and a whole slew of people who worked in areas where they were involuntarily exposed to secondhand smoke, said Woody Wilner

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AUDIO: Tobacco Case 

NPR's Debbie Elliott reports a flight attendent today lost her second-hand smoke lawsuit against the tobacco industry.(2:00)

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• EDITORIAL: One battle over; war continues 

A Miami jury's verdict in a civil case against the tobacco industry is deeply disappointing to those who know the deadly dangers of secondhand smoke. That includes top medical experts who have studied it and tens of thousands of victims of its life-threatening risks.

The verdict is a setback in the continuing battle to hold Big Tobacco legally accountable for knowingly selling a deadly product. . .

Secondhand tobacco smoke, curling off people's lit cigarettes and exhaled from their lungs, is not just a matter of unpleasant odors and clouds of noxious fumes. It is a matter of life and death, especially in enclosed places with little outside air circulation like airline cabins. . .

Not guilty? Not hardly.

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Jury rejects secondhand smoke suit 

They were asked one threshold question on the verdict form: ``Was environmental tobacco smoke on airplanes where plaintiff Marie J. Fontana worked a legal cause of damage to the plaintiff?''

Their answer: ``No.''

One of the jurors, reached later by phone, said the panel was not convinced that secondhand smoke caused her respiratory illnesses.

``There was not a lot of evidence to support her suit against the tobacco industry,'' said Melvin Galeano of Miami. ``It was hard. Maybe in another case, it will be different.'' . .

In the mid-1980s, the U.S. Surgeon General issued the first report linking secondhand smoke to possible respiratory illnesses. But the message took a while to catch on with the public and airline industry, which is not a defendant under the flight attendants' settlement. . .

William Ohlemeyer, chief legal counsel for Philip Morris, the nation's biggest cigarette maker, said it's difficult to point to Fontana's verdict as a ``bellwether.''

``But it was important because it was the first case,'' Ohlemeyer said in a phone interview from New York. ``It demonstrates we have a persuasive defense and that these are difficult for plaintiffs to successfully try.

``The vast majority of these cases don't involve cancer,'' he said. ``They involve unspecific respiratory complaints and diseases that are not typically associated with cigarette smoking and environmental tobacco smoke.''

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Tobacco Wins First in Series of Secondhand Smoke Suits 

Jurors in Miami on Thursday found that secondhand smoke did not cause the lung disease of a former airline flight attendant, handing a victory to the tobacco industry in the first trial of more than 3,000 individual suits claiming injuries from breathing the air in smoky airline cabins.

The jury in Miami-Dade Circuit Court deliberated less than a day before finding that cigarette makers are not responsible for the severe respiratory ailments of Marie J. Fontana, 59, a former flight attendant for Trans World Airlines.

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• Florida Jurors Side With Tobacco Firms In Lawsuit Brought by Flight Attendant 

3?3?nblatts, a husband-and-wife team, won a $144.87 billion punitive-damage verdict -- the largest ever in the U.S. -- against the tobacco industry last year in a separate class-action case.

"These individual claims are among the toughest tobacco cases to bring" because jurors are skeptical about the dangers of second-hand smoke, said Martin Feldman, a tobacco analyst at Salomon Smith Barney. He predicted that if the industry wins a few more of the flight-attendant cases, then "no more than a handful will ever make their way to trial." It's expensive to bring such litigation, and with little chance of victory, similar cases would more likely be dropped, he said. [Here's the free story]

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• Jury clears Big Tobacco in former flight attendant's illness 

"There wasn't a lot of evidence that the cigarette smoke made her sick," said juror Melvin Raul Galeano, explaining the six-member panel's decision not to award Marie Fontana any money. . .

Claiming scientific evidence was on his side, tobacco lawyer Jonathan Engram said the industry would vigorously pursue every one of the 3,100 additional cases . . .

"For the most part they are frivolous lawsuits involving chronic sinusitis cases," said Engram, who represented R.J. Reynolds. . .

Galeano said he and other jurors would have liked to have heard Fontana's treating physician take the witness stand and tell them that she has emphysema or some other disease specifically caused by secondhand cigarette smoke that clogged the airline cabins she worked in for 26 years. . .

During about five hours of deliberations, the jurors pored over medical records looking for any indication from Fontana's doctors that she had emphysema or chronic bronchitis, both of which her lawyers said contributed to chronic obstructive pulmonary disease.

They could not find it, Galeano said. . .

Fontana's lawyers showed the jury what had once been a secret industry memo regarding secondhand smoke in airplane cabins.

