Plaintiffs
Norma R. Broin, Major Mark L. Broin, and 60,000 airline flight attendants
Defendant
Philip Morris Inc. and 14 other United States tobacco companies
Plaintiffs' Claim
That the United States tobacco companies through conspiracy and fraud withheld from the pubic critical information on the health hazards of secondhand cigarette smoke.
Chief Lawyers for Plaintiffs
Stanley and Susan Rosenblatt
Chief Defense Lawyers
David L. Ross, Norman A. Coll, Robert L. Burlington, Edward A. Moss, Daniel Donahue
Judge
Robert P. Kaye
Place
Miami, Florida
Date of Decision
10 October 1997
Decision
The tobacco companies agreed to settle the injury claim before going to jury,funding a $300 million research foundation and paying $49 million in attorney fees and court costs, but not admitting to wrongdoing.
Significance
The case was the first against the tobacco industry for damages claimed fromsecondhand smoke. The trial served to greatly increase public awareness of the potentially serious health effects of secondhand smoke. The trial also provided surprising testimony by one tobacco company for the first time publiclyadmitting the health hazards of smoking tobacco. Efforts were increased in limiting exposure of the public, and particularly children, to secondhand smokeexposure.
Tobacco is a plant long used by humans in North America. American Indians smoked tobacco, a plant native to the New World, well before contact with European cultures. Commercial production of tobacco, which contains small amounts of the stimulant substance nicotine, began in the American colony of Virginiain 1612 where it quickly became an important cash crop. Cigarettes became popular in the 1880s as production technologies came of age. Early during European use of tobacco, health controversies grew. In the sixteenth century some physicians claimed tobacco use should be restricted for medicinal purposes only. The Puritans of New England banned its use. Finally, in 1964 the U.S. Surgeon General released the first official scientific findings highlighting thehealth hazards of smoking. The tobacco industry was suddenly on the defensive. In 1966, tobacco companies had to place warnings on cigarette packages. In1971, advertising on radio and television was banned. By the 1980s, concernsover the breathing of the cigarette smoke of others, secondhand smoke, greatly increased. Smoking began to be prohibited in various public places including United States commercial airline flights in 1988.
Secondhand smoke is a mixture of smoke given off by the burning end of a cigarette, pipe, or cigar, and smoke exhaled by smokers. This mixture contains more than 4,000 substances, over 40 of which are known to cause cancer in humans or animals. Exposure to secondhand smoke, also referred to as environmentaltobacco smoke (ETS), constituted involuntary smoking. The Environmental Protection Agency (EPA) in a 1993 report estimated 3,000 lung cancer deaths a year due to smoke exposure in American nonsmokers. According to the report, ETSexposure increased the risk of lower respiratory tract infections, includingbronchitis and pneumonia. The EPA estimated ETS exposure affected between 150,000 and 300,000 infants less than 18 months of age resulting in hospitalization of between 7,500 and 15,000 infants.
Involuntary Smoking in Airline Cabins
Norma R. Broin was an airline stewardess for American Airlines since 1976. She did not smoke cigarettes, but at age 32 contracted lung cancer. Her story,unfortunately, was not unique among airline attendants in general, with manyexperiencing various forms of cancer and serious respiratory illnesses in theprime of life. In October of 1991, Norma Broin and her husband, Major Mark L. Broin of the U.S. Marine Corps, and over 25 other flight attendants and family members, filed a federal class action lawsuit. The suit was filed in theEleventh Judicial Circuit in Dade County, Florida, against Philip Morris, several other cigarette makers, and two tobacco trade groups. All were involvedin the manufacturing, distributing, and selling of cigarettes throughout theUnited States. The complaint was initially dismissed in May of 1992 but was reinstated after appeal by the attendants.
In May of 1994, Broin filed another revised complaint charging that exposureto secondhand tobacco smoke in airline cabins caused flight attendants to suffer from various diseases and health disorders. Broin contended the companiesmade dangerous and poisonous products that seriously harmed innocent bystanders. In essence, the companies, Broin charged, were guilty of conspiracy andfraud in withholding and suppressing important scientific information from the public. For over 25 years important health information had been known to the companies, yet, according to Broin, they continued to market their dangerous products through numerous popular merchandising programs. The tobacco companies denied any wrongdoing, and asserted the lawsuit was inappropriate underFlorida civil law procedures.
