[Virginia GASP]  VICTORIES - 2nd hand smoking lawsuits

Secondhand smoke case -- settled favorable to the plaintiff, January 19, 2006 shortly before it was due to go to trial, and 10 years after Larry Ray Thaxton had filed the case.  A life-long non-smoker, Thaxton died of lung cancer at the age of 40, and his widow continued the case.  Below is information on this from Edward L. Sweda, Jr., Senior Attorney, Tobacco Control Resource Center in Massachusetts, U.S.A.


Employer's liability for failing to provide a safe and healthful workplace free from deadly exposure to secondhand smoke was at issue in this case.  See Thaxton v. Norfolk Southern Railway Co., et al., 229 Ga. App. 18, 520 S.E. 2d 735 (1999)).

This lawsuit was filed on February 12, 1996 by Larry Ray Thaxton, who named as defendants Norfolk Southern Railway Co. and its subsidiary, Alabama Great Southern Railway Company. In November 1995, Mr. Thaxton, who was born in 1956 and a lifelong nonsmoker, was diagnosed at age 39 with lung cancer; he died in May 1996 at the age of 40. After a post-mortem autopsy, he was determined to have died from lung cancer. His widow, Jacqueline Thaxton, continued with the case.

From age 26 until the time of his death, Mr. Thaxton was a railroad worker employed by the Norfolk Southern Railway in an outdoor job on various sites far from his home. During the week, he was housed in bunk trailers in various campgrounds provided by the railroad. Mr. Thaxton regularly complained to his employers about his constant involuntary exposure to secondhand tobacco smoke from co-workers in the bunk cars where he lived during the work week.

A quantitative risk assessment incorporating experimental measurements of secondhand smoke concentrations in a typical bunk-trailer indicated that Mr. Thaxton's work-related secondhand smoke exposure doubled his odds of lung cancer death.

The railroad contended that Mr. Thaxton was not exposed long enough, nor to enough secondhand smoke to increase measurably his risk of lung cancer. The railroad further contended that secondhand smoke exposures outside of work or other unknown causes accounted for Mr. Thaxton's lung cancer, and that it was "scientifically impossible" to conclude that his work-related secondhand smoke exposure caused his lung cancer.

The plaintiff is represented by Attorney John Moss and his co-counsel, Charles Mathis. The trial, which was scheduled to begin on Tuesday, January 24, 2006 - almost a full decade after the lawsuit was filed - was settled on Thursday night, January 19, 2006.

The case had been scheduled for trial at the Fulton County (Georgia) Courthouse, 185 Central Avenue in Atlanta. Presiding over this
state court action is the Honorable Penny Brown Reynolds.


Atty. Moss can be reached at 404-264-1292 or johnmoss@matthewssteellaw.com

Plaintiff's scientific expert on secondhand smoke, James Repace, MSc. can be reached at Repace Associates, Inc., Secondhand Smoke Consultants, 101 Felicia Lane, Bowie, MD 20720, and repace@comcast.net

For information on other secondhand smoke lawsuits around the country, contact Edward L. Sweda, Jr., Senior Attorney, Tobacco Control Resource Center, Northeastern University School of Law in Boston, at 617-373-8462 or ed@tplp.org


EXCERPTS from Kansas City Daily Record, December 21, 2005, headlined, Flight attendants' secondhand smoke claims ready for takeoff, writer, Nora Lockwood Tooher

In an order issued Nov. 28 [2005], Florida's highest court declined to review a Florida Court of Appeal decision upholding a $500,000 award to Lynn French. A former TWA flight attendant, French blamed her chronic sinusitis on secondhand smoke she inhaled in airplane cabins until smoking was banned on U.S. commercial airliners in 1990.

Rhonda Weinstein, French's attorney, said the decision marks the first time that the tobacco companies will be forced to pay damages to a flight attendant injured by secondhand smoke. The defendants had argued that each claim needed to be tried separately to determine liability. But the Florida Court of Appeal held that pursuant to a 1997 settlement with the tobacco companies, the only issues to be determined were whether each attendant suffered from one of the diseases found to be linked to secondhand smoke, and what the damages were. The Florida Supreme Court's decision not to review that holding "leaves the decision in full force and effect," Weinstein said.

In 1991, a class-action suit was filed on behalf of about 60,000 flight attendants who had been exposed to secondhand smoke. A 1997 court-approved settlement provided that the tobacco companies would pay $300 million to fund a cancer research foundation and $49 million in attorney fees. (Broin v. Philip Morris, 641 So.2d 888). The plaintiffs received nothing, but were given the right to sue individually. As part of the settlement, the tobacco defendants also agreed to a shift in the burden of proof for purposes of general causation.

Specifically, the Florida Court of Appeal noted: "[A]nother substantial benefit is the burden-shifting provision. This provision establishes a 'generic causation' presumption in favor of the flight attendants." Following the settlement, about 3,000 flight attendants brought individual suits against the tobacco defendants for illnesses caused by secondhand smoke. While plaintiffs' lawyers argued that the issue of liability had been resolved in the Broin settlement, the tobacco companies claimed that although they had assumed the burden of proof on the issue of general causation, each plaintiff was required to prove the individual elements of their claims.

