Smokers Win Ruling to Bring Class-Action Suit; Millions get approval to join complaint seeking damages for health problems.

By Myron Levin
(Los Angeles Times)

A federal judge on Friday granted class certification to tens of millions of smokers in a lawsuit against cigarette makers, creating what may be the largest class action ever certified in U.S. legal history.

A national consortium of plaintiff lawyers won the key ruling when U.S. District Judge Okla Jones II in New Orleans cleared them to proceed on behalf of smokers in the United States and its territories who allegedly became addicted to nicotine.

The long-awaited ruling did not endorse the suit's central contention: that cigarette makers have long known their products are addictive but have concealed that information and manipulated nicotine levels to keep smokers hooked.

But by granting class certification to a vast number of current and former smokers--even those who have not been diagnosed with smoking-related ailments--the ruling raises the prospect of monumental damages should the plaintiffs ultimately prevail.

The decision makes the lawsuit "the largest class action ever certified in the history of the law," said Don Howarth of the Los Angeles law firm of Howarth & Smith, one of the plaintiff firms allied in the case.

"We're delighted," Howarth said. "This is absolutely 95% of what we wanted. It gives us the right to take on, in one action, the tobacco industry."

Industry officials voiced disappointment with the ruling and said they will appeal.

The two-year-old lawsuit is known as the Castano case, after Dianne A. Castano, one of four named plaintiffs and the widow of Peter Castano, a New Orleans lawyer who died of lung cancer that allegedly was caused by smoking.

Defendants include the Tobacco Institute and the seven biggest U.S. tobacco companies, who maintain that smoking is not addictive and those who want to quit can do so.

Industry lawyers had adamantly opposed class certification, contending, among other things, that the sheer number of potential claimants would make the case unmanageable.

"The court's decision to allow Castano to go forward as a class action, in our opinion, is inconsistent with class certification guidelines," R.J. Reynolds Tobacco said in a statement.

"If this case proceeds and is not reversed on appeal, it will prove to be an unwieldy burden on the court system."

Philip Morris Cos. said it also will appeal, but noted that Jones resolved some issues in the industry's favor--including rejecting an industry-paid fund to monitor smokers' health and fund their medical care.

And Philip Morris said that even if the industry is found liable, smokers will still have to prove damages on an individual basis.

On Wall Street, Philip Morris stock dipped $1.50 to $60.25, while RJR Nabisco, parent of R.J. Reynolds, fell 6.3 cents to $5.625. American Brands, parent of American Tobacco Co., dipped 12.5 cents to $37.50, while Loews Corp., owner of Lorillard Tobacco, was unchanged at $97.50.

Since the 1950s, cigarette makers have repulsed scores of lawsuits, preserving their record of never paying a nickel in settlements or judgments to those claiming injuries from smoking.

Juries generally have agreed that smokers accepted the risk, and armies of defense lawyers have vastly outmanned and outspent their opponents.

To overcome these obstacles, plaintiff attorneys have seized on the addiction argument and sought to even the odds through class-action claims.

A Florida law firm currently has two class actions pending in Florida state court: one claiming injuries to flight attendants from second-hand smoke, and the other on behalf of injured smokers generally.

However, the New Orleans case involves a powerhouse alliance of about 60 law firms, each committed to spending $100,000.

In his 34-page ruling, Jones said the class of "nicotine-dependent" smokers will include all smokers medically diagnosed as nicotine-dependent, as well as smokers who have been warned by their doctors that smoking is dangerous but who have not quit.

Invoking the Robert Frost poem, "The Road Not Taken," Jones acknowledged he was embarking "on a road certainly less traveled, if ever taken at all."

"This will be a daunting task with long, difficult days ahead," the judge said. "However, the court believes the resolution of these issues now will alleviate the constant need for duplicative resolution of these issues later in hundreds of courtrooms around the nation, a task unparalleled in scope."

Ailing Ex-Worker’s Suit Blames San Onofre

(San Diego Union Tribune)

For more than two years, workers at the San Onofre Nuclear Power Plant carried dangerous radioactive particles outside the plant on their shoe heels, their clothes and on their cars, a federal jury was told yesterday.

