Lawyers in Superior Court began today to select the first jury to try a cigarette product-safety case in 15 years.
The jurors will hear experts dispute the health effects on John M. Galbraith, a former insurance company administrator, of nearly five decades of smoking one to three packs a day. Galbraith, who suffered from lung cancer, emphysema and heart disease, died in 1982, when he was nearly 70.
A crucial issue in the case, if the jury finds that Galbraith's death was related to cigarettes, will be whether smoking is a matter of personal choice, as the tobacco industry contends, or is addictive, as plaintiffs claim.
The issue also is central to the few dozen other "second wave" cigarette wrongful-death cases pending in courts across the nation, partly because cigarette manufacturers never have warned of a possible risk of addiction.
Financial analysts and other observers say that, if a manufacturer fails to persuade a jury that a plaintiff's smoking was by choice rather than being caused by addiction, it could have major impact on the $28-billion-a-year tobacco industry.
The government estimates that smoking-related diseases cost $35 billion a year for treatment and cause 350,000 premature deaths. The industry denies that smoking has been proved to cause disease.
The Galbraith trial pits Melvin M. ("King of Torts") Belli, 77, against the R. J. Reynolds Tobacco Co., which has won dismissal of all of the 145 lawsuits that have tried to incriminate its brands as legally defective products. Galbraith mainly smoked Camels, Winstons and Salems.
Elayne Galbraith, his widow, and her three grown children seek damages for loss of earnings, loss of consortium and funeral expenses. Belli associate Paul M. Monzione said that they made an offer to settle for $450,000, but that Reynolds spurned it on the ground that the company was not liable.
Company spokesman James A. Lyock declined to comment, citing a court policy barring counsel from airing private settlement matters. But he emphasized Reynolds' own long-standing policy against settling a smoker's product-liability suit. Neither Reynolds nor any other tobacco company ever has paid a smoker who blamed a disease on cigarettes.
Presiding Judge Bruce W. Dodds never has smoked, but Belli has said he would like a jury of smokers, "because every smoker has tried to quit, and they're mad because they're addicted."
John L. Strauch, Reynolds' national coordinating counsel, was guarded when asked in an interview about the smoking habits of potential jurors, indicating that other factors such as impartiality were more important.
Nearly 150 persons were considered today for the jury, but more than half were excused, mainly because a long trial would impose hardships. Sixteen will be selected, and after hearing the case but before retiring to deliberate, they will draw lots to pick four who will be excused. By day's end, none of the 16 was chosen.
Judge Dodds excused 15 prospective jurors, including six who said they are irrevocably convinced that smoking is a matter of "free will" or free choice. Three said they had an unshakeable belief that smoking caused disease. Two identified themselves as smokers who believed the warnings of health risks were adequate. One cited "greed" as the motive of plaintiffs who sued tobacco companies.
Dodds did not excuse, at least temporarily, a man who said he would be impartial although "I had no trouble kicking my . . . four-pack-a-day habit" and would have "a hard time" believing that John Galbraith had been "coerced" to smoke.
Of an initial group of 24 prospective jurors questioned by the judge, seven said they are tobacco users, 10 said they are former users, and seven raised their hands when Dodds asked if they had a "close friend or relative who died of something that somebody thought was related to smoking."
In an appearance with Strauch on the ABC program "Nightline" last week, Belli quoted Elayne Galbraith as saying her husband's "whole being cried out for cigarettes, he was so addicted." Belli also quoted John Galbraith as saying: "I was so addicted, I couldn't give it up. I just couldn't."
Strauch, rejecting the addiction claim, termed it "an angle designed to deal with the personal responsibility, personal accountability problem which this litigation quite properly involves at its core," and said 35 million persons have quit smoking in the last 15 years. He said the claim is "best belied" by the U.S. Surgeon General's advisory committee's 1964 report. It said:
"The tobacco habit should be characterized as an habituation rather than an addiction, in conformity with accepted World Health Organization definitions, since once established there is little tendency to increase the dose; psychic but not physical dependence is developed; and the detrimental effects are primarily on the individual rather than society. No characteristic abstinence syndrome is developed upon withdrawal."
The once-sharp distinctions between tobacco and/or drug "addiction," "habituation" and "dependence" have become increasingly blurred, however, setting off disputes that will flare anew at the Galbraith trial.
In 1969, a World Health Organization expert panel said that "drug dependence" is characterized by responses that "always include a compulsive desire to take the drug on a continuous or periodic basis in order to experience its psychic effect, and sometimes to avoid the discomfort of its absence."
Ten years later, Joseph A. Califano Jr., then secretary of Health, Education and Welfare, cited surveys showing that 9 of 10 smokers "have either tried to quit smoking or would try to quit, if only they could find an effective way to do so."
In 1982, the National Institute on Drug Abuse labeled smoking "addictive," and Dr. Jack E. Henningfield of NIDA's Addiction Research Center said animal and human studies indicated that nicotine is a dependence-producing drug similar in many respects to cocaine and morphine. In a new report a year ago, Henningfield said that "cigarette smokers may become addicted to nicotine."
But the West German government said three months ago, "No major dependence, in the sense of addiction, has been proven to be caused by the consumption of tobacco products."
Among the handful of "first wave" smoking trials, the last of which ended in April 1970, were these results:
*Two juries, instructed that the plaintiffs had the burden of showing definitively that the defendants reasonably could have foreseen the risks, returned verdicts against the plaintiffs. One of the plaintiffs was represented by Melvin Belli, and the defendant was R. J. Reynolds.
*A third plaintiff established that cigarettes had caused his lung cancer and won the first trial, only to be required by the judge to show, at a second trial, that the same brand had caused fatal lung cancer in other smokers. The judge refused to let the plaintiff introduce the 1964 Surgeon General's report as evidence, and he lost. Six appeals followed and, finally, after 12 years of litigation, the Supreme Court denied his petition for review.
*A fourth plaintiff lost after conceding he was unprepared to show the jury that the producer could have foreseen the risks.