Over the years, cigarette smokers in 145 lawsuits have blamed Camels, Winstons, Salems, and other R. J. Reynolds Tobacco Co. brands for often fatal lung, heart and other diseases. All of the suits were dismissed.
This week the company faces the first trial in the so-called "second wave" of cigarette product-liability litigation. The trial -- in Superior Court in Santa Barbara, Calif. -- is drawing wide news media attention, partly because the law firm of Melvin M. Belli, crowned the "king of torts" by Life magazine in 1954, represents the plaintiffs in the case of Galbraith vs. R. J. Reynolds.
Although Reynolds' practice has been to decline to comment on pending cases, it took an unprecedented step in arranging two days of press interviews last week for John L. Strauch, its national coordinating counsel in charge of the 35 second-wave cases currently pending against the company.
Strauch said he decided to meet with reporters because of the "considerable public interest" in cigarette litigation and to clear up some misperceptions. He would not comment on observers' description of the move as a pre-emptive strike reflecting his confidence that he will win in Santa Barbara.
"We have an unblemished track record up to now," Strauch said. "I anticipate that will continue to be the case."
For more than two hours, he declined to discuss the Galbraith case specifically, but fielded questions on a broad range of general issues in responses that also suggest the general direction the defense may take.
His responses mostly restated long-held Reynolds and industry positions. For example, he defined "the central character" of the cases to be "about personal choice and personal responsibility and personal accountability."
He bucked corporate policy questions to James A. Fyock, group public relations director of the parent R. J. Reynolds Industries, who sat in on the interview. Fyock, asked whether the company had product-liability insurance, said, "That's a proprietary matter which we simply can't discuss."
Strauch, president of the Cleveland Bar Association, cited the canons of ethics in declining to discuss the Galbraith case. Meanwhile, his client gave reporters a factual "discussion paper" containing strong hints as to why Reynolds is optimistic. Paul M. Monzione, the Belli associate in charge of the case, did not reply to a reporter's request for comment on the paper.
The case revolves around John M. Galbraith, an insurance company administrator from 1947 until he retired in 1968, who started smoking in 1930, when he was 19, and continued for 48 years, allegedly smoking three packs a day. The discussion paper referred to evidence disputing the allegation about how much he smoked and additional evidence that physicians and family members warned him as early as the late 1930s to stop smoking.
His wife, Elayne, has said he tried, but failed, to break what she calls his addiction. Even after he was stricken with emphysema and a type of lung cancer associated with smoking, he'd pull off the oxygen mask he began to wear full-time in April 1978 to sneak a drag on a cigarette, she said.
Belli lost a jury trial of one of the first smoker's cases in 1960. Last July, he called the tobacco companies "bastards" at a lawyers' meeting in July. That was four months after The American Lawyer put this headline on a long cover story on Belli, by then 77: "Clients Beware: Use of This Once-Great King of Torts and his Ever-Changing Band of Associates May be Hazardous to Your Case."
At Mrs. Galbraith's request, Belli took her husband as his stellar client, pledging to donate his share of a putative award to cancer research. He filed a suit accusing Reynolds and another tobacco company, which later was dropped from the case, of willful misconduct and asked $100 million in punitive damages. Galbraith died a short time later, on July 23, 1982 -- eight days before he would have turned 70.
His survivors -- Elayne and the Galbraiths' three grown children -- then became the plaintiffs. In May, a judge struck punitive damages from the suit by ruling that the survivors could maintain only an action for wrongful death. Compensation for wrongful death is limited to loss of earnings, loss of consortium and funeral expenses.
The complaint alleges that Reynolds' "negligence" and its "carcinogenic" and "defective and unsafe" cigarettes "were the direct and proximate cause" of Galbraith "developing cancer of the bronchi."
In the death certificate, by contrast, the Reynolds paper says, Dr. George Fisher, the primary treating physician, listed the cause of death as "arteriosclerotic heart disease and pulmonary fibrosis lung scarring " and called lung cancer and emphysema factors "contributing but not related to the immediate cause of death."
The company says Fisher has testified that the fibrosis was not related to smoking, that radiation therapy in late 1979 left him able to detect "no trace" of lung cancer, and that, in the month before Galbraith died, the cancer gave "no evidence of recurrence."