However, in December of 1994 Judge Robert P. Kaye certified the case a classaction status. The class consisted of all nonsmoking flight attendants, approximately 60,000 individuals, currently or formerly employed by airline companies based in the United States who suffered from diseases and disorders attributed to their exposure to secondhand cigarette smoke in airline cabins. Health conditions listed in the claim included various cancers, including of thelung, larynx, oral cavity, esophagus, bladder, kidney, pancreas, stomach, cervix, and breast, in addition to various respiratory problems, pregnancy complications, infant mortality, and infertility. Major Broin claimed the loss ofcomfort and companionship of his wife.
The tobacco companies appealed the class action status but the Third DistrictCourt of Appeal affirmed the status in January of 1996. The companies then sought to block the suit by appeal to the Florida Supreme Court, but a reviewwas denied.
Judge Kaye split the trial into two stages. Stage I would concentrate on questions common to the airline employees such as the general connection betweensmoking and diseases experienced by nonsmokers and general conduct of the tobacco companies. Stage II would focus on individual attendants and their proofof injury. To ultimately receive damage awards, the airline attendants wouldhave to personally present specific evidence in the Miami court, then wait until all other attendants had presented their cases and final rulings were issued, and all appeals were completed.
Stage I proceedings began in June of 1997 with jury selection. The flight attendants then presented their arguments and evidence to the jury until late September. Testimony for the defendants included appearances by two former U.S.Surgeons General and top physicians, researchers, and aircraft designers. Testimony claimed cigarette smoke contained lead, formaldehyde, benzene, and numerous other known cancer-causing chemicals. The tobacco companies then begantheir response claiming the attendants suffered diseases no more frequentlythan the general public and the amount of secondhand smoke they inhaled was minor. The companies contended that flight attendants spent only around 12 hours a week closed in airline cabins. A surprising acknowledgment of the harm of cigarettes came during the trial when cigarette manufacturer Liggett admitted that smoking was addictive and causes lung cancer and many other diseases.Such admission was the first historically from a member of the tobacco industry. But, before completing their presentations a settlement was unexpectedlyreached with the attendants on 10 October 1997. Settlement had been reachedbefore any interim court decisions as a request by both sides had been made by Kaye. Kaye found the proposed settlement agreement fair and reasonable pending further discussions at a final settlement hearing.
A Landmark Settlement
Four of the tobacco companies, Philip Morris, R. J. Reynolds, Lorillard, andBrown & Williamson agreed to pay $300 million over three years to establish and fund a nonprofit research foundation. The foundation would support scientific research on the early detection and cure of diseases associated withcigarette smoking. Ultimately, the research was hoped to benefit flight attendants suffering such diseases. The foundation, free from all active tobacco company control, was to be managed and directed by a board of trustees partlycomposed of selected flight attendants. The four companies also agreed to support federal legislation prohibiting smoking on all nonstop regularly scheduled international flights originating or terminating in the United States. Thecompanies, asserting they merely wanted to avoid the expense of a long trial, denied any wrongdoing or violation of law.
As a key part of the settlement, individual flight attendants of the class action suit and their survivors retained the right to pursue separate lawsuitsfor damage awards from the four companies. The settlement agreement dismissedall other claims against all of the other tobacco companies involved in thecase, including Liggett, the Tobacco Institute, Inc., and the Council for Tobacco Research-U.S.A. The settlement agreement, of course, did not affect theattendants' rights to make claims against any other parties not a part of thecase.
An attendant could choose to bring a lawsuit in her home jurisdiction or theEleventh Judicial Circuit of Dade County, Florida. A concern of the companieswas how the court would apply the various laws of the 50 states to the individual attendants. The amount of recoverable damages for the individual attendants would vary from state to state. For example, in Florida damages were notsubject to dollar restrictions for physical injury in addition to less tangible damages including pain and suffering, disfigurement, loss of enjoyment oflife, and disability. Some states had limits for the intangible damages. Asa key part of the settlement, the companies waived all relevant statutes of limitations throughout the United States for any potential individual lawsuitsfiled by class attendants and their survivors for past injury, but the lawsuits had to be filed within a year after the settlement. The class included flight attendants employed back to the 1930s.
