- 2nd hand smoking lawsuits
smoke case -- settled favorable to the plaintiff, January 19, 2006
shortly before it was due to go to trial, and 10 years after Larry
Ray Thaxton had filed the case. A life-long non-smoker, Thaxton
of lung cancer at the age of 40, and his widow continued the case.
Below is information on this from Edward L. Sweda, Jr., Senior
Attorney, Tobacco Control Resource Center in Massachusetts, U.S.A.
BACKGROUNDER ON THAXTON V. NORFOLK SOUTHERN RAILWAY CO. - SECONDHAND
AND LUNG CANCER CASE, WHICH WAS SCHEDULED TO GO TO TRIAL TOMORROW IN
WAS SETTLED LATE LAST WEEK IN A MANNER FAVORABLE TO THE PLAINTIFF.
Employer's liability for failing to provide a safe and
healthful workplace free from deadly exposure to secondhand smoke was
at issue in this case. See Thaxton v. Norfolk Southern Railway
al., 229 Ga. App. 18, 520 S.E. 2d 735 (1999)).
This lawsuit was filed on February 12, 1996 by Larry
Ray Thaxton, who named as defendants Norfolk Southern Railway Co. and
its subsidiary, Alabama Great Southern Railway Company. In November
1995, Mr. Thaxton, who was born in 1956 and a lifelong nonsmoker, was
diagnosed at age 39 with lung cancer; he died in May 1996 at the age of
40. After a post-mortem autopsy, he was determined to have died from
lung cancer. His widow, Jacqueline Thaxton, continued with the case.
From age 26 until the time of his death, Mr. Thaxton
was a railroad worker employed by the Norfolk Southern Railway in an
outdoor job on various sites far from his home. During the week, he was
housed in bunk trailers in various campgrounds provided by the
railroad. Mr. Thaxton regularly complained to his employers about his
constant involuntary exposure to secondhand tobacco smoke from
co-workers in the bunk cars where he lived during the work week.
A quantitative risk assessment incorporating
experimental measurements of secondhand smoke concentrations in a
typical bunk-trailer indicated that Mr. Thaxton's work-related
secondhand smoke exposure doubled his odds of lung cancer death.
The railroad contended that Mr. Thaxton was not
exposed long enough, nor to enough secondhand smoke to increase
measurably his risk of lung cancer. The railroad further contended that
secondhand smoke exposures outside of work or other unknown causes
accounted for Mr. Thaxton's lung cancer, and that it was
"scientifically impossible" to conclude that his work-related
secondhand smoke exposure caused his lung cancer.
The plaintiff is represented by Attorney John Moss and
his co-counsel, Charles Mathis. The trial, which was scheduled to begin
on Tuesday, January 24, 2006 - almost a full decade after the lawsuit
was filed - was settled on Thursday night, January 19, 2006.
The case had been scheduled for trial at the Fulton
County (Georgia) Courthouse, 185 Central Avenue in Atlanta. Presiding
state court action is the Honorable Penny Brown
Atty. Moss can be reached at 404-264-1292 or firstname.lastname@example.org
Plaintiff's scientific expert on secondhand smoke,
James Repace, MSc. can be reached at Repace Associates, Inc.,
Secondhand Smoke Consultants, 101 Felicia Lane, Bowie, MD 20720, and email@example.com
For information on other secondhand smoke lawsuits
around the country, contact Edward L. Sweda, Jr., Senior Attorney,
Tobacco Control Resource Center, Northeastern University School of Law
in Boston, at 617-373-8462 or firstname.lastname@example.org
from Kansas City Daily Record, December 21, 2005, headlined, Flight
attendants' secondhand smoke claims ready for takeoff, writer,
Nora Lockwood Tooher
In an order issued Nov. 28 , Florida's highest
court declined to review a Florida Court of Appeal decision upholding a
$500,000 award to Lynn French. A former TWA flight attendant, French
blamed her chronic sinusitis on secondhand smoke she inhaled in
airplane cabins until smoking was banned on U.S. commercial airliners
Rhonda Weinstein, French's
attorney, said the decision marks the first
time that the tobacco companies will be forced to pay damages to a
flight attendant injured by secondhand smoke.
The defendants had argued that each claim needed to be
tried separately to determine liability. But the Florida Court of
Appeal held that pursuant to a 1997 settlement with the tobacco
companies, the only issues to be determined were whether each attendant
suffered from one of the diseases found to be linked to secondhand
smoke, and what the damages were.
The Florida Supreme Court's decision not to review that
holding "leaves the decision in full force and effect," Weinstein said.
In 1991, a class-action
suit was filed on behalf of about 60,000 flight
attendants who had been exposed to secondhand smoke. A 1997
court-approved settlement provided that the tobacco companies would pay
$300 million to fund a cancer research foundation and $49 million in
attorney fees. (Broin v. Philip Morris, 641 So.2d 888). The plaintiffs
received nothing, but were given the right to sue individually.