Reynolds also terms the family medical history "notable." His father died at 64 of heart disease, the paper says. One brother died at 39 and another at 52, both of heart attacks, while his mother died at 49 of tuberculosis.
"Mr. Galbraith outlived his parents and his brothers by at least five and as many as 30 years," the company said. "Discovery in the case indicates that these relatives were nonsmokers."
The biggest question raised by the Galbraith case is what impact the jury's verdict -- whatever it may be -- may have on other cases. Attorney Strauch said he sees no far-reaching consequences "if one of these cases, a couple of them, are lost -- and I don't anticipate that they will be. . . . "
This serene view is not shared by financial analysts and others, including Matthew L. Myers, staff director of the Coalition on Smoking or Health, consisting of the American Cancer Society, the American Heart Association, and the American Lung Association.
"If the plaintiffs were to lose because of individual unique factors related to Mr. Galbraith's health, it would have virtually no impact on the other product-liability cases pending around the country," Myers said in an interview. "On the other hand, if the Galbraith family should win in this case, then the floodgates will have been opened, and the long-term impact on the tobacco industry would be very substantial."
Professor Teresa Schwartz, a specialist in product-liability law at George Washington University National Law Center, figures that 10.5 million Americans may die prematurely from smoking between 1985 and 2015. "If only 5 percent of the victims brought claims, there would be 17,500 suits a year," she said in an interview. She based her numbers on the government's estimate that smoking causes 350,000 avoidable deaths annually.
Strauch spent much time trying to deflate such estimates by emphasizing positions the cigarette companies will take in litigation. For example, they will cite studies showing that 90 percent of all smokers do not get lung cancer, that 15 percent of those who do get it are nonsmokers and that 35 million Americans have quit smoking.
He also stressed such "confounding perplexities" as this: The average age of onset of lung cancer is 67 -- "in people who smoke heavily, in people who smoke lightly, in people who smoke a short time and in people who smoke a long time, and -- this is significant -- in people who have never smoked at all."
A new issue in the second wave of tobacco cases is addiction. In 1983, Dr. William Pollin, director of the National Institute of Drug Abuse, called cigarette smoking "the most widespread example of drug dependence in this country" and declared tobacco to be more addictive than alcohol or heroin. A House subcommittee went on to urge that one of the new rotating warnings say that smoking "is addictive and may result in death."
"What has the test for addiction traditionally been?" Strauch asked. "It's traditionally involved increasing the dose. . . . Does that apply to cigarette smoking? Obviously not.
"Another classic test has been traumatic, difficult withdrawal symptoms of a physical nature. To equate cessation of smoking, as some people do but many people don't -- with some degree of irritability or nervousness of the kind associated with going on a diet or stopping any habit that people want to do -- to equate that with something like heroin just doesn't make any sense. . . .
"What's happened here in recent years is that the addiction definition has been expanded and changed and broadened by some people in an effort to throw a very, very wide net that's going to pick up tobacco.
"And the problem with that is that the definition of addiction loses its credibility and it ends up picking up chocolate and coffee and tea and jogging and things like that . . . . "
To uphold his key contention that "the causative link between smoking and diseases it is said to be associated with has not yet been established by adequate scientific evidence," Strauch repeatedly cited a sentence in the 1964 report in which the surgeon general's advisory committeee concluded that smoking is causally related to lung cancer in men. The sentence: "The committee was aware that the mere establishment of a statistical association between the use of tobacco and a disease is not enough."
Strauch did not mention that, seven pages earlier, the committee set out the criteria it had used to incriminate smoking, making it clear that it had used more than the simple statistical association.
"The causal significance of an association is a matter of judgment, which goes beyond any statement of statistical probability. To judge or evaluate the causal significance of the association between the attribute or agent and the disease, or effect upon health, a number of criteria must be utilized, no one of which is an all-sufficient basis for judgment," said the report, which did not hang its assertion about smoking only on the statistical association.
Asked about the tobacco company's selection from the report, Surgeon General C. Everett Koop said, "To take one sentence out of a report and quote it out of context with the thrust of the entire report is not just a matter of semantic difference, it is dishonest."
Koop also charged that, "For nearly 30 years, cigarette companies have tried to protect their business and their profits by saying that there is no conclusive proof that cigarette smoking causes disease and premature death. . . . They consistently ignore 50,000 studies. I can't think of anything else that's been proved 50,000 times."