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VOL. 114 | NO. 77 | Thursday, April 20, 2000

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Tobacco Co's Ask For Suit Dismissal Tobacco companies ask for lawsuit dismissal Philip Morris and R.J. Reynolds asked a San Francisco judge on Monday to throw out a jury's $21.7 million damage award to a dying ex-smoker, arguing that the smoker should have paid attention to the warning labels on cigarette packages. ``Despite the fact that (Leslie) Whiteley had an opportunity to view these warnings ... hundreds of thousands of times over the course of her smoking history ... she either ignored them or decided that she could disbelieve them,'' the nation's two largest tobacco companies said in court papers. The companies said the only cause of her lung cancer that could be recognized under the law was ``her failure to observe those warnings, and not any design defect in (the companies') products.'' The companies asked Superior Court Judge John Munter to overturn last month's verdict and dismiss the suit. A hearing is scheduled May 19. The verdict was the first in the nation to find in favor of a smoker who took up the habit after surgeon general's warnings started appearing on cigarette packs in the 1966. Whiteley started smoking in 1972, at age 13, and testified she thought smoking was safe because companies promoted it and the government allowed it. Doctors expect Whiteley, 40, of Ojai in Ventura County, to die of lung cancer this year. After reviewing internal industry documents, jurors found that the companies designed cigarettes negligently, then made false or misleading statements to the public and concealed the dangers of smoking. The jury awarded $1.7 million in compensation to Whiteley and her husband, and $20 million more in punitive damages. Monday's court filing argued that the entire verdict was unjustified. Philip Morris' Marlboros and Reynolds' Camels, the brands Whiteley smoked, couldn't have been negligently designed because they were legal products whose dangers were well known, said H. Joseph Escher, a lawyer representing both companies. He also said there was no evidence that Whiteley would have smoked a safer cigarette if one had been available. ``A manufacturer should not be found liable for supplying a product that the ordinary consumer recognizes as having inherently dangerous qualities but chooses to use anyway,'' Escher said. He also argued the fraud verdict was unfounded because there was no evidence that Whiteley heard or relied on a false statement by either company in her decision to smoke. ``There was absolutely no evidence that (the two companies) ever claimed that smoking was safe, or that it did not involve serious health risks, much less that Ms. Whiteley ever became aware of such statements,'' Escher said.

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