First class action filed against makers of smokeless tobacco products.

Three attorneys with no previous tobacco litigation experience have filed a class action in Florida against the makers of smokeless tobacco products. (Vasallo v. United States Tobacco Co., No. 2002-28397-CA-01 (Fla., Dade County Cir. Ct. filed Nov. 12, 2002).)

"It's a pet project of ours," said plaintiff attorney Patrick Russell, who used to chew tobacco. "Once you start, it's almost impossible to stop. And the chemical composition of this stuff is really damaging. Each component individually is a carcinogen, and putting them all together in a motley soup is unbelievable."

The class includes six plaintiffs and more than 10,000 state residents harmed by tobacco meant to be placed in the mouth; their illnesses include cancer of the lip, tongue, esophagus, and stomach. The plaintiffs are making claims for negligence, strict liability, fraud and misrepresentation, civil conspiracy, intentional infliction of emotional distress, medical monitoring, and violation of Florida's Deceptive and Unfair Trade Practices Act.

The plaintiff attorneys--Russell, David Hagen, and John Patterson, all of Miami--have enlisted the help of Miami firm Grover, Weinstein & Troponto, which has represented flight attendants in litigation against tobacco companies.

The Vasallo defendants--United States Tobacco Co. (UST), Conwood Co., Pinkerton Tobacco Co., Swisher International, and Swedish Match North America--produce and sell loose-leaf or chewing tobacco and moist snuff. Their products include common brands such as Copenhagen, Skoal, and Red Man, as well as others with folksy sobriquets like Dental Sweet, Day's Work, Chattanooga Chew, and Southern Pride. An industry research group, the Smokeless Tobacco Council--with members including Conwood, Swedish Match, and Swisher--is also a defendant.

The suit is modeled on Engle v. R.J. Reynolds Tobacco Co., a Miami class action against cigarette companies. (No. 94-08273 CA-22 (Fla., Dade County Cir. Ct. Nov. 6, 2000).) A jury awarded $145 billion in punitive damages in that case, which at press time was on appeal to Florida's Third District Court of Appeals. Engle claimed that cigarette companies hid nicotine's addictive nature and that smokers could not quit because they were addicted to tobacco; as a result, they developed conditions including heart disease and lung cancer.

Russell, Hagen, and Patterson believe smokeless tobacco companies should bear the same liability. They say the companies manipulate nicotine levels to make their products more addictive, conceal research that shows the dangers of chewing tobacco, and do not properly warn consumers about the dangers.

So far, only one suit against a smokeless tobacco manufacturer has gone to trial. Sean Marsee, a high school track star and habitual snuff user, died of oral cancer at age 19. His family lost its case against UST. (Marsee v. U.S. Tobacco Co., 639 F. Supp. 466 (1986).)

In December 2001, the Environmental Law Foundation and the city of San Francisco settled a suit with UST and other makers of chewing tobacco and snuff. The suit alleged smokeless tobacco manufacturers violated Proposition 65, the state's toxics warning law, by making a product containing two categories of chemicals defined by that law as carcinogens and reproductive toxins. The settlement included attorney fees and money for education programs, and the companies agreed to distribute signs to stores that sell the products, warning that they could cause cancer and birth defects.

With no precedent to pave the way, the three Miami attorneys must establish in court that smokeless tobacco causes cancer. They say there are studies that show a causal link, such as a 2000 report by the U.S. Department of Health and Human Services that identifies spit tobacco as a "known human carcinogen." (Users of chewing tobacco and snuff must expectorate the residue, which is why these products are called "spit" tobacco.)

"This is the type of case that can go nationwide eventually, and whatever we do here in Florida can be duplicated across the country," said Russell.

While he would like to see their theories used widely, "for me, it's a personal mission just to get the word out. If somebody can read what comes out of this and see the dangers and inherent risks, and if that can stop a few people from using the products, that will be a good case."