Lawsuit by Family of Marlboro Man Clears Legal Hurdle

(The News & Observer a.k.a. Nando Times)

Marlboro pitchman David McLean

A lawsuit filed by family members of the Marlboro Man, who died of lung cancer after years of smoking, has cleared a legal hurdle and moved one step closer to trial, attorneys said Friday.

U.S. District Judge David Folsom, in a ruling in Texarkana dated Aug. 14 but disclosed publicly this week, declined to throw out a lawsuit filed by the widow and son of Marlboro pitchman David McLean.

The suit names several companies, including tobacco giant Philip Morris, maker of the popular Marlboro brand.

The suit, which Folsom sent to the U.S. Fifth Circuit Court of Appeals for review, claims the companies conspired to conceal the addictive nature of nicotine.

If McLean's family is successful at the appeals court, a trial could begin next year, attorneys said.

Michael York, a lawyer for Philip Morris, dismissed claims that smokers were unaware of the dangers of tobacco prior to government warnings and predicted the case would be dismissed before trial based on Texas law.

"There have been cases against cigarette manufacturers literally nonstop every day for 45 years," said York. "People have been aware of the risks for many, many years."

McLean was sometimes required to smoke up to five packs of Marlboros for a single commercial, his family claims. A Texas native, McLean played a rugged cowboy in Marlboro ads beginning in the 1960s. McLean developed emphysema in the 1980s and died of lung cancer in 1995 at age 73, according to widow Lilo McLean.

He began smoking in the late 1930s, well before the U.S. surgeon general warned of the dangers of cigarette smoking, according to the plaintiffs' attorneys.

McLean "tried to quit a number of times. He thought he was just weak, but it turns out he was really hooked," said Don Howarth, one of the attorneys representing McLean's family.

"We now know they have documents that say nicotine is the vehicle that hooks them. If it hooks them, we've got a customer for life."

If Folsom's ruling is ultimately upheld, it will be of particular importance to people who began smoking before the warnings came out, Howarth said.

"We took the position that they knew about addiction and weren't telling the public way back then . . . and therefore it wasn't fair to preclude older people who started smoking before," Howarth said. "Judge Folsom agreed with that."

Tobacco Wars

(Los Angeles Daily Journal)

A Los Angeles firm that has been involved in a series of lawsuits challenging the tobacco industry now finds itself as lead counsel in what is probably the most visible case yet filed.

Howarth & Smith filed a complaint three weeks ago in federal court in Texas on behalf of the widow and son of David McLean, a.k.a. the Marlboro Man. The lawsuit alleges that McLean, a Beverly Hills resident who died of lung cancer after smoking as much as five packs a day, died because he was addicted to nicotine.

Suzelle M. Smith, a name partner in Howarth & Smith, said the Marlboro Man case will have repercussions in other tobacco litigation around the country. McLean's widow "feels David was really part of the effort to sell addictive and deadly products," Smith said. "And she feels she wants to pay back part of the debt."

Howarth & Smith is also part of a lawsuit filed in July in Orange County Superior Court that alleges the industry sold an addictive drug. This case is the California version of a federal class action filed on behalf of every addicted smoker in the country, an action that was tossed out by appeals panel in new Orleans that determined it was too large to manage.

Working with Howarth & Smith in the Orange County litigation are attorneys with Dougherty & Hildre of San Diego; Robinson, Phillips & Calcagnie of Laguna Niguel; and Casey, Gerry, Reed & Schenk of San Diego.

Why Philip Morris Hates Trial Lawyers

By John Stauber and Sheldon Rampton
(PR Watch)

On September 19, 1996, the widow of the original Marlboro Man filed a lawsuit in Texas charging that her husband died from using the product that made him a household word.

David McLean was hired in the early 1960s to portray the "Marlboro Man" in television and print ads. He was obligated to smoke Marlboros as he posed for television and print ads, smoking up to five packs per take in order to get the right look. Afterwards, Philip Morris continued to send him gift boxes of cigarettes.

