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Bethel jury unable to reach verdict in suit against Philip Morris by smoker's family

  • Author: Lisa Demer
  • Updated: November 15, 2016
  • Published November 14, 2016

BETHEL – A Bethel Superior Court jury considering whether tobacco giant Philip Morris USA's misrepresentations about the dangers of smoking played a role in the lung cancer death of a Yukon-Kuskokwim Delta man announced on Monday that it was hopelessly hung.

The Superior Court jury couldn't reach a decision after two days of deliberations, and Superior Court Judge Eric Smith declared a mistrial, said Don Bauermeister of Bremerton, Washington, the lead lawyer in the case against Philip Morris. He gets a week to evaluate whether to bring the case to trial for the third time.

The jury foreman, Robert Sundown, said afterward that jurors unanimously agreed that Philip Morris had misrepresented the risks of smoking but split 8-4 on whether Benjamin Francis relied on that bad information in smoking Marlboro Lights.

Francis died of lung cancer in 2004 at age 52. He was from Pilot Station, became a smoker as a youth in St. Marys, then lived as an adult in Marshall. His life partner, Dolores Hunter, brought the suit on behalf of his estate. They had a son together and Francis also has an older son.

"Did he believe there was a health benefit to smoking light cigarettes? That was the question the jury got hung up on," Sundown said.

Francis was a musher and a fisherman, a hunter and fiddle player. He also was a lifelong smoker, switching brands early on but eventually settling on Marlboro Lights when he could get them.

The trial began almost a month ago. Jurors heard testimony on the psychology of addiction and the economics of a subsistence life, about surgeon general reports and tobacco company tactics.

They learned how public knowledge gradually changed as studies confirmed that smoking causes cancer and that nicotine is highly addictive. They learned that by the 1950s evidence was starting to come out about the dangers. Then the tobacco companies met together in a New York hotel in 1953 and made a pact to cast doubt on that evidence.

The jury included three smokers and nine non-smokers, including some who used to smoke.

One of the three smokers quit two weeks into the trial, said Sundown, who has never been a smoker. He said that was one of the more remarkable developments during the month in court.

The critical evidence came from Hunter, the life partner of Francis, the jury foreman said. During cross-examination by one of the Philip Morris attorneys, she was asked whether Francis believed there was a health benefit to smoking light cigarettes.

Hunter answered that she didn't know. Later, her attorney asked about that and she altered her testimony to say Francis was influenced by it.

Eight jurors said that was key for them. The other four jurors – including Sundown – didn't see that as the most critical piece of information, he said. Why else would Francis smoke lights other than because of a perceived health benefit, Sundown said. Jurors went through the evidence with care and all spoke their minds, he said.

The public health community now says that light cigarettes are no safer than regular cigarettes. Even though they are made with less cancer-causing tar, people tend to smoke more of them in order to get the nicotine they crave, studies have found.

Cigarette makers are banned from labeling cigarettes as light or low tar, though Marlboro Lights are still sold in the gold and white box – just without the "light" label. Much of the case against Philip Morris was over the marketing and packaging of lights, despite evidence they were no better.

A Philip Morris scientist, Peter Lipowicz, testified that he still believes they are safer though officially, the company doesn't contest the latest public health findings.

Hunter sued Philip Morris in 2006 on behalf of his estate. The trial was a redo from one in 2011 in which the jury found that Philip Morris was deceptive about the risks of smoking but also found that Francis had not been exposed to the company's misleading statements. Hunter appealed and the Alaska Supreme Court eventually found that the verdict went against the weight of the evidence.

Smith, a retired judge from Palmer, was appointed to hear the case and presided over the earlier trial as well.

Tobacco lawsuits around the country have come in waves. Tobacco makers won the first round of cases, in the 1950s, and almost all of the cases in the next round, in the 1980s and into the early 1990s, said Joelle Lester, an attorney with the Tobacco Control Legal Consortium, part of the Public Health Law Center at the Mitchell Hamline School of Law in Minnesota. The consortium provides technical help to communities and advocates.

But after state attorneys general sued and succeeded in securing big financial settlements, tobacco companies were forced to release extensive files. With documents showing that executives knew and hid the risks, plaintiffs began winning some of the cases, Lester said Monday.

Bauermeister said he didn't yet know whether the case would be tried a third time. Cases like this usually are handled on a contingency, with law firms covering costs and paid a portion of any winnings.

 

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