The microscopic but highly charged particles, called nuclear fuel fleas, were not detected by the plant’s exit-monitoring equipment or by badges that monitored the radiation level of employees, according to Los Angeles lawyer Suzelle Smith.

Smith contends that her client contracted a rare and deadly form of leukemia as a result of working at San Onofre.

The particles also posed a danger to the public, Smith contended yesterday in her opening statement in the case in San Diego’s federal court.

Smith is seeking millions in damages for Rung C. Tang of Pasadena, a former Nuclear Regulatory Commission inspector who worked at San Onofre in 1985 and 1986. Her lawyers had asked for at least $15 million during unsuccessful settlement meetings.

Attorney Smith told the jury yesterday that in early 1985 the company knowingly continued to operate its reactors with 105 leaking fuel rods. She said company officials also knew that personal monitoring badges were not detecting radiation caused by fuel fleas.

"If a flea jumped up and hit the badge it would register," Smith told the jury. People in charge of health and safety didn’t know that the fleas had spread throughout the plant. The fuel fleas infected the laundry so that employees were being given contaminated protective clothing."

At the same time, she said, Tang was being told that "she had less radiation exposure at San Onofre that she would have gotten in the sunlight on the courthouse steps."

Before her bone-marrow transplant last month, Tang, 44, had a life expectancy of six months, Smith said. If she survives the transplant, she will have a 50-50 chance of living five more years, the lawyer added.

Tang has been diagnosed with acute myelogenous leukemia, a cancer that Smith said has only one known cause: exposure to nuclear radiation.

Rosenblum said that if Tang’s lawsuit is successful, it will "obviously have an impact on our ability to manage the plant."

The suit also seeks damages from Westinghouse Electric Corp., Combustion Engineering Inc. and Bechtel Corp. – the companies that supplied the fuel rods to the plant.

Former San Onofre Inspector Sues Over Radiation Exposure

By Andrew Horan
(Orange County Register)

In a landmark case challenging the industry's limits, woman says radiative fuel fragments at the plant caused her leukemia.

For 18 months, R.C. Tang monitored the safety of workers at the San Onofre Nuclear Generating Station. She saw to it that they safely followed security, engineering and technical procedures.

Today she is in a Los Angeles-area cancer ward, recovering from leukemia treatments as jury selection begins on her landmark lawsuit that challenges the industry's position on safe radiation limits.

Tang's attorneys, Don Howarth and Suzelle Smith of Los Angeles, will argue that radiation-detection badges and monitors are adequate.

For instance, most monitors are not designed to detect the kind of radiation emitted by fuel fleas because it is assumed they will not escape.

IRVINE : City Found Partly at Fault in Boy's Death

By Rene Lynch
(Los Angeles Times)

An Orange County Superior Court jury Tuesday awarded $576,800 to the mother of a 14-year-old boy killed at a dangerous intersection in the city, which was found partly responsible for the boy's death.

Teen-ager David Leidal, an honors student at University High School, was struck and killed as he rode his bike in the crosswalk at Michelson Drive and Yale Avenue on his way to school in September, 1988.

The attorney for David's mother, Betty, argued to jurors that the city was aware of speeding cars at the intersection but failed to heed numerous complaints. Attorneys for the city contended that the intersection is safe, and argued that the city could not be held responsible for a driver who ran a stop sign at the crosswalk.

Jurors held the city 25% responsible for the death but put most of the blame--72%--on driver Pejman B. Alaghamandan, who was 17 when he drove through the intersection without heeding the stop sign. Jurors placed 3% of the blame on the victim.

Irvine must pay about $200,000 of the judgment but may appeal the jury award. The driver, who was convicted of misdemeanor manslaughter, had only $15,000 in insurance at the time and may have to file for bankruptcy, his attorney said.

Juror Wendy Ramsbott, 29, of Laguna Hills said the case was a difficult one in which jurors had to decide the financial worth of a child.

"I'm a mother, and I can tell you this was a very difficult case," said Ramsbott, who sided with the majority of jurors who felt the city was partly responsible for hazardous conditions at the intersection. "How do you put a value on the life of a child?"