The memo, called an "action plan," instructed industry officials to shift focus from the build-up of smoke in cabins and its possible dangers and toward the efficiency of ventilation systems in the aircraft.

"The tobacco companies have done terrible things, but that doesn't necessarily prove that secondhand smoke was the cause of this woman's disease," said Joseph Daly, a law professor at Hamline University Law School in Minnesota.

"And that has been the problem in all these tobacco cases historically," said Daly, who has followed tobacco litigation since a class-action case in that state prompted the release of many secret and damaging industry documents that are now used in most cigarette cases.

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Cigarette Makers Not Liable in Second-Hand Smoke Case (Update2) 

Philip Morris Cos. and other U.S. tobacco companies aren't liable for what may be the fatal illness of a veteran flight attendant who blamed second-hand smoke for her ``death sentence,'' a Miami jury decided.

The six jurors deliberated a little less than six hours before rejecting a claim by former Trans World Airlines Inc. flight attendant Marie Fontana. . .

``Her illness is not caused by exposure to environmental tobacco smoke,'' said Ken Reilly, a lawyer for Philip Morris and Loews Corp.'s Lorillard Inc. unit. This is ``hopefully a clear indication of what should happen with the remaining cases.''

An attorney for Fontana said the case doesn't necessarily mean the end of thousands of other pending second-hand lawsuits by flight attendants.

``The jury's not always right,'' said Philip Gerson, a lawyer for Fontana. He said the case was pushed to trial faster than other flight attendant suits because Fontana's health is failing.

``If we didn't get a trial now, she probably wouldn't live long enough to get a trial,'' he said.

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Lorillard Tobacco Company Comments On Verdict in Fontana Environmental Smoke Trial 

``We are pleased with this verdict,'' commented Ronald Milstein, Lorillard's Vice President and General Counsel. ``The jury fairly considered the evidence, used its common sense, and found that the plaintiff's ETS exposure had nothing to do with the plaintiff's injury.''

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Miami-Dade Circuit Court Delivers Positive Verdict for Brown & Williamson Tobacco Corporation 

The jury found that ETS in airline cabins was not the cause of Marie Fontana's injuries.

The court victory is the seventh straight win for the tobacco company since January 1, 2001.

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Miami Jury Rejects Damage Request in First Flight Attendant ETS Trial 

``The plaintiff is suffering from a terrible disease, but it is a disease that is not associated with exposure to tobacco smoke,'' said William S. Ohlemeyer, Philip Morris vice president and associate general counsel.

``We fully understand the sympathy that everyone - including the jury - must feel for Ms. Fontana under these circumstances, but the jury's verdict was the correct one based on the evidence presented and the applicable law,'' he said.

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R.J. Reynolds Tobacco Company Wins Secondhand Smoke Suit 

``After hearing all the facts in this case, the six-member jury unanimously agreed that nothing the tobacco companies did had any impact on the illnesses that Marie Fontana claims to have,'' said Daniel W. Donahue, senior vice president and deputy general counsel for Reynolds Tobacco.

``This verdict is a victory for scientific evidence and should put plaintiffs' attorneys on notice that these types of contrived lawsuits do not pass muster with the public.'' . .

``This case should never have gone to trial,'' Donahue said. ``Because of an order issued by Circuit Court Judge Robert Kaye last October, Reynolds Tobacco and the other defendants in this case were improperly prevented from presenting most of the evidence that is typically presented in product liability cases, and which should have been allowed in this case.

``Even so,'' he said, ``the jury found that the plaintiff did not show that secondhand smoke caused the illnesses she claims to have.''

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• Cigarette Makers Beat Back Secondhand-Smoke Claim 

U.S. cigarette makers defeated the first of about 3,200 individual secondhand-smoke claims on Thursday, when a Miami jury ruled the companies had no liability for the lung ailments of a former flight attendant.

The six-person jury spent less than a day deciding against Marie Fontana, 59, a former TWA flight attendant who relies on portable oxygen tanks and who blames her sarcoidosis on passengers smoking on planes.

``There is no liability for the defendants,'' a Miami court official said. . .

Vice President Ronald Milstein of Lorillard Tobacco, a unit of Loews Corp and also a defendant, said the jury had ``used its common sense, and found that the plaintiff's (secondhand smoke) exposure had nothing do with the plaintiff's injury.

Tobacco analyst Bonnie Herzog of Credit Suisse First Boston said Fontana, who testified while using breathing apparatus, was among the most sympathetic of the secondhand smoke claimants. The loss may prompt other plaintiffs to back away from trial, she said.

``This is good news (for the tobacco industry), and we would expect the industry to continue to win the vast majority of these cases going forward,'' Herzog said.

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