March 30 2005 - U.S. court seeks state tobacco law clarification; Result could affect verdicts in lawsuits by addicted smokers

A federal appeals court has asked the California Supreme Court whether state law would allow a lawsuit to be filed by a smoker for tobacco-related illness years after becoming addicted to cigarettes.   The Ninth Circuit Court of Appeals barred such suits in 2002. The court said that a smoker who was aware of being addicted would know that cigarettes were harmful and would have to sue within a year of becoming addicted or violate the state's statute of limitations. But California appellate courts have allowed suits by ex-smokers who were newly diagnosed with cancer and other illnesses, claimed they were lured by ads and promotions to minors and believed companies' statements that cigarettes were safe. The disagreement means that the fate of a lawsuit often depends on whether it is heard in state or federal court. Because federal courts have jurisdiction over suits between parties from different states for more than $75,000, tobacco companies based outside California have for the most part gotten suits transferred to federal court, where they have been dismissed. Two cases that remained in state court led to large damage awards. Patricia Henley, who was diagnosed with lung cancer 35 years after she started smoking at age 15, won $10.5 million from Philip Morris, an award that was upheld by California courts and was left intact by the U.S. Supreme Court earlier this month. A San Francisco jury awarded $21.7 million to Leslie Whiteley, who was diagnosed with lung cancer 16 years after she started smoking and died two years later. The verdict was overturned by a state appellate court last year for reasons unrelated to the issue in Tuesday's request to the state Supreme Court. That suit may be retried. The state Supreme Court, the highest authority on California law, has not ruled on whether a smoker's awareness of addiction precludes a later lawsuit for illness. Grisham, of Los Angeles, had started smoking in the early 1960s, at age 13, attracted by tobacco company representatives who handed out cigarettes near her junior high school campus. After trying to kick the habit in 1993, she was diagnosed several years ago with emphysema, a disfiguring gum disease and other ailments. The other plaintiff, Maria Cannata, who also started smoking as a minor in the 1960s, has terminal lung disease, the court said. Both women filed suit after the Legislature repealed tobacco companies' decade-long immunity from smokers' lawsuits in 1998. Both suits were dismissed by a federal judge in Los Angeles, who said the women's awareness of their addictions decades ago meant they could no longer sue for their illnesses, under the Ninth Circuit's 2002 ruling. The women's appeals of the dismissals led to Tuesday's order referring the issue to the state Supreme Court.

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