he nation's biggest tobacco companies suffered their first defeat in a secondhand smoke case this week, and they said yesterday that they would use the setback to challenge a critical ruling governing the $349 million settlement they struck with the nation's flight attendants nearly five years ago.
On Tuesday, a Miami jury awarded $5.5 million in compensatory damages to Lynn French, 56, a flight attendant who does not smoke but has chronic sinus problems from spending more than a dozen years in smoky airplane cabins.
She is one of 2,800 flight attendants with similar cases against the tobacco industry under unusual conditions, stemming from the 1997 settlement, that make it easier for them to sue cigarette makers and prevail.
The tobacco companies — Philip Morris, R. J. Reynolds, Lorillard and Brown & Williamson — have long sought to strip away some of the legal advantages awarded to the flight attendants, but have been blocked by the courts because they had, until now, never lost a case. Ms. French's victory, however, gives them their first opportunity to challenge the right of thousands of flight attendants to bypass some basic legal hurdles.
In particular, the tobacco companies intend to contest a 2000 order by Judge Robert P. Kaye, the Miami circuit judge who oversaw the settlement. In it, Judge Kaye relieved the flight attendants of the burden, borne by the plaintiff in most product liability cases, of proving that the companies were either negligent or liable for making a defective product.
"That was not what we agreed to," said William S. Ohlemeyer, associate general counsel for Philip Morris, referring to the agreement that set aside $300 million for research into diseases suffered by flight attendants, such as emphysema and lung cancer.
Lawyers for the flight attendants acknowledged that Ms. French's victory could reopen the debate in Miami's Third District Court of Appeal, but argued that the outcome in future cases will largely be the same.
Under the settlement, in contrast with other cases, juries are instructed to presume that secondhand smoke can cause debilitating illnesses like lung cancer, a significant tactical edge that the tobacco companies would not be contesting in the appeals court.
Even if the tobacco companies prevail on appeal, the plaintiffs' lawyers say they are still optimistic about future cases.
"What the tobacco companies have not grasped is that it ain't business as usual anymore," said Stanley Rosenblatt, one of the lawyers who negotiated the flight attendant settlement. "People are basically saying, enough of your lies. Juries now are seeing through all their fancy lawyering, and all their fancy charts, and just sock it to them."
In the last few weeks, the tobacco industry has suffered a round of legal losses, marked by the reinstatement of a $79.5 million punitive award in Oregon and a ruling by a California judge that R. J. Reynolds violated the 1998 settlement with 46 states by marketing to children.
But in the four previous trials involving nonsmokers, tobacco companies have fared significantly better, in part because it is so hard to prove that secondhand smoke, as opposed to other environmental pollutants or medical factors, actually caused the illness in question. Three of the trials ended with verdicts for the industry, while another ended in a mistrial last month because the flight attendant who sued repeatedly fainted in the courtroom.
Although Ms. French's victory was notable — her lawyers asked for $980,000 in compensatory damages but received more than five times as much — its value as a legal precedent is unclear. Aside from the flight attendants who are covered by the settlement, all other nonsmokers still have to prove that secondhand smoke can cause illnesses, a point that the tobacco companies are unwilling to concede.