The tobacco companies also agreed to a significant shift in legal responsibility for the potential individual lawsuits. The companies assumed the burden of proof to demonstrate a lack of connection between secondhand smoke and thespecific cases of cancer and other chronic respiratory ailments. Normally such responsibility would be the attendant's for proving particular diseases ormedical conditions resulted from secondhand cigarette smoke in airline cabins. Numerous law firms offered their availability to represent the attendants with continuing technical assistance from the Broin lawyers. Also, anyevidence presented to the jury in Broin would be treated as live witness testimony.
Lastly, the four tobacco companies also agreed to reimburse the attendants for all their legal and other expenses as part of Broin which involved over six years of activity. The amount was over $46 million.
Impact
Under the settlement, individual attendants received no monetary compensation. But the tobacco industry pledged to establish the Broin Research Foundationwith a goal of seeking cures for diseases attributed to tobacco smoke and todevelop methods of early detection. A verdict against the tobacco industry could have been used as evidence at future trials. Instead, the companies chose a settlement, which rarely includes admissions of wrongdoing.
Broin was the first case in which nonsmokers claimed injury against the tobacco industry and was the first tobacco class action case to reach trial. A common defense argument by tobacco companies in death and injury claims brought by smokers was that the individuals freely chose to use the product and be exposed to the smoke. However, Broin solely involved nonsmokers exposed to secondhand smoke in the work place. The nation's leading cigarettemakers for the first time lacked their usual key defense. Prior to Broin, the tobacco industry had never paid damages in a product-liability case.
Potential settlements between industry and states dominated the news in 1997and 1998. An initial effort at a settlement for industry to compensate statesfor medical costs associated with smoking fell through when Congress refusedto approve the deal which called for federal legislation. Later state settlement proposals avoided involving Congress and potential legislation that would begin regulating nicotine as a drug. Finally, the states and the tobacco industry reached a settlement in November of 1998. Even in light of this, private parties continued to take the tobacco companies to task for their roles inthe failing health of smoking Americans. In February of 1999, a San Francisco jury awarded $50 million in punitive damages to a former Marlboro smoker who blamed Philip Morris for the lack of serious warning both when she startedsmoking at 15 and all throughout her "smoking career." While many of these cases have been appealed and later lost or settled out of court, the Washington Post quoted legal analysts who predicted the California appeals courts would be "reluctant to overrule" the decision.
Despite a heightened public awareness of health hazards resulting from tobacco use and increased initiatives to eliminate cigarette smoking from public places, a 1998 study by the Harvard School of Public Health indicated smoking among college students increased by 28 percent between 1993 and 1997. In reaction, President Bill Clinton in his 1999 State of the Union address vowed to fight the industry through federal lawsuits.
Related Cases
Lawsuit Awards
There are numerous varieties of injury lawsuits, some of which may be class-action suits, others of which are clearly individual in nature. Among these varieties are suits resulting from automobile accidents, fraud, libel, medicalmalpractice, personal injury, product liability, professional malpractice, and property damage. In 1992, the type of lawsuit for which juries awarded thelowest median monetary award was for automobile accidents, in which the median award was about $20,000. The highest-paying were product liability suits, for which the median award was more than $200,000.
After having one settlement proposal between the states and tobacco industryfall through in 1997, a $206 billion settlement was reached between the industry and 46 states in November of 1998. Purpose of the settlement was to compensate states for the medical expenses associated with treating smoking-related diseases. Four states had previously settled individually. Tobacco industryopponents criticized the settlement as soft on industry, since most of the monies would come from increased costs of cigarettes to the public. As a confirmation of those concerns, tobacco companies stock soared in value upon announcement of the settlement. Payments would be made by the Big Four of the tobacco industry: Philip Morris, R. J. Reynolds, Lorillard, and Brown & Williamson. The industry agreed to greatly curtail marketing efforts in return forimmunity from all state and local government class action lawsuits. The settlement also contained provisions for financing a research foundation focusedon youth smoking issues.
Sources
Fast, Julius, and Timothy Fast. The Legal Atlas of the United States.New York: Facts on File, 1997.
"The Ifs and Buts of the Tobacco Settlement." The New York Times, November 29, 1998.
