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• SJC says tobacco firms can't blame smokers as defense 

The Supreme Judicial Court ruled yesterday that cigarette makers cannot defend against personal-injury lawsuits by arguing that smokers should know the health risks of cigarettes and thus are responsible for harming themselves.

Cigarettes, the court said, are so dangerous that they cannot be used safely by anyone.

The ruling, believed to be the first of its kind in the nation by a top state court, said Philip Morris Inc. cannot shield itself from a lawsuit by the widow of a Douglas man who died of lung cancer by arguing that he knew cigarettes were harmful and thus had used the product unreasonably. Tobacco companies have successfully used that defense in wrongful death suits across the country.

''Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes," Chief Justice Margaret H. Marshall wrote for the court.

Although the 7-0 ruling only concerns suits against cigarette makers in Massachusetts, antismoking activists hailed it as a landmark that could bolster litigation elsewhere, if courts in other states agree with the SJC's reasoning.

''This could blow Big Tobacco out of the water," said John F. Banzhaf III, a professor at George Washington University Law School and founder of a national antismoking group. ''What the court is saying is that this product is so dangerous that the plaintiff almost never can be said to have used it improperly."

But Boston lawyers for Philip Morris disputed that the ruling in the case of Stephen C. Haglund would ripple beyond Massachusetts, saying that it will only apply to a limited number of cases here. . . .

A lawyer for the Product Liability Advisory Council, which filed a brief siding with Philip Morris, accused the SJC of ''playing Big Brother." He disputed the court's statement that ''there is no such thing as a safe cigarette," arguing that many smokers do not get sick.

''What they mistakenly assumed is that cigarettes are inevitably dangerous, they basically harm everyone," said David R. Geiger, a Boston lawyer whose group represents a wide spectrum of product makers. ''I worry that this [ruling] could be used not only in cigarette litigation but in litigation against manufacturers of all products that have inherent dangers." . . .

In the Haglund case, Fine employed a bit of legal jujitsu. He conceded that Haglund knew that cigarettes were dangerous and that he was unreasonable to take up the habit, but argued that it was irrelevant because cigarettes cannot be used safely at all.

Citing that concession, Worcester Superior Court Judge Leila R. Kern dismissed the suit. But the SJC yesterday reversed her ruling.

''This was a home run for the plaintiff," said Richard Daynard . . . .

But Geiger, the Product Liability Advisory Council lawyer, said that Philip Morris could ask the SJC to hear arguments again if the company gathers evidence showing that cigarettes can be used safely. The manufacturer might also be able to appeal to the US Supreme Court, he said.

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