Tobacco Foes Pin Hopes on First Snuff-User Death Suit

OKLAHOMA CITY —  When Sean Marsee was 12, he went to a rodeo in the backwaters of Oklahoma and there he tried Red Man chewing tobacco for the first time.

Soon thereafter, he switched to snuff--moist, smokeless tobacco that, by congressional mandate, must carry warnings by early next year that it may cause mouth cancer, gum disease and tooth loss.

Eventually, Marsee was using so much--a pinch at a time between cheek and gum--that he was buying two of the small round tins every three days. His mother said her son believed snuff was safer than smoking. If it wasn’t, there would have been warning labels, he reasoned.

Track Star

Marsee, the most valuable member of his school track team, died in February, 1984, of oral cancer, at age 19.

His once-handsome face was horribly deformed from the radical operations that removed cancerous portions of the jaw. Death occurred when Marsee’s thin white feeding tube, necessitated by his inability to take food orally, dislodged and the doctors could not reinsert it because of the swelling.

Now comes the legal battle stemming from his death, being played out in the federal courthouse here. His mother, Betty Ann, is suing the U.S. Tobacco Co., manufacturers of Copenhagen snuff--the brand her son used--for $147 million. Those who follow anti-tobacco litigation say that it is the strongest liability case so far against the heretofore invincible tobacco industry.

The case is the first of its kind for smokeless tobacco, the fastest-growing segment of the tobacco industry and one that has become increasingly popular with teen-agers.

‘Best Shot to Date’

“This case is our best shot to date,” said Richard Daynard, a law professor at Boston’s Northeastern University and editor of the Tobacco Products Litigation Reporter newsletter. “What makes it attractive is here we have a young kid, dead at 19, a high school athlete who used the product believing it was safe.

“If the defense loses, the result will be a strong encouragement for other people to sue,” he said. “Right now, the tobacco industry is very proud of never having paid a penny in product liabilities. But, once there is any bloodletting, the myth of the industry’s invulnerability will be gone. They will be just another manufacturer of an extremely dangerous product.”

But allies of the plaintiffs concede that they face an uphill struggle. Dr. Gregory Connolly, director of dental health at the Massachusetts Department of Public Health, said it will be difficult to prove that the tobacco caused the fatal illness because Marsee first developed tongue cancer in a spot that does not coincide with where he regularly positioned his snuff.

Doubt in Jurors’ Minds

“It’s not clear-cut, and the industry is going to use that to create doubt in the jurors’ (minds),” he said.

The trial, which began May 19, could last two months and bring as many as 100 witnesses to the stand, the majority of them offering expert opinions on various aspects of the case.

The courtroom itself has something of a David and Goliath atmosphere.

On the plaintiff’s side is Mrs. Marsee, widow, registered nurse and mother of four other children. Her lawyers are George and Dania Deschamps-Braly, a husband-wife legal team from the Marsee hometown of Ada, a community of 15,000 in southeastern Oklahoma. They have essentially put aside the rest of their legal practice to concentrate on the Marsee case, renting an Oklahoma City apartment that they are using as an office for the duration of the trial.

“They are very competent and know a lot about it,” Daynard said. “They’ve taken endless depositions and read everything possible.”

The U.S. Tobacco side includes lawyers from New York and Arkansas firms, along with Oklahoma City Mayor Andrew Coats. Walt Garrison, former running back for the Dallas Cowboys and now a vice president for U.S. Tobacco, represents the company at the defense table.

By mutual agreement, both sides will not discuss the case now that it has gone to trial. But, the opening arguments, along with briefs filed with the court, give some sense of how the lawyers plan to proceed.

Mrs. Deschamps-Braly, in her opening remarks, contended that U.S. Tobacco knew that smokeless tobacco could cause cancer but chose not to issue any warnings, instead implying that it was safer than cigarettes.

Lack of Warning Cited

“The defendant’s actions showed a reckless disregard for public safety, in that U.S. Tobacco failed to warn consumers of health hazards, U.S. Tobacco failed to warn that their product is addictive, U.S. Tobacco failed to reduce the level of nitrosamines (an animal carcinogen) in their product,” she said. “U.S. Tobacco’s advertising implied that their product was a safe alternative to cigarettes. U.S. Tobacco advertised its snuff so as to appeal to millions of adolescents.”

She said also that she planned to prove that the snuff manufacturer wanted to quickly “exploit” the health issues that were causing cigarette manufacturers problems.

Alston Jennings, a Little Rock, Ark., lawyer and lead counsel for the defense, emphasized in his opening remarks that the jury had to be certain that it was Copenhagen snuff that caused Marsee’s death and, if that could not be proved, then there was no case.

“I think the first and most important decision you will have to make is whether or not a particular disease in a particular person was caused by a particular product,” he said.

And, in a brief filed with the court, the defense said it would argue that the Marsee family was more susceptible to disease because of immune-system deficiencies, as well as a “family history of intermarriage between blood relatives, physical deformities, mental illness, and unexplained childhood death on the decedent’s father’s side, as well as a history of cancer and blindness on his mother’s side.”

Two Tobacco Victories

Late last year, the tobacco industry won two suits over smoke-related illnesses. One took place in Santa Barbara, Calif., and the jury deliberated a day and a half before finding in favor of Reynolds Tobacco Co. The suit, brought by attorney Melvin Belli, involved a man who smoked two to three packs of cigarettes a day and then suffered from a series of illnesses before dying at age 69.

But Connolly said he thought one major legal setback could all but wipe out the smokeless tobacco industry.

“If Marsee wins, you’re going to have two more cases filed in two months, four in the next year and eight after that,” he said.

“They don’t have the money like Reynolds or Phillip Morris to survive. They are a strong company, but they are the new kid on the block and don’t have the resources the other companies do.”

Two lobbying groups for the tobacco industry--the Smokeless Tobacco Council and the Tobacco Institute--refused comment on the importance of the Oklahoma City trial, saying it would be inappropriate to speak while it is under way.

But that is not the case for the anti-tobacco sector, with Connolly as a major spokesman. He criticized the snuff manufacturer for making its product synonymous with sport, from skiing to the Indianapolis 500. He said U.S. Tobacco, among other things, boasted of contributions to drug and alcohol treatment programs, while at the same time manufacturing Zig-Zag papers, often used to roll marijuana cigarettes.

‘Tip of Iceberg’

Daynard, meanwhile, said the Marsee case was only “the tip of the iceberg.”

“There are probably only five to 10 young people in the country diagnosed as having mouth cancer from smokeless tobacco. But, because it takes seven to eight years to get that cancer, in the next 10 years you could see hundreds or even thousands of these cases,” he said.