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April 21, 1988

Antonio Cipollone, individually and as executor of the estate of Rose D. Cipollone, Plaintiff,
Liggett Group, Inc., Philip Morris Incorporated, and Lorillard, Inc., Defendants

The opinion of the court was delivered by: SAROKIN


 The court will make no attempt to outline all of the evidence which has been submitted in this case, but concludes for the purposes of the pending motions that the jury could reasonably infer and find as follows:

 Rose DeFrancesco Cipollone was born in 1925 and began to smoke at age 16, in the year 1942, while she was still in high school. She testified that she began to smoke because she saw people smoking in the movies, in advertisements, and looked upon it as something "cool, glamorous and grown-up" to do. She began smoking Chesterfields (manufactured by defendant Liggett Group, Inc.) primarily because of advertisements of "pretty girls and movie stars", and because Chesterfields were described in the advertisements as "mild". By the end of 1943 she was smoking a pack a day of Chesterfields. She met her husband, plaintiff Antonio Cipollone in 1946. In February 1947, Rose and Antonio Cipollone were married.

 Mrs. Cipollone attempted to quit smoking while pregnant with her first child in 1947, but even then she would sneak cigarettes. While she was in labor she smoked an entire pack of cigarettes, provided to her at her request by her doctor, and after the birth of her first child she resumed smoking. She smoked a minimum of a pack a day and as much as two packs a day.

 In 1955, she switched from Chesterfields to L&M cigarettes (also manufactured by Liggett) because L&M cigarettes were filtered, and she believed that the filter would trap whatever was "bad" for her in cigarette smoking. She relied upon advertisements which supported that contention. She continued to smoke approximately a pack and one-half a day until 1968, when she switched to Virginia Slims (manufactured by defendant Philip Morris Incorporated). In this instance, she changed because the cigarettes were glamorous and long, and were associated with beautiful women -- and the liberated woman. In this period she smoked again between one and two packs a day.

 Because she developed a smoker's cough and heard reports that smoking caused cancer, she tried to cut down on her smoking. These attempts were unsuccessful. Throughout this period her husband opposed her smoking and frequently brought to her attention articles that stated that smoking was harmful.

 She testified that she believed that the "tobacco companies wouldn't do anything that was really going to kill you", and she read and relied upon statements from the industry in the media that indicated that there was no specific proof that cigarette smoking caused cancer.

 Mrs. Cipollone switched to lower tar and nicotine cigarettes based upon advertising from which she concluded that those cigarettes were safe or safer. In the 1970's she switched to Parliaments (manufactured by Philip Morris) because the filter was "recessed". The ads professed, and she concluded, that the fact that the filter was recessed made smoking safer. In 1974, she changed from Parliaments to True cigarettes (manufactured by Lorillard, Inc.) based upon the recommendation of her family physician who indicated that if she had to smoke she should smoke True. Again, she saw and relied upon the True ads that indicated that they were low in tar and nicotine, and that reinforced her view that they were safe or safer. In 1981 her cancer was diagnosed, and even though her doctors advised her to stop, she was unable to do so. She even told her doctors and her husband that she had quit when she had not, and she continued to smoke until June of 1982 when her lung was removed. Even thereafter she smoked occasionally - in hiding. She stopped smoking in 1983 when her cancer had metastasized and she was diagnosed as fatally ill. Mrs. Cipollone eventually died on October 21, 1984.

 There has been overwhelming evidence presented to the jury from which they could conclude that smoking causes lung cancer, that smoking caused lung cancer in Mrs. Cipollone, and that lung cancer was the cause of her eventual death.

 The conduct of Mrs. Cipollone must be viewed in light of the activities of the defendants during this same time period. In respect to the conduct of the defendants, the jury could reasonably infer and find as follows:

 There was a time period in which the defendants might reasonably contend that the risks of cigarette smoking were not clearly known and defined. Gradually, however, the scientific and medical evidence began to mount beginning in the 1950's, and eventually the accepted view in the medical and scientific community was and is that smoking causes lung cancer and other diseases. For a considerable period of time in Mrs. Cipollone's early smoking career, defendants and others in the tobacco industry not only failed to warn of the risks of smoking but to the contrary suggested that cigarette smoking was safe and harmless and, indeed, that this contention even had the support of medical doctors.