Norma R. Broin, Major Mark L. Broin, and 60,000 airline flight attendants
Defendant
Philip Morris Inc. and 14 other United States tobacco companies
Plaintiffs' Claim
That the United States tobacco companies through conspiracy and fraud withheld from the pubic critical information on the health hazards of secondhand cigarette smoke.
Chief Lawyers for Plaintiffs
Stanley and Susan Rosenblatt
Chief Defense Lawyers
David L. Ross, Norman A. Coll, Robert L. Burlington, Edward A. Moss, Daniel Donahue
Judge
Robert P. Kaye
Place
Miami, Florida
Date of Decision
10 October 1997
Decision
The tobacco companies agreed to settle the injury claim before going to jury,funding a $300 million research foundation and paying $49 million in attorney fees and court costs, but not admitting to wrongdoing.
Significance
The case was the first against the tobacco industry for damages claimed fromsecondhand smoke. The trial served to greatly increase public awareness of the potentially serious health effects of secondhand smoke. The trial also provided surprising testimony by one tobacco company for the first time publiclyadmitting the health hazards of smoking tobacco. Efforts were increased in limiting exposure of the public, and particularly children, to secondhand smokeexposure.
Tobacco is a plant long used by humans in North America. American Indians smoked tobacco, a plant native to the New World, well before contact with European cultures. Commercial production of tobacco, which contains small amounts of the stimulant substance nicotine, began in the American colony of Virginiain 1612 where it quickly became an important cash crop. Cigarettes became popular in the 1880s as production technologies came of age. Early during European use of tobacco, health controversies grew. In the sixteenth century some physicians claimed tobacco use should be restricted for medicinal purposes only. The Puritans of New England banned its use. Finally, in 1964 the U.S. Surgeon General released the first official scientific findings highlighting thehealth hazards of smoking. The tobacco industry was suddenly on the defensive. In 1966, tobacco companies had to place warnings on cigarette packages. In1971, advertising on radio and television was banned. By the 1980s, concernsover the breathing of the cigarette smoke of others, secondhand smoke, greatly increased. Smoking began to be prohibited in various public places including United States commercial airline flights in 1988.
Secondhand smoke is a mixture of smoke given off by the burning end of a cigarette, pipe, or cigar, and smoke exhaled by smokers. This mixture contains more than 4,000 substances, over 40 of which are known to cause cancer in humans or animals. Exposure to secondhand smoke, also referred to as environmentaltobacco smoke (ETS), constituted involuntary smoking. The Environmental Protection Agency (EPA) in a 1993 report estimated 3,000 lung cancer deaths a year due to smoke exposure in American nonsmokers. According to the report, ETSexposure increased the risk of lower respiratory tract infections, includingbronchitis and pneumonia. The EPA estimated ETS exposure affected between 150,000 and 300,000 infants less than 18 months of age resulting in hospitalization of between 7,500 and 15,000 infants.
Involuntary Smoking in Airline Cabins
Norma R. Broin was an airline stewardess for American Airlines since 1976. She did not smoke cigarettes, but at age 32 contracted lung cancer. Her story,unfortunately, was not unique among airline attendants in general, with manyexperiencing various forms of cancer and serious respiratory illnesses in theprime of life. In October of 1991, Norma Broin and her husband, Major Mark L. Broin of the U.S. Marine Corps, and over 25 other flight attendants and family members, filed a federal class action lawsuit. The suit was filed in theEleventh Judicial Circuit in Dade County, Florida, against Philip Morris, several other cigarette makers, and two tobacco trade groups. All were involvedin the manufacturing, distributing, and selling of cigarettes throughout theUnited States. The complaint was initially dismissed in May of 1992 but was reinstated after appeal by the attendants.
In May of 1994, Broin filed another revised complaint charging that exposureto secondhand tobacco smoke in airline cabins caused flight attendants to suffer from various diseases and health disorders. Broin contended the companiesmade dangerous and poisonous products that seriously harmed innocent bystanders. In essence, the companies, Broin charged, were guilty of conspiracy andfraud in withholding and suppressing important scientific information from the public. For over 25 years important health information had been known to the companies, yet, according to Broin, they continued to market their dangerous products through numerous popular merchandising programs. The tobacco companies denied any wrongdoing, and asserted the lawsuit was inappropriate underFlorida civil law procedures.
