BETHEL – A dozen years after a Yukon-Kuskokwim Delta man died of lung cancer, the question of whether tobacco company misrepresentations contributed to his death is playing out once again in Bethel Superior Court.
The civil case alleging fraud by Philip Morris was brought in 2006 by the family of Benjamin Francis, a Yup'ik man from St. Marys who spent his adult years in the Yukon River village of Marshall. The case is a redo of a 2011 trial in which jurors sided with Philip Morris. But the Alaska Supreme Court agreed with Francis' common-law wife, Dolores Hunter, that the verdict went against the weight of the evidence. The court agreed to give the family another chance.
After two and a half weeks of testimony, closing arguments are set for Tuesday. The case will go to jurors after that.
The claims are like many around the country in which the families of those who die from smoking-related disease try to put some of the blame on the tobacco industry, which for decades downplayed the harm of smoking.
But this one has elements rooted in Yup'ik culture. How do you measure the value of a life of a man who was a skilled subsistence hunter and fisherman, but who never earned much cash? Is a sense of personal responsibility stronger in a place where the consequence of a bad choice in extreme weather can be death?
Jurors heard testimony from experts in addiction, disease caused by smoking and economic loss. Francis' friends and family testified. So did Philip Morris' chief scientist.
They learned that Francis' parents were smokers who died of heart disease, that he started sneaking cigarettes as a young boy and that he eventually favored what was known as Marlboro Lights — a marketing label banned by the U.S. Food and Drug Administration in 2010 as misleading.
The lawyers for Hunter and the estate are trying to convince jurors that Philip Morris, along with other tobacco-makers, conspired for 50 years to lie about the hazards of cigarettes, even that smoking causes cancer. They say the tobacco-maker plotted to confuse the public and targeted kids — even in Yup'ik villages — to ensure a supply of new smokers.
For years, tobacco-makers promoted increasingly popular light cigarettes in a campaign that the National Cancer Institute suggested amounted to a cruel deception, since smokers in need of nicotine may just have smoked more, according to a 2001 government tobacco paper, Monograph 13, presented in the case.
If Hunter and the estate of Francis win, it will be a first for Alaska. Lawyers say that a jury hasn't handed down a verdict against a tobacco company here. The state of Alaska, however, was awarded $250 million as its share of a massive, multistate settlement in 1998 of lawsuits asserting that damage from cigarettes were contributing to public health costs, and the tobacco industry should pay. The industry also had to change its marketing.
A courtroom on the second floor of the Nora Guinn Justice Complex in the heart of Bethel has been taken over by the case. Philip Morris sent a half dozen lawyers to Bethel plus other legal assistants who are in and out of the courtroom, taking notes, watching jurors and providing instant feedback.
Boxes of legal papers — and some snacks — line the benches.
Two lawyers and an assistant are working on the case for Hunter and the Francis estate.
"It's fair to say that until you got sued … you weren't telling people that cigarettes cause cancer. You weren't telling people that cigarettes were addictive," Roger Davidheiser, one of the lawyers for Hunter, said in questioning Philip Morris' science expert last week. The lawyer was referring to changes made after the 1998 settlement with states. "You weren't telling them any of those things, correct?"
While cigarette packages have long carried a surgeon general's warning and public health messages have been plentiful, Philip Morris didn't change its stance as a company until 2000, Peter Lipowicz, the tobacco-maker's senior principal scientist, told the jury.
"That was just four years before Mr. Francis died," Davidheiser said.
As to the now-banned "light" label, Philip Morris' studies found lower tar cigarettes do lessen the risk of disease from smoking, though the company is not publicly challenging the public health conclusion otherwise, Lipowicz said.
After each witness, jurors got to submit written questions that were then read by visiting Judge Eric Smith, as is common in Alaska civil cases.
Lipowicz testified that Philip Morris has been trying for 60 years to create a safer cigarette, but also that "there was no such thing as a safe cigarette," one juror noted. Does that mean the science is mediocre?
Cigarettes can be made safer, with less tar, but smoking is not safe, Lipowicz said.
Why did Philip Morris take so long to warn of the dangers? another juror asked. Cigarette packages have warned since 1966 that smoking is hazardous and more recently that they cause cancer, Lipowicz said.
On Monday, Shoba Sreenivasan, a psychologist with expertise in treating addiction, testified for Philip Morris that Francis had the capability to quit smoking, but wasn't motivated. She had read Francis' journals, education records and medical reports and told jurors that he was a smart, well-spoken man who understood the risks of smoking.
She also had studied Yup'ik culture including reading the Ann Fienup-Riordan book "Wise Words of the Yup'ik People."
The culture, she told the largely Alaska Native jury, puts a strong emphasis on self-determination and personal responsibility.
Earlier in the trial, a forensic economist from Anchorage testified for Hunter about the economic loss from Francis' death.
The calculation, only a part of the real value of a life, reflects what it cost the family and the village without Francis there to help, economist Francis Gallela told the jury.
The value? Just over $1 million, most of that in the value of the subsistence catch — salmon and pike, moose and geese — that he would have brought in over the next 20-plus years if he hadn't died at age 52, Gallela said. His Permanent Fund dividends, the value of other chores and some money from jobs also factored in.
Hunter was able to estimate how much Francis brought home a year, much of which was shared with others, Gallela said. In all, Francis contributed about 4,600 pounds of meat a year including almost 1,600 pounds of wild salmon and almost 900 pounds of moose, plus eel, pike and more.
"Does 200 pike seem like a lot of pike to you?" Stan Davis, the lead Philip Morris attorney, asked Gallela.
Time to move on?
Fish and Game subsistence surveys for Marshall show much lower numbers than what Hunter reported Francis catching, Davis said.
That's because some households don't hunt and some hunters provide for many families, Gallela said.
Jurors knew this topic well. Why did the economist use Anchorage figures for how much it would cost to buy the subsistence catch, and not how much the food cost in Marshall? one asked during the jury question round.
Hunter had moved to Anchorage, and that was a lower, more conservative figure, Gallela explained.
Was he figuring the weight of the food once it was dried or the raw weight?
Raw, he said.
Did he account for moose moratoriums and king salmon closures?
Residents target other species during closures, he said.
And then there was this.
"A person moves on after the death of a loved one. Why did you continue with the losses up to date, 12 years?" one juror wondered. Wouldn't the figures be different if the economist figured that a family moved on after a year, five years, 10 years?
Dolores Hunter isn't living the life she thought she would, Gallela answered.
It was taken from her, he said, by Francis' premature death.
Both sides have presented their cases.
Smith and the lead lawyers on both sides were part of the earlier trial won by Philip Morris. The Alaska Supreme Court last year ruled that the jury went against the evidence back in 2011 when it found that Francis had not heard Philip Morris' misleading message.