Firms Not Liable in Secondhand Smoke Death

by John Schwartz, Washington Post Staff Writer
Copyright 1998 The Washington Post Company
March 20, 1998

Tobacco companies are not liable for the cancer death of a nurse who breathed secondhand smoke for 17 years at a veterans hospital, a jury in Muncie, Ind., found yesterday.

The family of Mildred Wiley, a daughter of missionaries who died in 1991 at the age of 56, had sued the industry for at least $13.3 million, claiming tobacco companies had breached a duty to warn consumers about the risks of breathing secondhand smoke and tried to cover up the facts.

The companies argued during the six-week trial that secondhand smoke does not cause lung cancer and that Wiley's disease could have come from other sources such as radon.

The jury -- believed to be the first to have to wrestle with the difficult science behind secondhand smoke -- deliberated for some 19 hours over two days.

William Ohlemeyer, an attorney from the Kansas City law firm of Shook, Hardy & Bacon who argued the case for the companies, called the decision a "significant result" and said, "If the jury does what they're supposed to do, the facts take care of themselves. We had the better of the facts."

Outside the courthouse last night, widower Philip Wiley told reporters, "I was so disappointed with the verdict, but it will have to stand," according to the Associated Press. The Wileys had sued all of the major American tobacco companies, as well as the Tobacco Institute and the Council for Tobacco Research.

Although the Environmental Protection Agency, the National Research Council and surgeons general have called secondhand smoke a health risk, the case against it is statistically weaker than the evidence that active smoking causes such diseases as lung cancer. Studies have generally shown a slight increase in risk for lung cancer, especially among people with high exposure to cigarette smoke, but have not found a doubling of risk, which is the kind of jump that epidemiologists often use as a rule of thumb for measuring risk with confidence. Many epidemiologists note that a consistent pattern of similar findings, as has emerged in studies of secondhand smoke, can also be used to bolster confidence.

A new study by the International Agency for Research on Cancer has been hailed by the tobacco industry as proof that there is no risk from secondhand smoke, and that it may have even a protective effect against cancer. Many newspapers overseas, including the Times of London, have reported on the study, which is still undergoing peer review and has not been published officially. The industry has accused the study's sponsors, the World Health Organization (WHO), of trying to bury the research.

WHO has accused the companies of having "completely misrepresented" the findings and has said the study will be released after the customary review process. The organization issued a statement that the study had found "an estimated 16% increased risk of lung cancer among non-smoking spouses of smokers. For workplace exposure, the estimated increase in risk was 17%. However, due to small sample size, neither increased risk was statistically significant."

Last night, a representative of the Brown & Williamson Tobacco Corp. cited the new study in discussing the Wiley case, saying it "found no mean increase in lung cancer risk to nonsmokers exposed to ETS," environmental tobacco smoke. But Mark Smith said he had not seen the study and did not understand enough about epidemiology to properly interpret it, though he offered to make company scientists available at a later date.

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