SMOKER LOSS IN INDIANA NOT OMEN FOR FUTURE [08/26]

The loss by plaintiffs in an Indiana case brought against the major cigarette manufactures is not an omen for the future for at least two reasons.

One is that the law in Indiana was less favorable to plaintiffs than the law in Florida where a smoker recently won a $750,000 verdict in a somewhat similar case.

To learn more about why these two cases were decided differently, and to learn if the law in YOUR state favors the industry in such cases, read the two press releases below which were issued on the day the verdict was announced.

JURY VERDICT FOR TOBACCO COMPANIES IN INDIANA NOT A PREDICTOR FOR FUTURE

An Indiana jury verdict for defendants in the closely- watched Rogers case against the major tobacco companies is neither a surprise nor a good predictor for future law suits, says law professor John Banzhaf.

"For technical reasons the plaintiffs were not able to introduce incriminating previously-secret industry documents to show how the tobacco companies concealed information about nicotine addiction, as they had in a Florida case where a jury returned a $750,000 verdict for plaintiffs," he said.

In future cases where such documents can and will certainly be introduced in evidence, the results are more likely to be like the plaintiff's victory in Florida than the tobacco industry's victory tonight in Indiana.

A second important factor is that Indiana requires a plaintiff to show that the defendants' wrongdoing was more than fifty percent responsible for his injuries; i.e., that his responsibility is less than half.

Many states þ including Florida þ do not have that requirement, and that was a major factor in the $750,000 plaintiff's verdict in that state.

Since the jury awarded plaintiff Grady Carter exactly half of the one-and-one-half million dollars his attorney had requested, it looks like they determined that the plaintiff and defendant were equally culpable.

"There will be many more suits in states like Florida which allow a plaintiff's verdict even if the jury finds that the plaintiff was more than fifty percent responsible for his own injuries, and many states where the hundreds of incriminating internal industry documents can be introduced in evidence."

"This means that while any one plaintiff cannot be reasonable sure of a victory, the six major tobacco companies can be absolutely certain that there will jury losses in the future."

"When you kill over 400,000 people each year, and cripple millions more, you can be sure that a growing number will sue you, and that many juries will find at least some of their cases sufficiently persuasive to award damages."

Banzhaf and his organization encourage law suits against the tobacco industry, and work with plaintiffs and their attorneys on them.

STATE LAW WAS MAJOR FACTOR IN YESTERDAY'S JURY VERDICT FOR TOBACCO INDUSTRY -- BUT MANY OTHER STATES þ LIKE FLORIDA þ HAVE MORE FAVORABLE STATE LAWS

An important difference in state law was one of two major factors which recently caused a Florida jury to award $750,000 to a former smoker, and to rule for the tobacco industry in Indiana law night, says law professor John Banzhaf of Action on Smoking and Health (ASH).

Both states, like virtually all others (46), permit plaintiffs to win even if they are partially responsible for their own injuries. However, in Indiana, the plaintiff must prove that the defendant's fault or responsibility was at least as great as the plaintiff's þ something the jury foreman said Yvonne Rogers failed to do.

In contrast, in Florida, Grady Carter could win even if the jury found that he was at least as much at fault as the defendant. Since the jury award was exactly half of what the plaintiffs' lawyer had requested, it is quite likely that the jury found both about equally responsible.

Twelve states, including several of the largest, have adopted the "pure comparative negligence" system under which plaintiffs can recover even if they are mostly to blame for their own injuries. These include Alaska, California, Florida, Kentucky, Louisiana, Michigan, Mississippi, Missouri, New Mexico, New York, Rhode Island, and Washington.

Twenty one states use a "less than or equal to" system -- or the "fifty percent" system -- which provides that a contributorily negligent plaintiff can recover damages only if the plaintiff's fault is less than or equal to the defendant's fault. Eleven states use the "less than" system -- or the "forty-nine percent" system -- which provides that a contributorily negligent plaintiff can recover damages if the plaintiff's fault is less than the defendant's fault.

Two other states have slightly different systems, and some have further modifications depending upon whether the recovery is sought under principles of negligence, or so-called "strict liability" which does not require proof of negligence.

The other major factor which worked against Yvonne Rogers in her retrial was that her lawyer could not introduce the type of secret documents which were apparently the key to the Florida victory because they hadn't been introduced in the first trial. This should not be a major problem in future cases, says Banzhaf.

ASH - ACTION ON SMOKING AND HEALTH 2013 H Street, NW / Washington, DC 20006 / (202) 659-4310