In December 2004, the Florida Court of Appeal upheld a jury verdict in the French case, finding that the settlement agreement made it clear that there was no need to prove liability for each claim. "The defendants' position that each individual plaintiff is required to prove and reprove breach of duty and all other elements of their tort claims (except for general causation) defies logic. The assumption that plaintiffs would agree to end six years of litigation, including a trial that had lasted nearly four months, in favor of relitigating each common liability issue a thousand times over is an absurd result that we will not adopt. [T]he intent of the parties to the settlement agreement was to focus on the individual retained claims and determine whether a 'plaintiff's disease was actually caused by exposure to secondhand smoke, and if so, what damages were sustained,'" the court said. (Philip Morris v. French, 897 So.2d 480 (2004).)

In her jury trial, French was initially awarded $5.5 million, but trial judge Frederika G. Smith reduced the award to $500,000, reasoning that the plaintiff appeared to be in no physical distress.

Weinstein, whose Miami firm is representing about 500 flight attendants, said the Florida Supreme Court ruling sets the stage for up to 3,000 "mini-trials" to determine whether individual flight attendants are entitled to damages. In her view, the court's order will have a significant practical impact. "For over two years since the initial verdict in the French case, most judges in Miami-Dade circuit court had been reluctant to schedule the flight attendant cases for trials until resolution of the appeals process. Now trial judges have the guidance from the appellate courts that they need with respect to what issues should and should not go to the jury for consideration, and the plaintiff firms handling these cases soon expect to begin the process of noticing cases for trial," Weinstein said. In the remaining flight attendant trials, the plaintiffs will simply have to show they have one of the enumerated diseases and that it was a result of their exposure to tobacco smoke on airplanes, according to Weinstein.

"It really means a logjam has been cleared," said Edward Sweda, senior staff attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston. "Many of these cases were on hold," he said, "waiting for a definitive ruling one way or the other on the question of whether the 1997 settlement had a provision, as the plaintiffs were claiming, that the companies agreed to the fact that secondhand smoke causes a variety of diseases."

So far, only seven flight attendant claims have gone to trial, with defense verdicts in five cases and a mistrial declared in one. French's case was the only plaintiff's victory. In the trials that resulted in defense verdicts, tobacco industry lawyers convinced juries that factors other than secondhand smoke could have caused the individual flight attendants' diseases, including emphysema, asthma and lung cancer. Weinstein expects trials on the remaining claims to start sometime next year [2006].

VICTORY:  2nd hand smoking case, Florida, U.S.A.   --   June 18, 2002 -- jury awards five times what plaintiff requested in compensatory damages.

EXCERPTS from Bloomberg, June 18, 2002, headlined:
Tobacco Companies Must Pay Flight Attendant $5.5 Million, by William McQuillen

Philip Morris Cos. and other U.S. tobacco companies were told to pay $5.5 million to a flight attendant who claims second-hand smoke on airlines caused her breathing problems.

A state court jury in Miami deliberated an hour and a half before awarding the damages to Lynn French, a non-smoker. The case marks the first time a U.S. tobacco company has been ordered to pay damages for second-hand smoke.  French's lawyers had requested about $1.06 million in compensatory damages, and under a previous settlement she wasn't seeking punitive damages.

The cigarette makers, which face similar claims by thousands of flight attendants, claimed French's illness isn't a result of second-hand smoke.

"Hopefully this will help the rest of the plaintiffs who file cases,'' French said.  "Maybe they won't have to go through what I went through.''

Philip Morris said in a statement that it will challenge the verdict.

The defendants also included R.J. Reynolds Tobacco Holdings Inc., British American Tobacco Plc's Brown & Williamson Tobacco Corp., and Loews Corp.'s Lorillard Tobacco Co.

French's suit followed a 1997 settlement of class-action claims by flight attendants.  That $350 million settlement allowed individual suits to proceed though it barred punitive damages.

In today's verdict, the four men and two women on the jury awarded French $2 million for past suffering and $3.5 million for future suffering.

The verdict was announced after the market closed.

While flight attendants didn't receive money from the 1997 settlement, which financed health research and paid attorneys' fees, they gained legal leverage for their own suits.  The settlement puts the burden of proving that second-hand smoke doesn't cause disease on the tobacco industry.  About 3,200 flight attendants across the U.S. have filed individual claims.

French, 56, joined TWA in 1976.  In 1988, the U.S. government banned smoking on all flights less than two hours. Two years later, smoking was prohibited on all flights less than six hours. TWA filed for Chapter 11 bankruptcy in 2001 and was acquired by AMR Corp., the parent of American Airlines.

"This is terrific, not just for the plaintiff and her family,'' said Edward Sweda, a senior attorney with the Tobacco Products Liability Project at Northeastern University.  "It sends an educational message to the public about how hazardous second- hand smoking is.''

