Tobacco Legal War Shifts to Brooklyn

Monday, November 27th 2000, 12:00 am

By: News On 6

NEW YORK (AP) â€” A lawsuit filed with little fanfare three years ago in Brooklyn has emerged as the lastest flashpoint in the high-stakes legal battle between the tobacco industry and opponents who claim it conspired to conceal the dangers of smoking.

On Monday, attorneys will converge in a Brooklyn courtroom to begin picking jurors for a two-month trial pitting a trust fund for sick asbestos workers against R.J. Reynolds, Brown & Williamson and other tobacco giants.

Attorneys for the plaintiffs say damages could exceed $3 billion.

The trial is the first out of a backlog of about a dozen tobacco claims in federal court in Brooklyn, some filed under civil provisions of the Racketeer Influenced and Corrupt Organizations Act. Unlike class-action suits filed by consumers, most of the Brooklyn cases were brought by third parties, including health insurance groups who want Big Tobacco to share the cost of treating patients with cigarette-related illnesses.

In this particular case, the plaintiff is a trust made up of blue-collar workers and their heirs. It was formed in 1988 after the nation's largest asbestos maker, Johns-Manville Corp., went bankrupt amid an avalanche of suits brought by plaintiffs suffering from lung cancer and other ailments linked to asbestos.

The trustees, much like the plaintiffs in the record $145 billion verdict won by Florida smokers, accuse the tobacco industry of putting profit before public health. They allege cigarette companies are liable because they concealed medical evidence that ``smoking, an activity indisputably dangerous to human health in and of itself, is even more lethal to individuals occupationally exposed to asbestos.''

The trust represents hundreds of thousands of people who were exposed to asbestos, said Peter Bicks, a Manhattan attorney for the trustees. ``The trust does not have enough money to satisfy their claims.''

A jury could hear opening arguments as early as Dec. 4. Among the witnesses expected to testify is Lorillard Tobacco Co. chief executive officer Martin Orlowsky.

The plaintiffs' evidence includes internal documents they say show that the defendents have known since the 1960s that smoking and asbestos exposure form a ``lethal synergy.''

David Bernick, a Chicago attorney representing Brown & Williamson, said the defense will try to convince jurors that unlike asbestos makers, the tobacco companies never conspired to hide health risks from workers. He characterized the suit as an ``unjust and unfair'' bid by the trust ``to put more money in the till.''

All of the Brooklyn tobacco cases have been assigned to U.S. District Judge Jack B. Weinstein, a liberal jurist with a reputation for fostering innovative mass-tort litigation. In a flurry of rulings in recent months, Weinstein sought to steer lawyers toward negotiating a nationwide settlement of all tobacco cases.

Weinstein's record includes devising far-reaching settlements for asbestos and Agent Orange litigation. ``The time for bringing a close to tobacco litigation is nigh,'' he wrote in one recent order.

But defense attorneys so far have resisted Weinstein's prodding. They say they are certain that even if they lose in his courtroom, they would win on appeal.

``We don't think there's a legal basis for these claims, so we have no reason to settle,'' Bernick said. The tobacco industry also believes that settlements ``only tend to breed more litigation,'' the lawyer added.