Court overturns $21 million award to dead smoker

SAN FRANCISCO -- A state appeals court on Wednesday overturned a $21.7 million judgment awarded to a California woman who sued the tobacco companies before dying of lung cancer.

The 1st District Court of Appeal said a San Francisco County jury, when deliberating damages for Leslie Whiteley, should have been instructed by the judge that the tobacco industry was immune from liability from 1988 to 1998. In 1998, the legislature removed tobacco from a shielded class of products immune from lawsuits.

Two years ago, the California Supreme Court ruled that tobacco companies could be liable for harm they cause to smokers before and after the 10-year period, but not during.

"All parties are entitled to have their cases decided by juries that have received correct instructions about the applicable law," said William S. Ohlemeyer, a vice president for Philip Morris USA, which was named in the lawsuit.

Whiteley died shortly after the verdict in 2000 at age 40. She began smoking in 1972, using her school lunch money to buy her first pack of cigarettes.

She told the court she thought smoking was safe because companies promoted it and the government allowed it.

A jury found Philip Morris and R.J. Reynolds Tobacco Co. negligent in their cigarette design and responsible for false and misleading statements and efforts to conceal the dangers of smoking. The companies appealed.

The case was the first the tobacco industry had lost to a smoker who took up the habit after tobacco companies began labeling cigarette packs with a government-required warning.

Tobacco companies had argued that Whiteley was to blame for her disease because she ignored the labels.

Whiteley's attorney, Ted Pelletier, said the ruling "validates Mrs. Whiteley's fraud claim" except for the 10-year immunity period.

The three-judge panel, while overturning the verdict, said the tobacco companies fraudulently induced the woman to smoke by publicly disagreeing with the government warnings on the cigarette packs.

The trial is likely to go before another jury, and any award would go to the woman's surviving husband, Leonard.