PERMITTED SMOKING

By Thomas Ginsberg,  November 13, 1999


A big victory for nonsmoker made ill by coworker's cigarettes
Teacher Donald Magaw, whose coworker smoked in their office for 26 years, won against a North Jersey district.

Gym teacher Donald Magaw spent most of his career sharing a tiny, unventilated locker-room office with his heavy-smoking friend Robert Anderson.  After 26 years, Anderson retired and quit smoking.  And within months, Magaw learned he had cancer.

This week, in a unique anti-smoking case with a refreshing tone of forgiveness between friends, Magaw finally forced the Middletown School District, in Monmouth County, to compensate him for five years of treatment of his rare tonsil cancer, apparently caused by secondhand smoke. "I
don't hold any ill-will against Bob," Magaw said yesterday.  "The tobacco industry did a great job of hiding everything from the world.  If the blame is to be put on anybody, it should be put on the tobacco industry."

Magaw, 55, was awarded about $53,000 for medical costs and $20,000 for legal costs, plus any future medical costs and permanent disability payments. He had sought medical coverage, compensation for lost work time, and future disability payments after being diagnosed in 1994. He said the cancer was caused by his breathing Anderson's cigarette smoke every weekday for 26 school years in the windowless, closet-sized office shared by three gym teachers. Magaw never smoked or drank, the two factors suspected - but not proven - to be risks for tonsillar cancer.

"Nobody knew that maybe it was affecting us," Magaw said.  "I would've gone someplace else. But . . . all the teachers' lounges were smoking areas, so it was either one cigarette or 50."

The district, representing Thorne Middle School in Port Monmouth, where Magaw worked with Anderson from 1968 to 1994, initially refused to pay, asserting that his illness was not caused by conditions at work. A New Jersey workers' compensation judge ruled for Magaw in 1998, and the ruling was upheld on appeal by a three-member Appellate Court panel last summer.

On Nov. 5, the state Supreme Court refused to hear the district's second appeal, letting the lower court ruling stand. Federal courts do not hear state disputes over workers' compensation.

... John Banzhaf, executive director of Washington-based Action on Smoking and Health, an anti-tobacco litigation group, said all rulings on secondhand smoke indirectly help lay the groundwork for bigger rulings.  "Usually, the breakthroughs come in the most extreme cases
like this," Banzhaf said. "But once the breakthrough occurs, juries read the papers, and it's much easier the second time around."

Anderson, according to an estimate by the court, probably had smoked 45,000 cigarettes in Magaw's presence over the years. Magaw said he recalls Anderson quit smoking after
retiring in 1994. Anderson could not be reached for comment. "I wish him the best and I hope that his smoking doesn't eventually come back to haunt him," Magaw said. "I wouldn't want anyone to go through what I went through."

Added 15 November  1999