However, in December of 1994 Judge Robert P. Kaye certified the case a classaction status. The class consisted of all nonsmoking flight attendants, approximately 60,000 individuals, currently or formerly employed by airline companies based in the United States who suffered from diseases and disorders attributed to their exposure to secondhand cigarette smoke in airline cabins. Health conditions listed in the claim included various cancers, including of thelung, larynx, oral cavity, esophagus, bladder, kidney, pancreas, stomach, cervix, and breast, in addition to various respiratory problems, pregnancy complications, infant mortality, and infertility. Major Broin claimed the loss ofcomfort and companionship of his wife.
The tobacco companies appealed the class action status but the Third DistrictCourt of Appeal affirmed the status in January of 1996. The companies then sought to block the suit by appeal to the Florida Supreme Court, but a reviewwas denied.
Judge Kaye split the trial into two stages. Stage I would concentrate on questions common to the airline employees such as the general connection betweensmoking and diseases experienced by nonsmokers and general conduct of the tobacco companies. Stage II would focus on individual attendants and their proofof injury. To ultimately receive damage awards, the airline attendants wouldhave to personally present specific evidence in the Miami court, then wait until all other attendants had presented their cases and final rulings were issued, and all appeals were completed.
Stage I proceedings began in June of 1997 with jury selection. The flight attendants then presented their arguments and evidence to the jury until late September. Testimony for the defendants included appearances by two former U.S.Surgeons General and top physicians, researchers, and aircraft designers. Testimony claimed cigarette smoke contained lead, formaldehyde, benzene, and numerous other known cancer-causing chemicals. The tobacco companies then begantheir response claiming the attendants suffered diseases no more frequentlythan the general public and the amount of secondhand smoke they inhaled was minor. The companies contended that flight attendants spent only around 12 hours a week closed in airline cabins. A surprising acknowledgment of the harm of cigarettes came during the trial when cigarette manufacturer Liggett admitted that smoking was addictive and causes lung cancer and many other diseases.Such admission was the first historically from a member of the tobacco industry. But, before completing their presentations a settlement was unexpectedlyreached with the attendants on 10 October 1997. Settlement had been reachedbefore any interim court decisions as a request by both sides had been made by Kaye. Kaye found the proposed settlement agreement fair and reasonable pending further discussions at a final settlement hearing.
A Landmark Settlement
Four of the tobacco companies, Philip Morris, R. J. Reynolds, Lorillard, andBrown & Williamson agreed to pay $300 million over three years to establish and fund a nonprofit research foundation. The foundation would support scientific research on the early detection and cure of diseases associated withcigarette smoking. Ultimately, the research was hoped to benefit flight attendants suffering such diseases. The foundation, free from all active tobacco company control, was to be managed and directed by a board of trustees partlycomposed of selected flight attendants. The four companies also agreed to support federal legislation prohibiting smoking on all nonstop regularly scheduled international flights originating or terminating in the United States. Thecompanies, asserting they merely wanted to avoid the expense of a long trial, denied any wrongdoing or violation of law.
As a key part of the settlement, individual flight attendants of the class action suit and their survivors retained the right to pursue separate lawsuitsfor damage awards from the four companies. The settlement agreement dismissedall other claims against all of the other tobacco companies involved in thecase, including Liggett, the Tobacco Institute, Inc., and the Council for Tobacco Research-U.S.A. The settlement agreement, of course, did not affect theattendants' rights to make claims against any other parties not a part of thecase.
An attendant could choose to bring a lawsuit in her home jurisdiction or theEleventh Judicial Circuit of Dade County, Florida. A concern of the companieswas how the court would apply the various laws of the 50 states to the individual attendants. The amount of recoverable damages for the individual attendants would vary from state to state. For example, in Florida damages were notsubject to dollar restrictions for physical injury in addition to less tangible damages including pain and suffering, disfigurement, loss of enjoyment oflife, and disability. Some states had limits for the intangible damages. Asa key part of the settlement, the companies waived all relevant statutes of limitations throughout the United States for any potential individual lawsuitsfiled by class attendants and their survivors for past injury, but the lawsuits had to be filed within a year after the settlement. The class included flight attendants employed back to the 1930s.
