Star-Ledger, May 17, 2004
By John P. Martin, Star-Ledger Staff
“After 20 years, epic tobacco lawsuit settled. Refusing to yield to cigarette makers, Westfield man’s family sees long case through.”
Peter Rossi smoked for 40 years, sometimes as much as four packs a day. Even when he was near death, on morphine to ease the pain of cancer, Rossi pretended to drag on a cigarette. He was 55 when he died, leaving behind three daughters, an ex-wife and a second wife. His family, who lived for nearly 20 years in Westfield, wanted him to be more than a statistic, so they sued the tobacco companies. That was in 1984.
Last month, U.S. District Judge Jose Linares in Newark signed papers settling the case, ending what almost certainly was the nation’s longest-running individual smoking liability lawsuit. The settlement also enabled Rossi’s family to celebrate the rarest of occasions in such cases — a payout from a tobacco company .
The terms with the Liggett Group Inc., the only defendant remaining after three other cigarette makers were removed , remain sealed. Both sides declined to discuss the settlement. The only judgment ever to be paid to a plaintiff in such a case was slightly more than $1 million in a 1996 jury trial.
Rossi’s oldest daughter, who brought the claim as the administrator of his estate, says she was both stunned and relieved by the outcome. “It feels like a huge victory,” said Susan Haines.
Victory, however, can be a loosely defined term in the court system, and even more so in tobacco cases. In staving off a decision for two decades, the defendants in Haines vs. Liggett et. al. succeeded in whittling the claim down to just one defendant, and pushed Haines’ first attorney off the case and to the brink of bankruptcy.
Haines vs. Liggett was one of seven lawsuits filed in the early 1980s as companion cases to one by survivors of Rose Cipollone, the New Jersey smoker whose family won the first ever liability verdict against a cigarette manufacturer. Like the others, Cipollone’s case eventually crumbled in the face of endless appeals that have become the hallmark of tobacco lawsuits. But Haines endured.
Filed in Newark in February 1984, it passed through the hands of four district judges, three magistrate judges and dozens of attorneys. The lawsuit resulted in several historic rulings and helped trigger the release of thousands of internal tobacco company documents, which have since helped plaintiffs in other cases. “Everyone remembers the Cipollone case,” said Marc Edell, a Morristown lawyer who represented both families but who withdrew from the Haines case more than a decade ago. “Haines was just as important.”
“The truth is that it probably took up most of my professional life. When we first got involved, people said we were crazy, like Don Quixote,” Edell said. Peter Rossi began smoking as a teenager, in 1942 or 43. Like many of his generation, he started with Liggett’s Chesterfields, a popular wartime brand, according to documents filed in the case. He smoked during his 18-month stateside stint for the U.S. Navy and during his years as a student at Alfred University in upstate New York and the University of Georgia.
He kept on smoking after his marriage, the birth of his daughters and during his steady climb up the corporate ladder as a salesman and executive for the makers of Schrafft Ice Cream and later at American Food Labs.
He switched brands, from Chesterfields to Kents, then True Blue and Vantage, and finally Merit — but smoking was as much a part of his life as breathing. “To him, it was as natural as filling (a) coffee cup,” his friend, Thomas T. Barbera, said in a deposition. All the while, his daughters said, Rossi was terrified of cancer. Pam Rossi recalled the day her father visited a friend who was hospitalized with lung cancer and was so shaken that he vomited. He quit for a few days, she said, then went back to lighting up. “He tried and he tried and for some reason he wasn’t able to do it,” she said.
Mercifully, Rossi’s daughters said, his death came quickly. In April 1982, he checked himself into a hospital complaining of recurring neck pain. He was diagnosed with lung cancer on his birthday, May 15, and died 13 days later. Haines, a Haddonfield resident and a paralegal at a Philadelphia law firm, had been working closely with Edell’s law firm on a series of asbestos liability cases. A historic ruling at the time made asbestos companies liable for asbestos-related illnesses that occurred even before they understood harmful effects of their products.
Armed with that opinion, Edell’s firm began seeking smokers for similar claims against tobacco companies. After consulting with her family, Haines volunteered. She was driven by the memory of her father. “There was just no way to describe the impact of seeing my father deteriorate in weeks,” she said.
Besides Liggett, her lawsuit named R.J. Reynolds, Philip Morris and the parent company of Lorillard — the manufacturers of other brands that Rossi smoked during his life — as well as the Tobacco Institute, the now-defunct research arm of the cigarette makers.
The suit claimed Rossi’s death was the result of a defective product and that the companies failed to produce a safer product or adequately warn consumers about the dangers of smoking. It sought $358,000 in lost income for Rossi, $10,000 for his medical and funeral costs and punitive damages.