As part of the settlement, the tobacco defendants also
agreed to a shift in the burden of proof for purposes of general
Specifically, the Florida
Court of Appeal noted: "[A]nother substantial
benefit is the burden-shifting provision. This provision establishes a
'generic causation' presumption in favor of the flight attendants."
Following the settlement, about 3,000 flight attendants
brought individual suits against the tobacco defendants for illnesses
caused by secondhand smoke. While plaintiffs' lawyers argued that the
issue of liability had been resolved in the Broin settlement, the
tobacco companies claimed that although they had assumed the burden of
proof on the issue of general causation, each plaintiff was required to
prove the individual elements of their claims.
In December 2004, the
Florida Court of Appeal upheld a
jury verdict in the French case, finding that the settlement agreement
made it clear that there was no need to prove liability for each claim.
"The defendants' position that each individual
plaintiff is required to prove and reprove breach of duty and all other
elements of their tort claims (except for general causation) defies
logic. The assumption that plaintiffs would agree to end six years of
litigation, including a trial that had lasted nearly four months, in
favor of relitigating each common liability issue a thousand times over
is an absurd result that we will not adopt. [T]he intent of the parties
to the settlement agreement was to focus on the individual retained
claims and determine whether a 'plaintiff's disease was actually caused
by exposure to secondhand smoke, and if so, what damages were
sustained,'" the court said. (Philip Morris v. French, 897 So.2d 480
In her jury trial, French
was initially awarded $5.5 million, but trial
judge Frederika G. Smith reduced the award to $500,000, reasoning that
the plaintiff appeared to be in no physical distress.
Weinstein, whose Miami
firm is representing about 500
flight attendants, said the Florida Supreme Court ruling sets the stage
for up to 3,000 "mini-trials" to determine whether individual flight
attendants are entitled to damages.
In her view, the court's order will have a significant
"For over two years since the initial verdict in the
French case, most judges in Miami-Dade circuit court had been reluctant
to schedule the flight attendant cases for trials until resolution of
the appeals process. Now trial judges have the guidance from the
appellate courts that they need with respect to what issues should and
should not go to the jury for consideration, and the plaintiff firms
handling these cases soon expect to begin the process of noticing cases
for trial," Weinstein said.
In the remaining flight attendant trials, the
plaintiffs will simply have to show they have one of the enumerated
diseases and that it was a result of their exposure to tobacco smoke on
airplanes, according to Weinstein.
"It really means a logjam
has been cleared," said Edward Sweda, senior
staff attorney for the Tobacco Products Liability Project at
Northeastern University School of Law in Boston.
"Many of these cases were on hold," he said, "waiting
for a definitive ruling one way or the other on the question of whether
the 1997 settlement had a provision, as the plaintiffs were claiming,
that the companies agreed to the fact that secondhand smoke causes a
variety of diseases."
far, only seven flight attendant claims have
gone to trial, with defense verdicts in five cases and a mistrial
declared in one. French's case was the only plaintiff's victory.
In the trials that resulted in defense verdicts,
tobacco industry lawyers convinced juries that factors other than
secondhand smoke could have caused the
individual flight attendants' diseases, including emphysema, asthma and
Weinstein expects trials on the remaining claims to
start sometime next year .
2nd hand smoking case, Florida, U.S.A. -- June
18, 2002 -- jury awards five times what plaintiff requested in
June 18, 2002, headlined:
Companies Must Pay Flight Attendant $5.5 Million, by William
Morris Cos. and other U.S. tobacco companies were told to pay $5.5
to a flight attendant who claims second-hand smoke on airlines caused
court jury in Miami deliberated an hour and a half before awarding the
damages to Lynn French, a non-smoker. The case marks the first time a
tobacco company has been ordered to pay damages for second-hand smoke.
French's lawyers had requested about $1.06 million in compensatory
and under a previous settlement she wasn't seeking punitive damages.
face similar claims by thousands of flight attendants, claimed French's
illness isn't a result of second-hand smoke.
the rest of the plaintiffs who file cases,'' French said. "Maybe
they won't have to go through what I went through.''
said in a
that it will challenge the verdict.
R.J. Reynolds Tobacco Holdings Inc., British American Tobacco Plc's
& Williamson Tobacco Corp., and Loews Corp.'s Lorillard Tobacco Co.
1997 settlement of class-action claims by flight attendants. That
$350 million settlement allowed individual suits to proceed though it
men and two women on the jury awarded French $2 million for past
and $3.5 million for future suffering.
The verdict was
after the market closed.
receive money from the 1997 settlement, which financed health research
and paid attorneys' fees, they gained legal leverage for their own
The settlement puts the burden of proving that second-hand smoke
cause disease on the tobacco industry. About 3,200 flight
across the U.S. have filed individual claims.