In the first individual suit to go to trial, a Miami jury in April 2001 rejected a claim by former TWA flight attendant Marie Fontana.  She sought more than $1 million in reimbursement for medical costs and lost earnings plus payments for pain and suffering.

A second case resulted in a mistrial.

Woman Loses Good Health, But Wins Lawsuit in Sydney, Australia - ETS

The Sydney Morning Herald, May 2, 2001
Australian Broadcasting Corporation, May 2, 2001

EXCERPTS from The Sydney Morning Herald, [smh.com] May 2, 2001, writer not identified, headlined: Woman wins passive smoking test case

                 A woman contracted throat cancer because of
                 years of passive smoking she endured during her
                 employment as a barmaid in NSW, a court
                 decided today.

                 Marlene Sharp, 63, sued the Port Kembla RSL
                 for negligence claiming her cancer was caused by
                 years of breathing other people's smoke while
                 working at the club between 1984 and 1985.

                 The four-man Supreme Court jury took about four
                 hours to decide the club had been negligent and
                 awarded her more than $450,000 in damages.

                 In legal argument following the jury's verdict, Mrs
                 Sharp's barrister, Mr Peter Semmler, QC, said the
                 result was a world first.

                 "This is the first time in the world that anyone has
                 been awarded damages for cancer caused by
                 environmental tobacco smoke," he said.

                 Mrs Sharp, a non-smoker, told the jury that about
                 80 per cent of the patrons at the Port Kembla
                 RSL Club, in Wollongong, were smokers. She
                 worked at the club from 1984 to 1995.

                 "The smoke seemed to rise and come straight at
                 me. There were people sitting, smoking, drinking,
                 exhaling. Cigarettes in the ashtrays burning away.
                 It wasn't very nice," Mrs Sharp said.

                 Mrs Sharp first noticed a lump in her neck in May
                 1995. It was diagnosed as malignant cancer of the
                 larynx and she underwent surgery and

                 She is in remission but doctors have told Mrs
                 Sharp there is a high risk of her developing a
                 secondary cancer, probably in the lungs.

                 Because her epiglottis was removed she had
                 problems swallowing food, could not drink hot
                 liquids, coughed uncontrollably at times, and woke
                 up with a choking sensation during the night, her
                 lawyer, Mr Semmler, said.

                 Mrs Sharp said she "hates the smell of smoke" but
                 was often surrounded by it. "She has never
                 smoked voluntarily but she was an involuntary
                 smoker of large quantities of other people's
                 cigarette smoke," Mr Semmler said.

                 When she wasn't working behind the bar, she was
                 emptying ashtrays and picking up glasses.

                 "She was exposed to large amounts of smoke,
                 many of the patrons would sit on stools, a lot of
                 their smoke was exhaled straight into her face as
                 she walked back and forth along the bar serving
                 drinks," he said.

EXCERPTS from the Australian Broadcasting Corporation, May 2, 2001, reporters not identified, headlined, Passive smoking cancer win "a world first"
Marlene Sharp developed cancer of the larynx after working behind the bar of the Port Kembla RSL for 11 years.

 A former barmaid has won what's believed to be the world's first damages case for cancer caused by passive smoking. Geoff Sims reports.

The four-man jury took just under four hours to reach its verdict, after a trial that had taken two months.

Mrs Sharp had told the court smoke at the club would rise up into the faces of barstaff for hours on end during her shifts at the club.

She was forced to quit work in 1995 after developing cancer of the larynx, a disease the court heard would be extremely rare if it were not for tobacco smoke.

Mrs Sharp's counsel, Peter Semmler QC told the Supreme Court after the verdict was delivered it is the first time in the world there has been a successful claim of damages for cancer from passive smoking.

Mrs Sharp has been awarded a total of $466,000 and attacked the WorkCover Authority for not agreeing to settle her case.

Mrs Sharp says the club's insurers, WorkCover, could have settled for less.

"I'm so very happy, I'm so happy with the jury but I'm very very
disappointed with the WorkCover Authority - they could have settled three years ago in 1998," she said.

"I believe they've spent over $1 million on this case and they could have settled back in 1998 for far less than what I've received."

Chairman of Action on Smoking and Health Professor Simon Chapman says the ruling is enormously significant and strengthens the call for smoking to be banned in bars and clubs.

"It's difficult to conceive of any worker in any situation who would be more exposed to passive smoking than someone who works in a bar," he said.

"This will send ripples legally all around the world and I'd be very
surprised to see smoking allowed to continue in bars and clubs very much further into the future."

The manager of the Port Kembla RSL Club says he cannot ban smoking in his club, while other clubs nearby still allow patrons to do so.

This is despite the Supreme Court awarding former employee Marlene Sharp $450,000 for cancer she contracted from passive smoking while working in the bar.

Club manager Darcy Martin says it is up to the New South Wales Government and other authorities to ban smoking, not him.

"How can I walk out here and tell people they can't smoke in bars when it's not unlawful?" he said.

"Put it this way mate, it's up to the combined clubs of New South Wales to make a law for one and for all."

[Virginia GASP]  Updated 23 January 2006