Class actions claim tobacco industry deceived smokers about nicotine.

Six years have passed since the U.S. Surgeon General first blamed nicotine for smokers' irresistible craving for cigarettes. But only in recent months has nicotine addiction come to the forefront of tobacco litigation.

Two class actions turning directly on the addiction issue were filed this spring in federal courts:

* In Louisiana, a class action on behalf of all nicotine-addicted smokers seeks compensatory and punitive damages from the industry and demands that tobacco companies establish a fund to monitor smokers' health. (Castano v. American Tobacco Co., No. 94-1044 (E.D. La. amended complaint filed May, 9, 1994).) The class potentially includes tens of millions of people. An estimated 50 million people in the United States smoke cigarettes.

* In California, the tobacco industry is facing for the first time a claim under the Racketeer Influenced and Corrupt Organizations (RICO) Act, filed on behalf of smokers who used the nicotine patch to help them kick the habit. The suit seeks economic damages to reimburse patch users for the cost of the treatment, usually $500 to $1,000 per patient. Patrick Coughlin, a San Diego attorney working on the case, said treble damages, which RICO provides, could amount to as much as $9 billion. (Allman v. Philip Morris, Inc., No. 94-0504-IEG(CM) (S.D. Cal. filed Apr. 29, 1994).)

Both suits allege that tobacco companies covered up what they knew about the addictive power of nicotine, maintaining publicly for decades that there was no evidence that smoking was addictive. Both cases steer clear of the health claims that have failed for tobacco plaintiffs in the past.

The cigarette makers "have been successful at convincing the general public that science could not definitely connect the diseases" to smoking, said Wendell Gauthier of Metairie, Louisiana, a lead attorney in the Louisiana class action. "We're just saying the companies said their product didn't cause addiction, but it did. It's a much easier case."

Coughlin said focusing on addiction avoids the individual issues that arise in cases involving smoking-related disease. "You can only get the patch if a doctor finds you're addicted to nicotine, so we jump over those causation hurdles," he said.

A third class action, filed in Florida state court, makes similar allegations about an addiction cover-up but also includes more traditional claims that smoking caused the plaintiffs to suffer a variety, of illnesses. Stanley Rosenblatt, a Miami attorney who represents six named plaintiffs, said the class would include all smokers. (Engle v. R.J. Reynolds Tobacco Co., No. 94-08273 (Fla., Dade County Cir. Ct. filed May, 5, 1994).)

The nicotine issue has gained the national spotlight since February when U.S. Food and Drug Administration (FDA) Commissioner David Kessler launched an investigation into whether tobacco companies manipulate nicotine levels in cigarettes to keep smokers hooked. He asked Congress for direction on how the agency might regulate cigarettes as drugs.(See FDA Asks for Help from Congress to Regulate Cigarettes as Drugs, TRIAL, May 1994, at 91.)

The industry asserts that cigarettes are not addictive and that tobacco companies do not manipulate nicotine levels. Seven top industry, executives expressed those views at a hearing before the House Energy and Commerce Committee's Subcommittee's on Health and the Environment in April.

James Johnston, chairman and chief executive officer of R.J. Reynolds Tobacco Co., took issue with the definition of addiction. "The allegation that smoking cigarettes is addictive is part of a growing and disturbing trend that has destroyed the meaning of the term by characterizing virtually any enjoyable activity as addictive, whether it is eating sweets, drinking coffee, playing video games, or watching TV," Johnston said. (Industry Executives Tell House Panel They Do Not Manipulate Nicotine Levels, 22 Prod, Safety & Liab. Rep, (BNA) 399 (Apr. 15, 1994).)

Rep. Henry Waxman (D-Cal), chair of the subcommittee, replied, "Twinkies don't kill people, Mr. Johnston. The difference between Twinkies and cigarettes is death. Your product kills people."

Waxman and other tobacco industry critics say the industry's credibility, has been battered by recent disclosures of internal studies and documents. Several documents suggest that cigarette manufacturers knew years ago that nicotine was addictive but concealed the evidence. Another document indicates that companies have manipulated the nicotine content of cigarettes.

* A former Philip Morris scientist told Waxman's subcommittee in April that the company halted his research on nicotine addiction and shut down his lab shortly after Rose Cipollone sued Philip Morris over her lung cancer in 1983. Her suit led to a U.S. Supreme Court decision holding that the federal cigarette labeling law does not preempt state tort suits for fraud and misrepresentation. (Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992).) Cipollone claimed that the tobacco industry had misled her into believing that cigarettes were safe and not addictive.

Dr. Victor DeNoble testified that his animal studies, though not conclusive, suggested that nicotine might be addictive. He also told the committee that the company forced him to withdraw, a paper on his nicotine research that was awaiting publication in a scientific journal. (See Eben Shapiro, Scientist Says Philip Morris Suppressed His Research on Nicotine Addiction, Wall St. J., Apr. 29, 1994, at B8.)

* The New York Times in May disclosed a memo in which Addison Yeaman, former general counsel for Brown & Williamson Tobacco Co., wrote, "We arc, then, in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms." He said cigarettes provide "a nice jolt of nicotine." Other documents obtained by the Times showed that company research had indicated a WA between cigarette smoking and heart and lung diseases. (See Philip J. Hilts, Tobacco Company Was Silent on Hazards, N.Y. Times, May 7, 1994, at 1.)

* In April, Waxman released a 1981 report by Alexander Spears, a former researcher and current vice chairman at Lorillard Tobacco Co., that shows that the company looked for ways to increase nicotine levels in cigarettes while simultaneously decreasing the tar content. Spears had testified to Congress during a hearing in March that when tar content is lowered, nicotine content goes down as well. (See John Schwartz, 1981 Report on Tobacco Is Released, Wash. Post, Apr. 14, 1994, at A3.)

The complaints in the class actions cite other examples of potentially damaging company documents, including a memo written in the early 1970s by Philip Morris research scientist William Dunn, Jr. In the memo, Dunn said the physiological effect of smoking was the "primary incentive" for smokers. "Think of the cigarette as a dispenser for a dose unit of nicotine," he wrote.

Conspiracy Allegations

The class actions fault the industry for deliberately keeping smokers in the dark about nicotine addiction. Melvyn Weiss, a New York City, attorney working with Coughlin on the RICO case, said the industry's conduct constitutes "a conspiracy going back for many years ... to defraud the public into believing that cigarettes weren't addictive."

Specifically, the suit identifies the Council for Tobacco Research, established by tobacco companies in 1954, as the vehicle for the alleged fraud. Although the council was set up ostensibly to conduct "independent" studies on the health effects of smoking, unfavorable research about addiction and disease was diverted into a "special projects division" supervised by lawyers, where the results would be protected by attorney-client privilege, according to the complaint.

"The Council for Tobacco Research was a public relations ploy," Coughlin commented.

Gauthier said the Louisiana case was made possible because the focus on the tobacco industry's record on the addiction issue attracted a small army of attorneys willing" to put up money and attack the problem in a new way." Some 50 law firms around the country, many with recent mass tort experience in the federal breast implant litigation, have committee $4 million thus far to finance the case.

"Every [lawyer] involved ... has some tragic story to tell you about someone they lost because cigarettes," Gauthier. said. "We think [smoking] is a social ill that needs to be addressed on a level playing field. We're leveling the playing field."