Superior Court Judge Bruce W. Dodds told Melvin M. Belli, representing plaintiffs in the first cigarette product-safety case in 15 years, that he could not refer in his opening statement to the U.S. Surgeon General's annual reports on the dangers of smoking.
Belli, representing the survivors of a smoker who are suing the R. J. Reynolds Tobacco Co., said Dodds' order, issued in chambers, dealt his side a serious blow. Outside the courtroom, he complained, "If we can't go into that, we might as well pack up and go home." He told his associate, Paul M. Monzione, "What the hell can I do in (my) opening statement? Be in contempt?"
Monzione said he was preparing an emergency appeal to stay the trial until the issue is resolved by the state's appellate court.
Opening statements are "crucial" in a product-liability case, according to an article in the November issue of Trial magazine, published by the Association of Trial Lawyers of America.
The author, Thomas L. Long, a Columbus, Ohio, trial lawyer, said that "jurors believe what they hear first. In fact . . . University of Chicago jury studies showed that in as many as 80 percent of cases, jurors decided the issue of liability at the end of (the) opening statement."
Meanwhile, the jury selection process continued today. Belli, Reynolds attorney Thomas E. Workman Jr., and L. Donald Boden, representing two stores also named as defendants, each were allowed to dismiss eight prospective jurors without explaining why.
For Belli, the most obvious targets were prospective jurors who appeared hostile to his claim that smoking is addictive and causes lung cancer, and that government-mandated warnings do not insulate tobacco companies from liability.
Workman targeted prospective jurors who indicated a possible irreversible tilt against key defense claims, particularly that smoking is a matter of free choice and not addictive, and has not been shown to cause lung cancer or other diseases. But if cigarettes in fact carry risks, he also claims, smokers have been adequately warned.
Belli claims that smoking shortened the life of Joh M. Galbraith, a former insurance company administrator who died in 1982, by inducing lung cancer, emphysema, and heart disease, and that radiation treatments for lung cancer exacerbated the pulmonary fibrosis, or lung-scarring, that was listed as the immediate cause of death.
Workman denies that Galbraith died of lunch cancer, and asserts that if he had had the disease, smoking was not the cause. He also claims that Galbraith's personal and family medical histories show that he had been genetically prone to heart and vascular problems and that the pulmonary fibrosis and congestive heart disease that caused his death were unrelated to smoking.
One of the prospective jurors dismissed by Belli was Judy Bovee, an administrative assistant for a research and development company who smokes two-and-a-half to three packs a day and has smoked for more than a quarter-century.
"I obviously enjoy it or I wouldn't be doing," Bovee told Workman. She said she doesn't believe smoking has been incrimiated as a cause of lung cancer, adding, "I don't think that because you smoke you're going to get lung cancer."
Nancy Cuellar, a pre-school teacher who runs a janitorial service on the side, was asked if she believed smoking caused lung cancer. "No, I don't," she replied. Belli exercised his second peremptory challenge against her.
Belli also struck Dorothy Welch, who said she began to smoke about 40 years ago after a doctor suggested smoking as a way to lose weight; she said she lost about 50 pounds. Cigarettes could have "some effect" on lung cancer, "but so many die who don't smoke," she said.
Workman's first target was John W. Cook, a retired philosophy professor who has smoked two packs a day for 35 years. "I feel I'm addicted," he said. He said he once had signed up for sessions at antismoking clinic. But, he said, he was unable to continue "because I became convinced that it would be fruitless to do so."
Workman also dmissed Ruby Fidler, a secretary who has smoked for 30 years but who also believes that smoking contributes to cancer, and who said she persuaded her son to quite smoking "because he's young."
No tobacco manufacturer has ever lost a smoking product-liability case or paid any money in a settlement with a plaintiff in such a case.