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    Pinellas court to weigh blame for smoker's ills

    A longtime smoker, ravaged by cancer, is the first person to go to trial against a tobacco company in a Pinellas County courtroom.

    By WILLIAM R. LEVESQUE, Times Staff Writer
    © St. Petersburg Times
    published May 9, 2002


    photo
    [Times photo: Fred Victorin]
    Robert Tune lost his voice box and part of a lung.
    ST. PETERSBURG -- Beginning in the early 1940s, Robert M. Tune smoked a pack and a half a day for most of his adult life.

    Tune says he tried to quit at least 20 times. He says he tried everything. The nicotine patch. Chewing candy. A hypnotherapist. Nothing worked.

    He kept lighting his Marlboros until doctors removed his cancerous voice box to save his life. Within a few years, part of a lung followed.

    Tune, 76, of Seminole will spend the next month in a St. Petersburg courtroom as his lawyers try to convince a jury that Philip Morris Inc., the company that manufactured his beloved Marlboros, should pay him for his suffering.

    In the first tobacco liability case to come to trial in Pinellas, the retired New Jersey police captain seeks compensatory damages in excess of $100,000 for medical bills and unspecified punitive damages from the nation's largest cigarette maker.

    "Philip Morris should accept some of the responsibility" for Tune's cancer, said Tune's lead attorney, Howard Acosta. "Mr. Tune accepts responsibility for his smoking. But do you expect the company to know more about its product than the average customer?"

    Tune's wife, also a heavy smoker, died of lung cancer, but Tune is not seeking damages for her death.

    The case, filed in 1997, is one of several dozen to reach trial nationally, including two cases tried in Hillsborough that were won by plaintiffs, though juries rejected large punitive awards. In one of the cases, the judge threw out the jury's verdict entirely.

    In Tune's case, lawyers for both sides are drawing familiar battle lines.

    For Philip Morris, that meant portraying cigarette smoking as a personal choice made by Tune. He made that choice, the company's lawyers say, even in light of evidence dating back a half century that should have indicated to him that the habit was dangerous.

    Though tobacco companies now acknowledge that cigarettes are addictive and cause cancer, they portray smokers as the makers of their own health destiny.

    "Robert Tune was aware of the health risks of smoking during all the time that he smoked Philip Morris products," said Philip Morris attorney Mathias Lydon. "The health risks were common knowledge."

    To prove his point, Lydon displayed to jurors on a large screen the series of warnings cigarette manufacturers were required to display on cigarette packages beginning in the 1960s.

    He said Tune never made a genuine effort to quit, something 1.5-million smokers a year manage to do.

    But Acosta said tobacco companies, beginning in the 1950s, began a conspiracy to keep from the public research indicating that cigarettes were addictive and caused serious health problems.

    That conspiracy began long before those surgeon general warnings, Acosta told jurors.

    He said it was true that people generally thought that cigarettes might be dangerous, even before surgeon general warnings. But he says warnings of health risks were more anecdotal.

    "People were thinking maybe cigarettes cause cancer," he said.

    Philip Morris' second line of defense involved throwing doubt into the source of Tune's cancer.

    Lydon, for example, pointed out that Tune, while not an alcoholic, was a regular drinker for all of his adult life. Alcohol can contribute to some forms of cancer, especially the cancer that took Tune's voice box, he said.

    He also told jurors that Tune, a Navy veteran of World War II who retired to Florida in 1990, lived most of his life in Middlesex County, N.J., an area with an extremely high cancer rate, perhaps due to the region's heavy industry.

    In fact, before he began work as a police officer, Tune worked in a series of jobs for chemical companies handling potentially harmful chemicals, including DDT.

    "He ... ignored these (surgeon general) warnings," said Lydon. "What did he do? He just continued to smoke."

    Acosta said, "They admit smoking causes cancer. But they deny his smoking caused his cancer."

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