Haines said her lawyers warned her that the defendants would use all legal means to delay or stifle any resolution. They told her it could get personal. Investigators for the tobacco companies asked her family’s neighbors if they had ever seen Rossi fighting with his wife, she said. During her own deposition, Haines said, a defense attorney asked if her father ever hit her. She told them he didn’t. “They wanted real dirt,” she said. Lawyers for the defendant declined to be interviewed about the case.
The tobacco companies also made clear that the war would not be decided in a single battle. After a Newark jury ordered Liggett to pay $400,000 to Cipollone’s family in 1988, the tobacco companies appealed.
An appellate court tossed out the Cipollone verdict, but the U.S. Supreme Court ordered a new trial in 1992. The ruling was viewed as a partial victory for the family, but Cipollone’s family withdrew the suit soon after, citing the exorbitant costs. Anti-tobacco forces would later cite a memo written by an R.J. Reynolds lawyer as proof of the cigarette companies’ strategy of attrition.
“To paraphrase General Patton,” the memo said, “the way we won these was not by spending all of Reynolds money, but by making that other son of a bitch spend all of his.” Meanwhile, Haines’ case was enduring its own upheaval.
In a scathing pretrial ruling, U.S. District Judge H. Lee Sarokin, sitting in Newark, denounced the tobacco industry as the “king of concealment and disinformation” and ordered the defendants to turn over internal research documents. A higher court overturned Sarokin’s order and removed him from the case. But, said Richard Daynard, the director of the Tobacco Products Liability Project, an anti-smoking research group at Northeastern University Law School, “the decision was very important, because it said to the attorneys, ‘There’s fire behind the smoke.'”
Not long after, Edell dropped his own bombshell. At the insistence of his partners at the Short Hills firm of Budd, Larner, Gross, Rosenbaum, Greenberg & Sade, he asked the new trial judge if he could withdraw as plaintiff’s counsel. Edell said the tobacco suits had already cost the firm more than $5 million in manpower and expenses.
Haines knew her case was an albatross, but she didn’t want to walk away. She said it was a living memorial to her father. “As long as the suit was going on, people were talking about him,” she said. “In a way, it was like keeping him alive.”
As stunning as Edell’s request was U.S. District Judge Alfred Lechner’s reply: He forbade the firm from withdrawing, finding that it had a legal responsibility to finish what it started with Haines. Ultimately, Edell persuaded the South Carolina firm of Ness Motley, which had been pursuing other tobacco liability claims, to take over Haines.
With the case back on track, Lechner issued an edict to the attorneys. “I’d like to see if we can move this case,” he told them in October 1994. “It’s completed one decade. It’s not going to complete a second before it gets tried.” He almost proved wrong. In 1996, Lechner, who has since retired, handed the case off to another judge in Newark. Two years later that judge, U.S. District Judge Joseph Greenaway, narrowed the claim when he threw out seven of the counts against the tobacco companies. Then the case fell off the radar.
Rossi’s family rarely talked about it. His daughter Pam moved to Montana, another daughter Winnie was married with children in Long Island. His first wife moved to Edison and his second to Pennsylvania.
Ness Motley changed attorneys on the case and, in late 2002, the lawsuit was passed again to Linares, who had just joined the bench in Newark. Haines credits him with reviving and resolving the case. “Linares moved it,” she said. “It was the judge.” Early last year, both Philip Morris and R.J. Reynolds were dropped as defendants. In the fall, the parent company of Lorillard was also dismissed.
According to Haines, each was released because her father smoked their cigarettes after the companies began including warning labels on their products. She says she decided the case would be “cleaner” and have a better chance at success if her lawyers targeted only Liggett, whose Chesterfields didn’t carry such warnings when Rossi began smoking, she said.
Alan Naar and Julie Fischer, attorneys for Liggett, declined to comment.
In pretrial motions, the company stipulated that nicotine is addictive and that smoking can cause lung cancer and cardiovascular disease. But a jury would have to decide whether it caused Rossi’s death. The judge told the parties to prepare for a spring 2004 trial. Haines and her sisters began arranging their schedules, making sure someone could attend each day.
The surprise ending came in December, during a status conference at the courthouse in Newark. For hours, Haines said, the attorneys huddled separately with the judge, who acted as a mediator. Haines was stunned when they told her they had reached an agreement to resolve the case. As she walked from the courthouse, she called her mother, her sisters, even her father’s 86-year-old sister in Utah.
“She said, ‘I thought that case had been dropped 15 years ago,'” Haines recalled. She spoke as she sat earlier this month in the lobby concourse of the Philadelphia office building where she works. Like most buildings, it is smoke-free, something unheard of when the case began two decades ago. “There’s been a whole change of consciousness,” Haines said. “If my father had a small part to play in contributing to that, that’s a good thing.” John P. Martin covers federal courts and law enforcement. He may be reached at 973-622-3405 or at firstname.lastname@example.org.”