Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, March 25, 1991 TAG: 9103250298
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: EVENING
SOURCE: Associated Press
DATELINE: WASHINGTON LENGTH: Medium
The justices, for the first time granting review in a dispute over the dangers of smoking, said they will enter a long-running battle between the tobacco industry and the family of a New Jersey woman who died of lung cancer.
A ruling in the case of Rose Cipollone is expected in 1992. If the tobacco industry loses, it could face new lawsuits seeking untold millions of dollars.
The case acted on today began in 1983 when Antonio and Rose Cipollone of Little Ferry, N.J., sued three companies that manufactured the cigarettes she smoked.
A federal jury in 1988 ordered Liggett Group Inc. to pay Antonio Cipollone $400,000, but absolved Philip Morris Inc. and Lorillard Inc., owned by Loew's Theatres Inc. The award was the nation's first money damage judgment ever against the tobacco industry.
Marc Edell, a lawyer for Cipollone, said the case potentially has enormous importance for smokers and cigarette companies.
"It could change the whole way in which the tobacco industry deals with its consumers" if the high court rules for the Cipollone family, he said. "There is no incentive [now] for the companies to be more forthcoming" about the dangers of smoking.
The tobacco companies also said they welcomed the high court review.
"We're pleased that the court has accepted the case for review and will resolve the clear conflict in the lower courts," said David Kentoff, a lawyer for Philip Morris Inc.
Cipollone, who smoked more than a pack of cigarettes a day for over 40 years, died in 1984 at age 58.
Her husband died in 1990 at 66. The couple's son, Thomas, has carried on the legal fight.
The Philadelphia-based 3rd U.S. Circuit Court of Appeals last year overturned the $400,000 award and ordered a new trial that could lead to a bigger judgment against the tobacco industry.
The appeals court ruling potentially expanded the scope of the case against the industry.
But the cigarette companies prevailed in the lower courts on the issue before the Supreme Court today - whether the Federal Cigarette Labeling and Advertising Act shields the industry from post-1965 claims over the adequacy of health warnings.
The law, which took effect in 1966, requires all cigarette packages and cigarette advertising to contain a health warning.
As amended in 1970, it says: "Warning: the Surgeon General has determined that cigarette smoking is dangerous to your health."
The law was amended again in 1985 to authorize alternative warnings that contain more specific admonitions.
The 3rd Circuit court in 1986 said the federal law pre-empts state-law claims accusing the tobacco companies of misleading advertising or failure to warn smokers adequately.
The appeals court reaffirmed that ruling last year when it ordered a new trial in the Cipollone case.
The rulings, to a substantial degree, mean that claims of false advertising and related claims against the companies in the 3rd Circuit are limited to their conduct prior to 1966.
The 3rd Circuit court's ruling is binding in New Jersey, Pennsylvania and Delaware.
Cipollone, who started smoking at age 16, said she was influenced greatly over the years by cigarette advertising and industry health claims. She once said, "I was sure that if there was anything that dangerous, that the tobacco people wouldn't allow it and the government wouldn't let them" sell cigarettes.
The cigarette companies joined Thomas Cipollone in urging the Supreme Court to review the pre-emption issue.
The industry said the 3rd Circuit court ruling is "plainly correct" but that other courts have disagreed, and the justices should settle the conflict.
The case is Cipollone vs. Liggett, 90-1038.
In other action today, the court:
Left intact the federal rule banning airline captains over 60 from piloting large planes.
The justices, without comment, rejected a challenge to the Federal Aviation Administration's longstanding refusal to make any exceptions to its "age 60 rule."
Rejected an appeal that urged it to say medical patients must be given a share of the profits if their extracted blood or organs become a source of lucrative scientific research.
The court, without comment, turned away arguments by John Moore, a Seattle leukemia victim who sought to sue California education officials and researchers over their use of his removed spleen and rare blood.
Left intact a California anti-loitering law aimed at protecting children at their schools and other public places where they gather.
by CNB