 Early TV ads showed machines akin to the Wizard of Oz, including "the Acuray", a brain machine which assured a safe cigarette, and the "Quality Detective". Ads referred to existing cigarette "research laboratories" and contained phrases such as "best for you", "better quality" "chemical analysis", "mild", etc. One print ad suggested that smoking a particular cigarette was "Just What The Doctor Ordered".

 Evidence presented by the plaintiff, particularly that contained in documents of the defendants themselves, indicates the development of a public relations strategy aimed at combating the mounting adverse scientific reports regarding the dangers of smoking. The evidence indicates further that the industry of which these defendants were and are a part entered into a sophisticated conspiracy. The conspiracy was organized to refute, undermine, and neutralize information coming from the scientific and medical community and, at the same time, to confuse and mislead the consuming public in an effort to encourage existing smokers to continue and new persons to commence smoking.

 In this regard plaintiff has presented evidence, again, mainly from the files of the defendants themselves, which demonstrates a deliberate intent and purpose to challenge all adverse medical and scientific evidence regarding smoking, irrespective of its truth or validity. Indeed, the strategy to meet the claims of the scientific community was formulated before the contents of the scientific evidence were known. Defendants determined that if a report was publicized which demonstrated the dangers of cigarette smoking, attempts would be made to offset it, and even attack the qualifications of the researcher, if necessary.

  Defendants made no attempt to conduct any research before the 1950's despite growing scientific evidence of risks. *fn2" Plaintiff offered evidence demonstrating that adverse results generated by research eventually conducted by the cigarette companies themselves were suppressed and concealed. At least one scientist testified as to threats made to him if he published his findings, and there was other evidence of attempts to suppress or coerce others.

 The most subtle evidence of misrepresentation comes from the creation of the Tobacco Institute Research Committee (Council for Tobacco Research). The foregoing was created and highly publicized as the industry's good faith effort to search for the truth, learn the risks of cigarette smoking, and then supposedly report those findings to the general public. Plaintiff has presented evidence from which the jury could reasonably conclude that the creation of this entity and the work performed was nothing but a hoax created for public relations purposes with no intention of seeking the truth or publishing it. Evidence has been presented that the research actually conducted was unrelated or not pertinent to the real health issues. Furthermore, a minimal amount was invested when compared to sales, profits and amounts expended for advertising.

 Defendants were well aware of the extreme difficulty smokers had and have in quitting smoking. They knew based upon sophisticated research that a smoker who found it difficult to quit, particularly faced with claims of hazards or risks, would focus on any rationalization to justify his or her continued smoking. Plaintiff presented expert testimony that Mrs. Cipollone was heavily dependent on tobacco and would grasp at any rationalization to continue, and that the cigarette companies provided that rationalization on a steady basis. The defendants and others in the industry repeatedly and publicly questioned the scientific and medical literature which linked smoking with cancer and other diseases. Furthermore, plaintiff offered expert testimony which demonstrated that even after the companies ceased making specific health claims, the vast advertising of the industry created a consistent message of purity, health, safety, reduced tars and nicotine, etc. This campaign served to create doubt in the minds of the consumer as to smoking dangers, and played on the weakness of those who were either addicted and/or dependent.

 Plaintiff presented testimony that $ 250,000 is spent per hour 24 hours a day, 7 days a week, 365 days a year on cigarette advertising. Even in connection with the decisions to reduce tar and nicotine and advertise its benefits, defendants did not and do not concede any relevance to health for fear of making an admission. Rather they contend that such products are merely an accession to a baseless consumer concern - an effort to placate and humor a misguided public which believes in a risk that does not exist. The intensity of the advertising and public relations was sufficient to create the desired doubt in the minds of the consumer, and overwhelm or undermine pronouncements as to the dangers.