Steve King, 43, of Costa Mesa was among the minority jurors who felt that the city was blameless.

"I believe the city did more than its share to do what was required at that intersection," King said. "Any time you put cars on the road, you have fatalities. Cities can't be held to blame for that."

Attorney Suzelle Smith, who represented the victim's mother, had suggested to jurors that an appropriate award would register in the millions. Smith admitted disappointment but said she was also pleased that the city was found partly responsible.

"I am personally, absolutely delighted that the jury recognized the city of Irvine was one of the causes," she said. "Candidly, I think the verdict is low for a 14-year-old boy with a promising future."

Attorney Bill Haggerty, who represented the city, said he is considering an appeal. Haggerty said the intersection in dispute is safe, and noted that a study determined that 83% of Irvine's intersections are more dangerous.

"I don't feel victory at all--the city of Irvine was not responsible at all," he said, adding that he believed the emotional issue of schoolchildren's safety blurred jurors' judgment.

Jury Holds City Partly Liable in Youth's '88 Traffic Death

(The Orange County Register)

A Santa Ana jury Tuesday decided the intersection of Michelson Drive and Yale Avenue in Irvine is dangerous and awarded $576,800 to the family of a boy killed by a car there in 1988.

But after three days of deliberations, the jury placed the bulk of the blame on Pejman Brian Alaghamandan, who barrelled through a stop sign at 40 mph and killed David Leidal, 14.

The city, sued along with Alaghamandan by Leidal's mother, Betty, will pay about $200,000. Suzelle M. Smith, Betty Leidal's attorney, contended that the city ignored residents' complaints that the intersection was dangerous before the accident. She had sought a multimillion dollar award.

"I am personally delighted the jury recognized that the city of Irvine was one of the causes of David Leidal's death," Smith said. "Candidly, I think the verdict is low for the life of a 14-year-old with a promising future."

"How do you put a value on the life of a child?" said juror Wendy Ramsbottom. 29, of Laguna Niguel. "We had a lot of debate on that."

Alaghamandan, now 23, pleaded guilty to manslaughter after the accident. The jury held him 72 percent responsible. But his insurance policy maximum is $I5,000, said Bill Haggerty, Alaghamandan's attorney.

While the remainder of the jury's decision could be entered against Alaghamandan, Haggerty said that would only force his client into bankruptcy.

Haggerty, while admitting his client's responsibility, had argued in court that Alaghamandan was a victim of the accident, too. Smith and Haggerty said drivers were not provided with enough warning of the stop sign.

David Leidal, who was riding his bicycle to school, was held 3 percent responsible and the city 22 percent.

While Smith said she hopes the decision will spur the City Council to install safety devices, Rick Quinlivan, who represented the city, said he doubts such steps will be taken.

"Eighty-three percent of the intersections in the city have accident rates higher than this one," Quinlivan said. "I don't feel the city had any responsibility at all."

Jury Awards $3.5 Million in '88 Murder of Woman Leaving Mall

By Amy Louise Kazmin
(Los Angeles Times)

The family of a woman who was raped and murdered after being abducted from a Pasadena shopping mall has been awarded $3.5 million by an Alhambra Superior Court jury, which found that security at the facility was inadequate.

After about a day of deliberations, the jury decided Monday that the owners of Plaza Pasadena did not take sufficient steps to ensure customers' safety in the mall's vast underground parking lot. The jury also found that the lack of security was a direct cause of the crimes that led to the death of Lois Haro.

The 26-year-old college student, who planned to be a marriage and family counselor, was leaving the mall on Oct. 18, 1988, when two teen-agers confronted her at gunpoint in an escalator leading to the parking lot. She was taken to an area under Pasadena's Colorado Street Bridge, where she was raped and then shot once in the head, detectives said.

Ronald Anthony Jones and George Marvin Trone Jr., now both 21, were convicted by Pasadena Superior Court juries of first-degree murder, rape, kidnaping and robbery. Jones was sentenced to death. Trone was sentenced to life in prison.

Attorney Rene Kern, who represented Plaza Pasadena, said an appeal of the decision is being considered. He denied that mall officials had skimped on security and said, "the best security program that could be put together" was provided.

