1999 brings ups and downs for tobacco plaintiffs.

Although the high-profile state lawsuits against the tobacco industry were put to rest with a comprehensive settlement last year, cases brought by sick smokers and their families continue around the country. Recent developments suggest that individual tobacco plaintiffs are in for a roller coaster ride in 1999.

Consider these ups and downs:

* In California, a jury slapped Philip Morris Cos. with an unprecedented $50 million in punitive damages, in addition to $1.5 million in compensatory damages, in a case brought by a 52-year-old former smoker with inoperable lung cancer. (Henley v. Philip Morris Cos., No. 995172 (Cal., San Francisco Super. Ct. Feb. 11, 1999).)

* In Florida, an appeals court overturned a $1 million verdict for the family of a deceased smoker--the only other verdict to include punitive damages against a tobacco company--ruling that the trial that produced the award against Brown & Williamson Tobacco Corp. (B&W) had been held in the wrong county. (Brown & Williamson Tobacco Corp. v. Widdick, No. 98-894 (Fla. Dist. Ct. App. Jan. 29, 1999).)

The California verdict was an unexpected boost for tobacco cases and stunned even the plaintiff, Patricia Henley, and her San Francisco attorney, Madelyn Chaber, who had asked the jury to "send a message" by awarding $15 million in punitives.

Jurors were "very angry at the cigarette companies," jury foreman George Loudis told reporters after the verdict. "It was the intent of the jury to send a message. The suppression [of evidence about the health effects of smoking] was the biggest thing we focused on." (Rinat Fried, Philip Morris Nailed with $50 Million in Punitives, The Recorder, Feb. 11, 1999, at 1.)

Philip Morris lawyers called the verdict an "aberration."

"Obviously we're very disappointed in the result," said Philip Morris attorney William Ohlemeyer of Kansas City, Missouri. "We think it is contrary to the evidence that the jury heard." (John Schwartz, Jury Awards Ex-Smoker $51.5 Million, Wash. Post, Feb. 11, 1999, at A3.) He said the company will appeal.

Henley alleged that tobacco companies had covered up evidence that smoking has serious health effects and that nicotine is addictive. Chaber presented more than 1,000 internal industry documents that showed the companies were well aware of these risks but continued to deny them and market their products to young people. Henley started smoking when she was 15 years old and smoked as many as three packs of Marlboros a day until her cancer diagnosis last year.

Chaber said the documents, housed in a Minnesota repository and made available to tobacco plaintiffs across the country as a result of Minnesota's settlement with the industry last year, were the primary reason her client's case succeeded after so many similar lawsuits have failed.

The jurors "didn't start out mad, but as they saw the evidence, and as the defendants continued to deny everything--including that cigarettes cause lung cancer and other disease--they felt that there needed to be a clear message and that I had been far too conservative in my request for punitive damages," Chaber said.

She said the jurors' reaction to the documents "proves that the defendants were wise to settle the state cases when they did."

Antitobacco lawyers were bullish on prospects for future cases. "I think these cases are viable everywhere in the country," said Richard Daynard, chair of the Tobacco Products Liability Project at Northeastern University in Boston. "I would expect to see a heck of a lot more being brought and a very high number of them being won" by plaintiffs.

Meanwhile, Jacksonville, Florida, attorney Norwood "Woody" Wilner was being reminded that victory can be short-lived. He plans to appeal the reversal of his client's verdict by a Tallahassee appeals court, which ordered that the case be transferred from Duval County, where Wilner has offices and the case was tried, to Palm Beach County or Broward County, where the plaintiffs and most of the witnesses live, for a new trial.

The venue dispute arose in a pre-trial motion by B&W, which was denied by the trial judge. The trial went on and the jury awarded damages to Wilner's clients, the family of deceased smoker Roland Maddux. Later, the Tallahassee appeals panel--apparently unaware that the trial was over --granted B&W's motion for a change of venue. (Future of Tobacco Verdict Is Uncertain After Florida Appeals Court Ruling, TRIAL, Oct. 1998, at 17.)

The Duval County judge who had overseen the trial refused to strike the verdict but transferred the case to Palm Beach County for further action. B&W appealed that decision, and the appeals court overturned the verdict in January.

Stephanie Hartley, an attorney working with Wilner on the case, said Maddux's family plans to challenge the Jacksonville appeals court's jurisdiction in the case. "We don't believe they had jurisdiction after they had already said the case should be transferred," Hartley said.

The procedural twists in the case are highly unusual, she said, adding that "lawyers all over the state are baffled" by the court's ruling.

"It's unprecedented to send a case back for a new trial based on a venue determination," Daynard said. "The defendants did not demonstrate any harm [from holding the trial in Duval County]. They didn't show any witnesses were unavailable or that the jurors were prejudiced. There was no reason to think there was anything unfair about the trial in Jacksonville."