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Where There's Secondhand Smoke...


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WHERE THERE'S SECONDHAND SMOKE...

The late Burl Butler should be the perfect client for lawyers looking to defeat the seemingly invincible tobacco industry. He didn't smoke or drink. He rarely swore during his 60 years of life. He read the Bible so much that he had to buy new copies as old ones wore out. And he was exposed to toxic chemicals only a few times. He was, in fact, a paragon of clean living. So when Butler got lung cancer, allegedly caused by exposure to patrons who smoked at his barbershop in Laurel, Miss., his lawyers brought one of the first--and most closely watched--passive-smoking cases.

Now, Burl Butler and his lifestyle are the focus of a struggle that holds huge consequences for tobacco companies. The Butler case, when it goes to trial--perhaps early next year--is expected to be the first in which the industry defends itself against an alleged death from secondhand smoke. A loss could unleash an avalanche of new litigation: Already, a passive-smoking class action suit has been brought in Florida by flight attendants. Butler's case is all the more critical because it could be the first in which top-secret company documents about research into the health risks and addictiveness of nicotine and dangers of secondhand smoke are used as evidence at trial. At a hearing in mid-August, a Mississippi state judge will rule on whether two companies must turn over their internal records.

Butler seemed to be a victim who could blunt the tried-and-true tactic of tobacco lawyers: They couldn't claim, as they have with smokers, that he knew the risks of their product but just would not stop using it. With that in mind, it seems, the defense has turned its strategy up a notch in the nearly two-year-old case. Although she can't prove it--and lawyers for the defense deny it--Butler's widow, Ava, contends that the day before her husband's death the companies sent a helicopter to hover over her house as part of an effort to learn more about Burl's habits. Ava says two men in the chopper photographed her home and garden. But she says such pressures won't keep her from pursuing her husband's case. "Maybe this will be his contribution to his country, to let people know that secondhand smoke can kill you," she says.

RISK-TAKER? Tobacco lawyers insist that their tactics, though aggressive, represent a textbook defense. Their goal is to discover whether an individual's lifestyle or genetic makeup could have caused the fatal disease. "I think it's going to be very difficult for someone to come into court and say, No.1, the scientific evidence proves that secondhand smoke causes lung cancer, and No.2, that this plaintiff's lung cancer was caused by secondhand smoke," says Steven Parrish, general counsel of Philip Morris USA.

Still, the defendants, including R.J. Reynolds Tobacco Co. and Philip Morris, aren't taking any chances. From the moment Butler filed his suit, the defense has sought to portray the Korean War veteran and church deacon as a man with a risk-taking personality. Butler liked to hunt and to work with power tools. He occasionally ate red meat. Perhaps it was long-term exposure to hair spray and talcum powder that killed the barber, defense lawyers suggest. "Cancer is a lifestyle disease," says Charles R. Wall, associate general counsel for Philip Morris Cos.

Indeed, tobacco lawyers have sought information about everything from Ava's gravy recipe to the types of chemical fertilizers Butler was exposed to while plowing his father's farm with mules as a kid. Before his death in May, defense lawyers even asked to be present at Butler's autopsy, a request that was dropped out of fear of bad publicity. And no potential witness has gone unquestioned. Ava Butler says more than 100 people in Laurel have said that investigators have called or visited to learn if they ever saw Butler smoke. Butler lawyer Cynthia Lott says defense investigators have even visited out-of-state ex-boyfriends of Butler's daughters.

Such gamesmanship is not uncommon in hotly contested legal disputes. And, as in the Butler case, it can yield results. Tobacco defendants have learned that at least three of Butler's 12 siblings suffered from some form ef cancer. In fact, cancer may have contributed to the sudden death of Butler's father at age 65. What's more, Butler's decision to purchase a life-insurance policy shortly after he began suffering severe back pain--and just weeks before the formal cancer diagnosis--may indicate that he suspected a life-threatening disease even though he said that the cancer diagnosis was a surprise. Defense lawyers claim to have uncovered people who will testify that they saw Butler smoke in his shop--a contention that the plaintiffs flatly deny.

Along with the lifestyle inquiry have come the bare-knuckled legal tactics that have helped the industry avoid ever losing a smoking case. At the first hearing, industry counsel hit the Butlers with what plaintiffs' lawyers call "the wall." More than 28 lawyers appeared on behalf of the 13 defendants and denied every request plaintiffs made--a move that adds expense and delay to any case.

OUTSIDE HELP. During a deposition at a hotel in December, 1992, just weeks after Butler underwent chemotherapy, he answered questions for four consecutive days. He suffered a nosebleed during one session, but the deposition continued. The defense wanted to know why he never hung a no-smoking sign to stop people from fouling the air in his four-chair barbershop. Butler explained that banning smoking would have cost him substantial business.

With so much riding on the outcome of the suit, Butler's Jackson (Miss.) lawyers have turned outside for help. Last November, they recruited Ron Motley, a nationally known class-action lawyer with a financial war chest amassed through successful asbestos litigation.

Only time will tell if that will be enough to win in the Jones County courthouse in Laurel, where a Civil War memorial stands to the left of the entrance and a scar in the courtroom wall marks the spot where the electric chair once sat. Years ago, people climbed trees to get a look at executions. So far, there's no evidence that the present-day proceedings will be any more civilized.

THE BURL BUTLER SAGA

MAR. 18, 1992 Nonsmoking barber Burl Butler is diagnosed with lung cancer in New Orleans.

OCT. 21, 1992 Butler and his wife, Ava, sue R.J. Reynolds, Philip Morris, Brown & Williamson, and 10 other companies, claiming personal injury, fraud, and negligence. The lawsuit is the first major case alleging that secondhand smoke caused cancer.

DEC. 16-19, 1992 Butler, in the midst ef chemotherapy treatment, undergoes four days of depositions. Tobacco attorneys ask about a family history of cancer and imply he led a risky lifestyle.

MAY 7, 1994 Butler dies in his Laurel (Miss.) home.

MAY 12, 1994 Ava Dean Butler files wrongful death lawsuit in state court in Laurel.David Greising in Laurel, Miss., with Laura Zinn in New York


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