"This is not a coldhearted, unthinking corporation," Kern said. "They are conscientious, and they make every effort to provide the best possible atmosphere."

Haro's husband, Tony, 27, said he and his wife's parents, Elsie and Herbert Purnell of Pasadena, sued Plaza Pasadena to force the management to upgrade security and to deter similar crimes. Ten months after his wife's murder, another woman was abducted at knifepoint from the parking lot and raped off the premises, Haro said.

"The whole point of this lawsuit was certainly not the money," he said. "It was for the mall to prevent other women from going through what my wife went through.

"Hopefully this will send a message to them to take security a lot more seriously than they have been, and that the people that come to their mall to shop are much more important than their profits."

Plaza Pasadena is owned and operated by H-CHH Associates, a general partnership, and Ernest W. Hahn Inc., a San Diego-based firm that owns at least 47 shopping malls across the country.

During the monthlong trial, the family's attorney, Suzelle Smith, said that in the years before Haro's kidnaping, the Plaza Pasadena parking lot was the scene of numerous crimes, ranging from purse-snatchings to car thefts, armed assaults, robberies and the 1982 murder of a 9-year-old girl.

Despite that, the two-level underground parking facility, which stretches under two city blocks, was patrolled by only a single guard, Smith said. Kern denied that, but refused to elaborate.

When the mall was built in 1980, the parking lot and the escalators leading into it were monitored by video cameras. However, the cameras fell into disrepair after about 1 1/2 years and were never fixed, despite the recommendation of the Pasadena Police Department, Smith said. One of the non-working surveillance cameras was located at the escalator from which Haro was abducted.

After the camera system broke down, Smith said, the mall's director of security wrote a memo stating that, to provide the same level of surveillance, he needed four guards patrolling the parking lot.

But, Smith said, the mall owners "had a budget for security. And that was all they were going to spend."

Kern, the mall's lawyer, said the management decided not to fix the video cameras because they were not as effective as "well-trained, conscientious security guards." As to the number of guards, the lawyer said, "there are enough. There were enough."

Unfortunately, he said, no matter what security precautions are taken, some crime is bound to occur.

"I'm not aware of an area of Los Angeles County that's crime-free," he said.

Sears Loses $7M Liability Case

By Marie Vasari
(Alhambra Post-Advocate)

The verdict, rendered Jan. 30 by an Alhambra Municipal Court jury, held that Sears, Roebuck & Company was at least partially responsible for the 1984 incident which left Scott Garland a quadriplegic. Garland, now 35, was injured when the Sears extension ladder he was using slipped out from under him, throwing him approximately 15 feet and damaging his spinal column.

Attorney Suzelle M. Smith said the 1984 accident left the Monrovia resident paralyzed from the chest down, without the use of his arms or legs and with only marginal use of his fingers. Because of his injuries, Smith said her client was unable to continue working at a time when his reputation was becoming established and he was preparing to start his own business. Smith, an attorney from the Los Angeles-based law firm of Howarth & Smith, represented Garland in the suit against Sears, along with partner Don Howarth.

"This is certainly the largest ruling against Sears in any ladder case that I'm aware of," Smith said.

Garland was working as a volunteer for a church play at the Sierra Madra Congregational Church when he and another volunteer used a Sears Heavy Duty 36-foot extension ladder, to retrieve pipes stored in the rafters of the church gymnasium. The two set up the ladder against one of the rafters, Smith said, and although Garland tested the ladder, it slipped out from under him as he stood six rungs from the top. The ladder, manufactured in 1970, was purchased by the church through Sears' catalogues.

The jury, after deliberating for four and one-half days, ruled that Sears was negligent in the design of the ladder and in failing to provide adequate consumer safety warnings. The silver-colored ladder equipped on its inside with a label of the same color and white lettering which read, "Safest, strongest for all home, farm, commercial, industrial uses," and stated the ladder should be set up at a one-to-four ratio from the base to the wall, or a 75 degree angle. Garland's attorneys argued that the warning was inconspicuous, inadequate and did not state the consequences of improper set-up.

