Tobacco Companies on Trial in $650M Suit

A Jones County jury will be the second in the nation to decide whether second-hand tobacco smoke can cause lung cancer and whether the tobacco industry should be held liable.

 

In what is expected to be a battle of expert witnesses, jurors should begin hearing testimony Wednesday in the $650 million lawsuit filed by the family of Laurel barber Burl Butler.

 

The tobacco industry in October 1997 settled an environmental tobacco smoke suit filed in Florida by airline flight attendants.  The industry won the only environmental tobacco smoke lawsuit ever to go to jury.  In March 1998, jurors in Muncie, Ind., rejected a claim by the husband of Mildred Wiley.  The 56-year old former Veterans Affairs hospital nurse died of cancer at age 56.

 

The Butler case is being closely watched nationally.

 

Richard Daynard of Boston, one of the nation's foremost anti-tobacco activists, said in a telephone interview, "It could open another bleeding wound in another area, holding them responsible for the hundreds of thousands of deaths from environmental tobacco smoke."

 

"They have made this case into a huge make-or-break battle," said Daynard, head of the Tobacco Products Liability Project.  Daynard is a professor of law at Northeastern University School of Law specializing in toxic torts.

 

Brown & Williamson Tobacco Corp. attorney Andrew McGaan of Chicago said, "We are in the middle of an ongoing litigation assault against cigarettes, and this is part of the battle."

 

Brown & Williamson and other major tobacco companies maintain there's no proof breathing someone else's cigarette smoke can be fatal.

 

"Science does not establish that exposure to environmental tobacco smoke by nonsmokers is a risk factor for disease," McGaan said Friday during a break in pretrial hearings in the case.

 

Butler, who did not smoke, died on May 7, 1994, at the age of 60 after a two-year battle with cancer.

 

What kind of cancer killed him is expected to be the subject of days of testimony.

 

Seattle pathologist Samuel Hammar, who performed an autopsy on Butler, is expected to testify he died from lung cancer.

 

Plaintiff lawyer T.Roe Frazer on Friday said that the Hattiesburg physician who treated Butler for lung cancer listed "metastatic lung cancer," cancer that has spread, on Butler's death certificate as cause of death.

 

Dr. Ed Thompson, head of the Mississippi Department of Health, is among the half-dozen physicians that records indicate will testify that Butler was killed by primary lung cancer caused by exposure to second-hand cigarette smoke.

 

Thompson was a strong supporter of Attorney General Mike Moore's lawsuit against the tobacco industry.  As a state health officer, he has pushed anti-smoking programs.

 

But the state's former medical exmainer, pathologist Thomas Bennett, is among four physician defense witnesses expected to challenge the cause of death and testify that Butler had multiple cancers.  In an affadivit filed April 28, Bennett said, "It is my opinion, to a reasonable degree of medical certainty, that Burl Butler had multiple cancers at the time of his death, including cancers in the lungs, kidney, thyroid, prostate pancreas and spine."

 

"It is also my opinion, to a reasonable degree of medical certainty, that Mr.Butler's cancers in the thyroid, prostate and pancreas are separate and distinctly primary cancers.  The cancers in the lungs and kidneys may be separate and distinct primaries or may be metastases from another organ," Bennett wrote.

 

Bennett gave similar testimony in the Wiley trial last year, suggesting that Wiley's cancer began in the pancreas and that her treating physicians missed it until it spread to her lungs.

 

Bennett left Mississippi in 1986 after a two-year stay as medical examiner.  He was medical examiner in Iowa 13 years, including before and after his Mississippi stint.

 

Plaintiff lawyer Cynthia Langston of Jackson on Friday said Hammar did a second round of testing that ruled out the possibility of pancreatic cancer.

 

She said the tests "will show beyond any doubt that this was not a pancreatic cancer."

 

But Circuit Judge Robert Evans granted a defense motion to exclude the evidence of Hammar's subsequent testing because it was done after an evidentiary deadline.  Evans said he might reconsider and allow the testimonial as rebuttal.

 

Langston said Hammar was delayed because he could not obtain antibodies needed to perform the test.

 

Although the physicians testifying as defense witnesses are not expected to be unanimous in all their opinions, they are expected to testify that Butler's illness was not caused by environmental tobacco smoke, according to the affadavits submitted to the court.

 

Tobacco industry lawyers also are expected to offer testimony that a family history of cancer could have contributed to Butler's death.

 

They are expected to question whether exposure to asbestos and other health hazards had an effect.

 

Meridian oncologist John C. Clay in an affadivit said Butler's father, two sisters and a brother all had cancer.

 

Attorney Jeffrey Furr of Winston-Salem, N.C., representing R.J. Reynolds Tobacco Co., said at a Friday hearing that the autopsy also showed Butler had five to six times the expected background level of asbestos exposure.

 

Furr said two of the plaintiff's own medical experts admitted in depositions that cosmetic talc like that used in Butler's barber shop contains asbestos.

 

Butler's widow, Ava Dean Butler, added talc manufacturers as defendants in the lawsuit in February 1996.

 

Jackson lawyer Michael Ulmer, who represents RJR, accused plaintiff lawyers of suing talc manufacturers then acquiescing to their dismissal from the suit in an attempt to prevent the defense from raising other causes for the cancer.

 

Frazer, of Jackson, said the defense has no evidence to support other causes of illness and it's unfair to allow the defense to inject alternative theories. 

 

"We are all going to perish tomorrow in a meteorite - you can't rule that out either, " Frazer said incredulously.

 

Frazer said Butler "used chewing tobacco from time to time" and that his hobby was woodworking.

 

Evans rejected a plaintiff's request to bar references to exposure to talc, asbestos, hair spray, woodworking materials, chewing tobacco and bird droppings and references to Butler's diet.

 

Evans said the defense lawyers "are entitled to cross-examine plaintiff's experts about other causes of cancer in nonsmokers."

 

Butler gave his attorneys the names of witnesses he wanted to call before he died, Langston said.  Among those were a next-door neighbor, friends, other barbers and customers of the barber shop, she said.

 

Butler's widow and his children are expected to testify.

 

His daughter, Gloria Butler Baldwin, who is a medical writer for The Clarion-Ledger, is among the witnesses.  She will not be involved in the newspaper's coverage of the trial.

 

Jurors also may see a videotaped deposition Butler gave before he died.

 

After a 1993 court hearing in Jackson a year before he died, Butler said, "I want to be live to tell my story to the jury.  It looks as though if they can delay it long enough, I won't be around."

 

Friday's hearing was on the five-year anniversary of his death.