1976. In 1988, the U.S. government banned smoking on all flights
less than two hours. Two years later, smoking was prohibited on all
less than six hours. TWA filed for Chapter 11 bankruptcy in 2001 and
acquired by AMR Corp., the parent of American Airlines.
is terrific, not just for the plaintiff and her family,'' said Edward
a senior attorney with the Tobacco Products Liability Project at
University. "It sends an educational message to the public about
how hazardous second- hand smoking is.''
In the first
to go to trial, a Miami jury in April 2001 rejected a claim by former
flight attendant Marie Fontana. She sought more than $1 million
reimbursement for medical costs and lost earnings plus payments for
A second case
Woman Loses Good
But Wins Lawsuit in Sydney, Australia - ETS
Morning Herald, May 2, 2001
Corporation, May 2, 2001
from The Sydney Morning Herald, [smh.com] May 2, 2001, writer
identified, headlined: Woman wins passive smoking test case
A woman contracted throat cancer because of
years of passive smoking she endured during her
employment as a barmaid in NSW, a court
Marlene Sharp, 63, sued the Port Kembla RSL
for negligence claiming her cancer was caused by
years of breathing other people's smoke while
working at the club between 1984 and 1985.
The four-man Supreme Court jury took about four
hours to decide the club had been negligent and
awarded her more than $450,000 in damages.
In legal argument following the jury's verdict, Mrs
Sharp's barrister, Mr Peter Semmler, QC, said the
result was a world first.
"This is the first time in the world that anyone has
been awarded damages for cancer caused by
environmental tobacco smoke," he said.
Mrs Sharp, a non-smoker, told the jury that about
80 per cent of the patrons at the Port Kembla
RSL Club, in Wollongong, were smokers. She
worked at the club from 1984 to 1995.
"The smoke seemed to rise and come straight at
me. There were people sitting, smoking, drinking,
exhaling. Cigarettes in the ashtrays burning away.
It wasn't very nice," Mrs Sharp said.
Mrs Sharp first noticed a lump in her neck in May
1995. It was diagnosed as malignant cancer of the
larynx and she underwent surgery and
She is in remission but doctors have told Mrs
Sharp there is a high risk of her developing a
secondary cancer, probably in the lungs.
Because her epiglottis was removed she had
problems swallowing food, could not drink hot
liquids, coughed uncontrollably at times, and woke
up with a choking sensation during the night, her
lawyer, Mr Semmler, said.
Mrs Sharp said she "hates the smell of smoke" but
was often surrounded by it. "She has never
smoked voluntarily but she was an involuntary
smoker of large quantities of other people's
cigarette smoke," Mr Semmler said.
When she wasn't working behind the bar, she was
emptying ashtrays and picking up glasses.
"She was exposed to large amounts of smoke,
many of the patrons would sit on stools, a lot of
their smoke was exhaled straight into her face as
she walked back and forth along the bar serving
drinks," he said.
from the Australian Broadcasting Corporation, May 2, 2001, reporters
identified, headlined, Passive smoking cancer win "a world first"
cancer of the larynx after working behind the bar of the Port Kembla
for 11 years.
won what's believed to be the world's first damages case for cancer
by passive smoking. Geoff Sims reports.
The four-man jury
under four hours to reach its verdict, after a trial that had taken two
Mrs Sharp had told
smoke at the club would rise up into the faces of barstaff for hours on
end during her shifts at the club.
She was forced to
in 1995 after developing cancer of the larynx, a disease the court
would be extremely rare if it were not for tobacco smoke.
Mrs Sharp's counsel,
Semmler QC told the Supreme Court after the verdict was delivered it is
the first time in the world there has been a successful claim of
for cancer from passive smoking.
Mrs Sharp has been
a total of $466,000 and attacked the WorkCover Authority for not
to settle her case.
Mrs Sharp says the
insurers, WorkCover, could have settled for less.
"I'm so very happy,
happy with the jury but I'm very very
disappointed with the
Authority - they could have settled three years ago in 1998," she said.
"I believe they've
over $1 million on this case and they could have settled back in 1998
far less than what I've received."
Chairman of Action on
and Health Professor Simon Chapman says the ruling is enormously
and strengthens the call for smoking to be banned in bars and clubs.
"It's difficult to
of any worker in any situation who would be more exposed to passive
than someone who works in a bar," he said.
"This will send
all around the world and I'd be very
surprised to see smoking
allowed to continue in bars and clubs very much further into the
The manager of the
RSL Club says he cannot ban smoking in his club, while other clubs
still allow patrons to do so.
This is despite the
Court awarding former employee Marlene Sharp $450,000 for cancer she
from passive smoking while working in the bar.
Club manager Darcy
says it is up to the New South Wales Government and other authorities
ban smoking, not him.
"How can I walk out
and tell people they can't smoke in bars when it's not unlawful?" he
"Put it this way
up to the combined clubs of New South Wales to make a law for one and
Updated 23 January 2006