LEXINGTON, MISS., JAN. 28 -- A jury that is deliberating a $17 million product liability lawsuit against American Tobacco Co. retired this evening after telling Holmes County Circuit Judge Gray Evans that an immediate verdict was not in sight.

Plaintiffs in the case, the family of Nathan H. Horton, blame Horton's longtime smoking of American Tobacco Co.'s Pall Mall cigarettes for the emphysema and lung cancer that caused his death a year ago at age 50.

The company says Horton smoked as a matter of free choice and that cigarettes did not and could not cause the particular lung cancer that killed him.

In a key instruction to the jury, the judge said American Tobacco can't be held liable for selling "ordinary cigarettes."

Instead, he said, the jury would have to find that the cigarettes contained contaminants such as pesticide residues, poisons or carcinogens capable of causing emphysema and/or lung cancer, and that the contaminants "were in themselves a contributing proximate cause of his emphysema, lung cancer and death."

Evans said that to award punitive damages, the jury must find that American Tobacco "in either failing to properly test or, having tested, failing to remedy an unreasonably unsafe condition disclosed by testing, acted deliberately, willfully, or in reckless disregard of the rights, health and safety of the public, including Nathan Horton."

In addition, the judge said that in order to find Horton negligent, "you must find from a preponderance of the evidence that a reasonably careful person would not start or continue to smoke."

In closing arguments, one of the sharpest disputes during the trial arose because expert witnesses for the defense were paid, while those for the plaintiff testified without fee.

Plaintiff's lawyer Don Barrett said that one defense medical expert got "more than $3,000 just {for} traveling from the Virgin Islands," where he lives.

Defense attorney Jim Upshaw responded that the compensation of the defense experts was routine, saying they were paid because they had left their businesses or jobs.

Defense attorney Ed Blackmon Jr. said that "our consultants charged for their time," while appearing to scorn what he termed the "virtue" of the noncharging defense experts.

Blackmon became particularly heated in discussing a star expert witness for the defense, pathologist Elena Perry Thornton of Morehouse College in Atlanta.

He said the plaintiff's lawyers were impugning her motives, implying "she's for hire. ... Give the lady some money and she'll say whatever you want her to say."

"That lady's motive was to tell the truth," Blackmon told the jury.

Plaintiff's lawyer Don Barrett deplored defense counsel for having "ridiculed" physicians and scientists including Dr. LaSalle D. Leffall Jr., chairman of the Department of Surgery at Howard University, and a past president of the American Cancer Society, and Dr. Charles A. LeMaistre, president of the famed M.D. Anderson Hospital and tumor institute in Houston.

The Horton case is drawing national attention because of a widespread belief that it may end the tobacco industry's unbroken record of victories against smokers who have filed lawsuits blaming cigarettes for disease or injury.