In 1985, McLean developed emphysema, followed by lung cancer in 1993. Following unsuccessful attempts at chemotherapy and other treatments, he died on October 12, 1995. McLean's death actually made him the second Marlboro Man to die of lung cancer. Another actor, Wayne McLaren, died in 1992 at the age of 51.

"Even the 'Marlboro Man' was not immune from the effects of cigarette smoking," said Don Howarth of the Howarth & Smith law firm, which is representing McLean's widow in the lawsuit against Philip Morris. "Mr. McLean's widow and son hope by this action to strike a blow for the countless others whose lives have been ravaged through the tobacco industry's aggressive campaign of fraud and deceit."

Many people have sued the tobacco industry before, of course, and to date they have not collected a dollar in damages. During the second quarter of 1996, in fact, company profits were up 18% over the same quarter in 1995, making the first half of the year a "blockbuster" according to PM CEO Geoffrey Bible.

In order to maintain its profitability in a hostile environment, Philip Morris spends staggering sums on lobbying and public relations. According to an internal State Affairs Company (SAC) report from 1995, PM "contributed $50 million to tax-exempt organizations through the nation during 1992 and is the largest contributor to the arts.... PM also sponsored the 54th annual Convention of the National Newspapers Publishers Association" and "helps fund The American Civil Liberties Union--they gave $100,000 in 1991 and 1992."

Among groups that reported political lobbying in the first half of 1996, Philip Morris led the pack at $11.3 million, almost six times the amount reported by its arch-nemesis, the Association of Trial Lawyers of America. Consumers organizations and membership-funded citizen groups spent almost nothing by comparison. With the exception of the Christian Coalition, which spent $5.9 million, virtually every big-spending lobbyist represented a corporation or wealthy financial interest--the AMA, the U.S. Chamber of Commerce, General Motors, General Electric, the Chemical Manufacturers' Association and AT&T. By comparison, the nation's largest membership organization, the American Association of Retired Persons, spent only $3 million.

The "California Thing"

"An interesting insight into Philip Morris's efforts comes from Victor Crawford, a former . . . lobbyist for the Tobacco Institute," observes an internal report by the State Affairs Company.

Crawford became an outspoken enemy of the tobacco lobby after developing lung cancer which led to his death earlier this year. The SAC report quotes him as saying, "If you ever want to see a bunch of cowboys work, watch Philip Morris. They are tough. I mean they shoot from the hip. It was Philip Morris who did the California thing [Proposition 188] after they were advised not to. That California thing was dumb, because they had their name attached to it. They should have never done that ... and they're getting bolder. It's a take-no-prisoners fight. You're talking about $100 billion a year in gross profits ... And man, anything goes. And anything will go."

The "California thing" was PM's outrageous attempt, organized through two PR firms, the Dolphin Group and Burson-Marsteller, to sucker California voters into passing a pro-tobacco initiative disguised as a smoking restrictions law. "Specifically, Proposition 188 would have overturned about 300 local smoking ordinances," observed the SAC report. "Besides spending about $15 million dollars in lobbying and expenditures in a failed effort to pass 188, PM "was responsible for the $968,710 in independent expenditures contributed by the National Smokers Alliance."

The National Smokers Alliance is PM's version of "grassroots lobbying"--the rapidly growing practice of using advertising, fax machines, mail and telephone banks to create phony "grassroots" front groups in order to stir up public support for its corporate objectives.

SAC operates much of the National Smokers Alliance account, which PM founded with an initial contribution of $7 million dollars to Burson-Marsteller. NAS's current budget exceeds $10 million annually, primarily from Philip Morris.

In July, SAC led a PM-funded effort by the National Smokers Alliance in Virginia attacking the Motorola corporation's smoking policy, which they depicted as "the most mean-spirited and punitive ... of any we have yet encountered in this country." Thomas Humber, a Burson-Marsteller executive who is the nominal head of the National Smokers Alliance, wrote to SAC's David McCloud: "Enclosed is a check for $5,000 for the Motorola effort.... You are great Americans, and you understand raising hell and having fun."