Reynolds Not Responsible for Ex-Smoker’s Cancer, Jury Finds

The tobacco industry scored a big victory Friday when a Florida jury found R.J. Reynolds Tobacco Co. not responsible for the lung cancer of a former smoker of its Winston and Salem brands.

The verdict in Jacksonville, reached after eight hours of deliberations, climaxed a four-week trial in which JoAnn Karbiwnyk, 59, accused Reynolds of negligently failing to warn of the risks of smoking when she took up the habit in her teens.

Although tobacco companies have agreed to settle three mega-lawsuits in the last few months, Friday’s verdict was their third straight victory in individual smoker lawsuits since August 1996--when Karbiwnyk lawyer Norwood “Woody” Wilner stunned the legal world by winning a $750,000 judgment against Brown & Williamson Tobacco Corp.

Friday’s outcome, like almost all else that happens in the smoking wars, will be viewed through the prism of the giant tobacco peace accord that cigarette makers hope will be ratified by Congress. A big plaintiff’s victory--particularly one involving punitive damages--could have deeply eroded support for the liability protections the industry wants to exchange for multibillion-dollar annual payments and public health concessions.

Reynolds, the second-largest U.S. tobacco firm, said the verdict, coming against a backdrop of steady anti-tobacco publicity, shows that “a jury of peers can hear all the evidence and independently judge the facts.”

“I’m disappointed, but life goes on,” Karbiwnyk told Associated Press after the verdict.

“These are tough cases,” said Greg Maxwell, a law partner of Wilner, adding that he wished they had done better in “educating the jury as to what Reynolds was doing . . . to persuade the public, including our client, that smoking was OK.”

Wilner had sought $400,000 in compensatory damages, along with punitive damages against Reynolds, claiming it had fraudulently concealed the risks and addictiveness of smoking.

Karbiwnyk, a loan processor, testified that she had smoked for 30 years--starting in the early 1950s when she was 16 or 17, and quitting in 1984. In 1995, she received a diagnosis of cancer of the lung and uterus, and the cancer spread to her brain. Though her cancers are in remission, the prognosis for her is guarded.

However, tobacco lawyers exploited several weaknesses in her case. Several members of Karbiwnyk’s family had contracted cancer, and Reynolds argued that she was “genetically wired” for the disease. Moreover, the appearance of her cancer more than a decade after she quit made more credible the defense claim that smoking had not caused her illness.

Perhaps most telling, Karbiwnyk had quit smoking on her first serious try when she was training as a runner--undermining arguments that she was addicted.

Karbiwnyk “was not exactly the strongest plaintiff,” said Martin Feldman, a tobacco analyst with Smith Barney & Co.

On the other hand, Karbiwnyk’s case appeared to be bolstered by several favorable evidentiary rulings.

Duval County Circuit Judge Michael Weatherby allowed Wilner to introduce potentially incriminating documents from Brown & Williamson--even though that company wasn’t a defendant in the case. (Along with Reynolds, the suit originally named B&W; and Philip Morris Cos., but later they were dismissed.)

Among the documents: a 1963 memo in which B&W;’s general counsel declared, “We are, then, in the business of selling nicotine, an addictive drug.”

Weatherby also let Wilner put in evidence an editorial from the Journal of the American Medical Assn. that stated: “The evidence is unequivocal--the U.S. public has been duped by the tobacco industry. No right-thinking individual can ignore the evidence.”

According to Feldman, Reynolds’ victory means that “the individual behavior of the plaintiff was more important than historical industry conduct. . . . The jury again said personal responsibility is what counts.”

The strategy of filing individual claims against cigarette makers had seemed thoroughly discredited through decades of failure when Wilner and his partners made legal history last year by winning $750,000 for lung cancer victim Grady Carter in the same courthouse where the Karbiwnyk trial was held.

Since then, however, cigarette makers have won all three cases tried to a verdict.

In September 1996, the industry won a wrongful-death case in Indiana. And last May, Reynolds lawyers defeated Wilner in a wrongful-death case brought by the estate of Jean Connor, who died of lung cancer at the age of 49. The Carter verdict is under appeal.

Richard Daynard, a Boston law professor who heads the anti-industry Tobacco Products Liability Project, said Wilner’s first dramatic triumph “gave people, myself included, unrealistic expectations.”

“I think there are cases that win and cases that lose,” Daynard said--adding that plaintiffs in Wilner’s last two cases had quit smoking on their first try, “so it’s very hard to say that the person is addicted.”

Hundreds more individual lawsuits are pending throughout the country, including about 200 that Wilner and Maxwell’s firm has filed in Florida. They expect to try four of those cases next year, Maxwell said.

A different outcome in the Karbiwnyk case could have hurt prospects for achieving a nationwide tobacco truce through congressional legislation.

A deal negotiated in June among the industry, state attorneys general and private anti-tobacco lawyers would require the industry to make multibillion-dollar annual payments, accept curbs on cigarette marketing, and fund smoking-cessation and anti-tobacco advertising campaigns.

In return, the industry would get an end to class actions and suits by state attorneys general, and a ban on punitive damages in individual cases.

Some critics of the deal have argued against changing the legal system for the sake of what they consider a rogue industry. The deal’s supporters have argued that since no one has ever won punitive damages from the industry, it’s not such a big concession to make. A plaintiff’s win in the Karbiwnyk case could have destroyed that argument.