Pubdate: Sat, 11 Oct 1997 Source: Houston Chronicle Page: 1 Contact: Webpage: http://www.chron.com/ Attendants win latest smoking settlement By JOHN SCHWARTZ Washington Post Copyright 1997 Houston Chronicle News Services The tobacco industry, which for decades bitterly fought every smokingrelated lawsuit, Friday announced the latest in a series of recent settlements a $349 million deal to end a landmark classaction suit over secondhand smoke. By settling the case, the industry halts a lawsuit that appeared to be going against it and clears a potential roadblock to its muchdesired national tobacco settlement. The airline flight attendants who filed the $5 billion lawsuit in Florida get a $300 million foundation for the study of diseases associated with tobacco smoke, including early detection and possible treatment and cures. "We have accomplished a huge amount of what we set out to do," said Norma Broin, 42, a nonsmoking former American Airlines flight attendant from Stafford, Va., whose lung cancer was diagnosed in 1989 and who was the lead plaintiff in the case. "This was never about money to me. It was about exposing the lies, deception and fraud." The companies Brown & Williamson Tobacco, Philip Morris, R.J. Reynolds Tobacco and Lorillard will not pay money directly to flight attendants, and did not admit in the settlement that secondhand smoke causes disease. To the contrary, Brown & Williamson issued a statement saying that secondhand smoke "is certainly an area in which we feel that social policy issues have overridden an objective scientific evaluation of the evidence." The Florida settlement comes in the wake of two other major settlements by the industry within the last six months: Cigarette makers settled suits filed by the states of Mississippi and Florida seeking reimbursement for tobacco related health care costs. The proposed $368 billion national settlement of lawsuits against the industry is being considered by Congress, and Friday's deal ensures that no surprises from the Florida case will upset that delicate process. An industry statement called the settlement "a common sense approach to resolving the class action aspects of the case in a way that is consistent with the much broader legislative resolution now pending before Congress." Under the terms of Friday's settlement, any former flight attendants will be able to file individual suits against the industry even those for whom the statute of limitations on filing suit would otherwise have already run out. "The thousands we would have lost they will get their day in court," Broin said. This would not conflict with the proposed national settlement because the proposal does not restrict the ability of individuals to sue the industry. That broader deal would, however, ban further group lawsuits and punitive damages; it also would put a $2 billion cap on the amount that the industry would have to pay out in a given year, giving the industry a measure of financial predictability that it craved. The terms of the agreement also shift the burden of proof for the fundamental question of whether secondhand smoke causes certain diseases such as lung cancer. Until now, those attacking the industry had to prove that smoke caused their illness; after the settlement, however, it would be up to the industry to disprove it. Lawrence Gostin of the Georgetown University Law Center said that the tactical change from the industry's previously feisty stance to the series of settlements was stunning. "They have lost their resolve in a miraculous way and seem to have lost their will to fight," he said. The new industry strategy is risky, Gostin said. "They have left themselves wide open to an avalanche of individual litigationnot just from workers in the airline industry, but in all venues of society. ... It opens up a whole other front in the tobacco wars," Gostin said, because "they're not going to be facing smokers," who are generally thought by juries to have assumed the risks of smoking. Gary Black, a tobacco industry analyst with Stanford C. Bernstein & Co., disagreed, saying the settlement served the industry's longterm interests. "The industry was smart to settle this," said Black, who pointed to a number of rulings that went against the tobacco companies in the case in recent weeks. The specter of the national settlement proposal has caused many judges to have little patience with the drawnout lawsuits in their courtrooms, Black said. In the Florida case, Judge Robert Kaye refused to allow industrypicked experts to testify extensively about other possible causes of cancer in flight attendants, including the greater prevalence of cosmic radiation at high altitudes. Black also said that the industry needed to settle the case to ensure that the attorneys who brought it would not later file a constitutional challenge to the national settlement that might derail the process. Richard Daynard, who heads the Tobacco Products Liability Project at Northeastern University, argued that part of the reason the tobacco industry has suffered so many recent setbacks in court is because the lawsuits that are being filed are stronger than in the past. "When your kids come and say "I have this problem this teacher is really unfair, this other teacher is really unfair; the next one hates me and this other one won't give me a fair chance,' eventually you get the idea that the problem may not be the teachers," Daynard said. The $5 billion lawsuit, waged by husbandandwife team Stanley and Susan Rosenblatt since 1991, was the first classaction lawsuit of any kind against the tobacco industry to go to trial. The class grew to include 60,000 nonsmoking flight attendants who claimed injury from breathing secondhand smoke before the 1990 ban on much in flight smoking. Other lawyers initially considered the case relatively weak, in part because the scientific evidence that secondhand smoke can cause disease is not considered as strong as the link between smoking and disease. The Rosenblatts will receive $49 million in fees and costs in the settlement.