The tobacco companies also agreed to a significant shift in legal responsibility for the potential individual lawsuits. The companies assumed the burden of proof to demonstrate a lack of connection between secondhand smoke and thespecific cases of cancer and other chronic respiratory ailments. Normally such responsibility would be the attendant's for proving particular diseases ormedical conditions resulted from secondhand cigarette smoke in airline cabins. Numerous law firms offered their availability to represent the attendants with continuing technical assistance from the Broin lawyers. Also, anyevidence presented to the jury in Broin would be treated as live witness testimony.
Lastly, the four tobacco companies also agreed to reimburse the attendants for all their legal and other expenses as part of Broin which involved over six years of activity. The amount was over $46 million.
Impact
Under the settlement, individual attendants received no monetary compensation. But the tobacco industry pledged to establish the Broin Research Foundationwith a goal of seeking cures for diseases attributed to tobacco smoke and todevelop methods of early detection. A verdict against the tobacco industry could have been used as evidence at future trials. Instead, the companies chose a settlement, which rarely includes admissions of wrongdoing.
Broin was the first case in which nonsmokers claimed injury against the tobacco industry and was the first tobacco class action case to reach trial. A common defense argument by tobacco companies in death and injury claims brought by smokers was that the individuals freely chose to use the product and be exposed to the smoke. However, Broin solely involved nonsmokers exposed to secondhand smoke in the work place. The nation's leading cigarettemakers for the first time lacked their usual key defense. Prior to Broin, the tobacco industry had never paid damages in a product-liability case.
Potential settlements between industry and states dominated the news in 1997and 1998. An initial effort at a settlement for industry to compensate statesfor medical costs associated with smoking fell through when Congress refusedto approve the deal which called for federal legislation. Later state settlement proposals avoided involving Congress and potential legislation that would begin regulating nicotine as a drug. Finally, the states and the tobacco industry reached a settlement in November of 1998. Even in light of this, private parties continued to take the tobacco companies to task for their roles inthe failing health of smoking Americans. In February of 1999, a San Francisco jury awarded $50 million in punitive damages to a former Marlboro smoker who blamed Philip Morris for the lack of serious warning both when she startedsmoking at 15 and all throughout her "smoking career." While many of these cases have been appealed and later lost or settled out of court, the Washington Post quoted legal analysts who predicted the California appeals courts would be "reluctant to overrule" the decision.
Despite a heightened public awareness of health hazards resulting from tobacco use and increased initiatives to eliminate cigarette smoking from public places, a 1998 study by the Harvard School of Public Health indicated smoking among college students increased by 28 percent between 1993 and 1997. In reaction, President Bill Clinton in his 1999 State of the Union address vowed to fight the industry through federal lawsuits.
Related Cases
- State of Mississippi et al. v. American Tobacco Co. et al., CauseNo. 94-1429 (1991).
- State of Florida et al. v. American Tobacco Co. et al., Civil Action No. 95-1466 AH, 15th Judicial Cir. (1997).
Lawsuit Awards
There are numerous varieties of injury lawsuits, some of which may be class-action suits, others of which are clearly individual in nature. Among these varieties are suits resulting from automobile accidents, fraud, libel, medicalmalpractice, personal injury, product liability, professional malpractice, and property damage. In 1992, the type of lawsuit for which juries awarded thelowest median monetary award was for automobile accidents, in which the median award was about $20,000. The highest-paying were product liability suits, for which the median award was more than $200,000.
After having one settlement proposal between the states and tobacco industryfall through in 1997, a $206 billion settlement was reached between the industry and 46 states in November of 1998. Purpose of the settlement was to compensate states for the medical expenses associated with treating smoking-related diseases. Four states had previously settled individually. Tobacco industryopponents criticized the settlement as soft on industry, since most of the monies would come from increased costs of cigarettes to the public. As a confirmation of those concerns, tobacco companies stock soared in value upon announcement of the settlement. Payments would be made by the Big Four of the tobacco industry: Philip Morris, R. J. Reynolds, Lorillard, and Brown & Williamson. The industry agreed to greatly curtail marketing efforts in return forimmunity from all state and local government class action lawsuits. The settlement also contained provisions for financing a research foundation focusedon youth smoking issues.
Sources
Fast, Julius, and Timothy Fast. The Legal Atlas of the United States.New York: Facts on File, 1997.
"The Ifs and Buts of the Tobacco Settlement." The New York Times, November 29, 1998.
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