 A jury might reasonably conclude from the foregoing that defendants in particular, and the industry in general, intentionally and willfully ignored the known health consequences to consumers from the sale of their products; that their so-called investigation into the risks was not to find the truth and inform their consumers, but merely an effort to determine if they could refute the adverse reports and maintain their sales. Defendants were confronted with a choice between the health and lives of the consumers and profits and the jury could reasonably conclude that the industry chose profits. Health of consumers does not receive even passing mention in the internal documents of the defendants, except as to the advantage to be gained by expressing such concern publicly. No witness presented by plaintiff was confronted with a single advertisement by any tobacco company voluntarily acknowledging even the possible existence of a risk to health.

 As to plaintiff's alternative safer design claim, there has been evidence presented that a safer design was available, capable of being manufactured and sold, and that there was an election not to do so for fear that to market such a product would constitute an admission that other products already on the market were not safe but could have been. Evidence was presented to confirm that Mrs. Cipollone would have at least tried the new cigarette, and that had she continued to smoke it, it would have reduced her risk of lung cancer. In this instance, as well as all aspects of the research being conducted by the companies and under the auspices of the Tobacco Institute, there was the ever prevalent presence of lawyers determining, or at least participating in what research should be conducted, and what should be published or made available to the general public. A jury might conclude that this was just a normal business precaution, but in this case it could reasonably conclude that research was being conducted to improve the public relations image for the tobacco companies or to avoid liability, but never to provide the consumer with any adverse or necessary information as to health which might result from such research.

 Plaintiff presented evidence that defendants directed particular efforts toward influencing doctors. Recognizing that smokers would look to their doctors for advice and that many doctors were smokers themselves, the industry created a magazine entitled Tobacco and Health (Research), and mailed it free to practically every doctor in the country, as well as many others in positions of influence. The publication was a blatant and biased account of the smoking "controversy". It had one purpose - to convince doctors that the claimed risks were unfounded, unsupported or refuted. There was also chilling evidence that means were being considered to combat the American Cancer Society's anti-smoking efforts in the public schools.

 It may not be appropriate to draw any inference at this stage of the proceeding - before the defendants have presented their case - arising from the internal inconsistency of the contentions of the defendants. Those contentions, however, have manifested themselves in the openings and cross examination of plaintiff's witnesses. While asserting that the evidence regarding the relationship between smoking and lung cancer is deficient and unreliable and without scientific and medical basis, and having repeatedly and consistently taken that position publicly up to and including the present, defendants assert that Mrs. Cipollone was responsible for not accepting and relying upon this allegedly inaccurate and unsupported information. In essence, defendants contend that Mrs. Cipollone was sufficiently warned by what these defendants contend was unproven and unreliable, and is barred from recovering from them if or because she believed what they said about the subject of smoking and health.

 That precarious line which the defendants seek to walk between warnings and causation may not be sufficient to preclude defendants from taking these seemingly inconsistent positions, but it may permit the jury to draw an adverse inference as to the good faith and credibility of defendants' factual assertions.

 The irony of defendants' position is compounded by defendants further assertion that the particular cancer suffered by Mrs. Cipollone is not the type of cancer caused by or associated with smoking while simultaneously contending that there is no type of cancer which has been proven to be caused by smoking.

 The jury, based upon the foregoing, may reasonably conclude that 1) defendants negligently failed to conduct research when it was warranted; 2) that they made affirmative health claims which were untrue; 3) that they failed to warn of risks about which they had knowledge; 4) that they deliberately and intentionally refuted, denied, suppressed and misrepresented facts regarding the dangers of smoking 5) that they withheld knowledge of and failed to market a safer cigarette in order to avoid any admission of liability; and 6) that they engaged in an industry wide conspiracy to accomplish all of the foregoing in callous, wanton, wilful and reckless disregard for the health of consumers in an effort to maintain sales and profits.

 The evidence presented also permits the jury to find a tobacco industry conspiracy, vast in its scope, devious in its purpose and devastating in its results. The jury may reasonably conclude that defendants were members of and engaged in that conspiracy with full knowledge and disregard for the illness and death it would cause, and that Mrs. Cipollone was ...

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