Attorneys for Sears had argued that the ladder was not defective because it violated no existing standards at the time of it was manufactured, and that Garland failed to use common sense or heed the warnings of his co-worker.

Hey, Dude. I OBJECT.

By David J. Jefferson
(The Wall Street Journal)

People who start small law firms also like to do things their way. In Los Angeles, this can take on a California cast. When Don Howarth left a big Los Angeles law firm seven years ago to start up a trial law firm, Howarth & Smith, he brought his surfboard with him. And he wasted no time immersing his staff in California surf culture.

Copies of "Surfer" magazine are strewn about the office, and seascapes painted by Mr. Howarth's wife hang on the walls. Mr. Howarth proudly points out to visitors that the "wave action" in the paintings is technically accurate from a surfer's viewpoint. Mr. Howarth, 45, had a huge saltwater aquarium with a living reef constructed in the office.

In court, the attorney often peppers his closing arguments with surfing metaphors; one recent courtroom speech about a missed opportunity became the tale of "a wave that passed you by," he says. And the firm's 22 lawyers and their spouses attend an annual retreat in Cabo San Lucas, Mexico, where Mr. Howarth arranges group surfing activities and shows beginners how to hang 10. "I tried surfing with him once and I almost got killed," says partner Suzelle Smith.

Ex-Employee, Awarded $9 Million, Must Pay $600,000 to Company

By Mayerene Barker
(Los Angeles Times)

A former employee of a Tarzana medical testing firm, who last week was awarded $9 million in a lawsuit against the company, was ordered Monday to pay his ex-employer $600,000 in damages.

Jurors had sided with employee Harvey J. Lippman in the suit, which argued that he was entitled to a 20% share of the company at the time he was fired. The $9-million verdict last Tuesday was one of the largest awards in Van Nuys Superior Court history, said Judge Thomas Schneider.

But on Monday, jurors also decided that Lippman had misappropriated trade secrets and unfairly competed against his former employer, Central Diagnostic Laboratories, and ordered him to pay $600,000.

The decision was the culmination of a trial that has lasted since Jan. 18.

Lippman filed the suit against the company in October, 1985, after he was fired by the firm's owner, Dr. Allen M. Levy. Lippman, who had worked for the firm for 14 years, claimed that he was entitled to 20% of the company because of an oral agreement with Levy.

In turn, Levy's attorney, Allan Browne, filed a cross complaint against Lippman alleging misappropriation of trade secrets and unfair competition. The jury ruled against a slander charge Levy filed against Lippman.

Don Howarth, Lippman's attorney, maintained that Levy fired Lippman to avoid giving him 20% of the company, an oral commitment the attorney said Levy agreed to in 1976.

Lippman described his relationship with Levy as one of father and son. "He made a promise to me and I trusted him," he said Monday outside of court.

Browne, argued that since Lippman, 46, could produce no written document, the oral agreement was not valid. He also maintained that his client fired Lippman when he discovered that his employee was using the firm's client lists and other assets to establish his own company.

Lippman said he has since founded another medical testing firm, Clinical Science Laboratory of North Hollywood, but denied doing so while working for Levy.

Howarth said that as head of marketing for the firm, Lippman had build the company from one that employed only nine workers in 1970 to a major business that has about 900 employees and grossed $45 million in 1985, the year his client was fired.

"I now feel that justice has been served," Lippman said after the verdict. "I'm very happy."

Appeal Planned

Levy was not in court Monday afternoon and was unavailable for comment. But Browne indicated his client will appeal the $9-million award. "This is only round one of a 10-round battle," he said.

Browne said he found the $9-million award "hopelessly inconsistent" with the jury's award of $600,000 to the company Monday.

Jury foreman William B. Cummings said the 11-1 verdict came after three days of deliberations.

"We were convinced a verbal agreement had been made," he said. Cummings called Lippman's job performance exemplary.

He said the jury arrived at the $9-million figure by taking 20% of $45 million, the amount the company grossed in 1985, the year Lippman was terminated.

Central Diagnostic Laboratories has other problems too. Last month, federal health authorities decertified one of its subsidiaries, Central Pathology Services Medical Group, Southern California's largest Pap smear laboratory, saying it had misdiagnosed too many specimens.