Case of former flight attendant blazes trail for tobacco lawsuits
There it was in black and white, projected onto a wide screen in Miami-Dade Circuit Court -- X-rays of former flight attendant Marie Fontana's chest, taken annually and showing the progression of diseases that appear to be petrifying her lungs.
There, too, was the fuzzy outline of the growing fungus ball, first appearing in the left lung and later spreading to the right. Untreatable, radiologist Dr. Michael Foley testified, because those cavities in her lungs are dead, lacking a flow of blood that could carry the antibiotics to fight the fungus.
And so it began.
Last Wednesday was the start of much more than testimony in Fontana's fight to convince a jury that the diseases marching through her lungs are the result of working for decades in airplanes clogged with the smoke of cigarette-puffing passengers.
R.J. Reynolds attorney Jonathan Engram told the jury earlier that Fontana, 58, of Boca Raton, suffers only from sarcoidosis, which he said has no known cause.
Fontana's lawsuit is just the first of more than 3,200 trials in which nonsmoking flight attendants will appear in Miami-Dade Circuit Court seeking compensation for the pain and suffering of diseases they said they contracted after exposure to secondhand smoke.
The 3,200-plus flight attendants were all parties to the nationwide class action lawsuit filed against the country's four largest cigarette makers. It was the first class action against tobacco to make it to trial. And it was the first case that tried to hold the cigarette makers accountable for second-hand smoke.
In October 1997, during the first phase of the trial that had lawyers for the flight attendants trying to convince a jury that secondhand smoke caused their clients to get sick, and that the conduct of the tobacco companies made them liable for those illnesses, the two sides settled.
The tobacco companies agreed to put $300 million in a trust to fund research into the hazards of secondhand smoke. And the companies agreed to pay $46 million in legal fees and another $3 million in costs to Stanley and Susan Rosenblatt, the Miami lawyers who represented the flight attendants.
Under terms of the settlement, Big Tobacco waived the statute of limitations so that no matter when any of the flight attendants first started to get sick, they had one year to file a lawsuit against the cigarette makers. Then they could go to court individually and seek compensation for their pain and suffering.
The tobacco companies also agreed that they would have to prove smoke in airline cabins did not cause the flight attendants diseases. Usually the burden of proof would be on the flight attendants to prove second hand smoke made them sick.
The 3,200-plus lawsuits filed by the deadline are all scheduled to be heard in Miami-Dade Circuit Court. A computer divvied up the cases between more than 20 judges who hear the county's civil cases, said Miles McGrane, one of the lawyers representing Fontana.
The estimated time it will take to try all these cases depends upon who is doing the estimating. And it could also depend upon the result of a tobacco company appeal that is now pending before the Third District Court of Appeal.
Last October, Circuit Judge Robert Kaye, who was trying the class action when the two sides settled, issued an interpretation of the agreement in an effort to resolve common issues to all the cases. In that ruling, Kaye said that all the flight attendants had to prove during their trials was that they are sick and that the illness is a result of exposure to the cigarette smoke.
The tobacco lawyers disagree. They contend that the flight attendants also have to prove that the conduct of the tobacco companies makes them liable for the damage caused by cigarette smoke.
But McGrane said the tobacco lawyers conceded that issue when they entered the settlement.
"Those were the issues Stanley Rosenblatt tried for four months (in 1997, before the settlement)," McGrane said. "Then tobacco raised the white flag and said we give up.
"If the tobacco lawyers are correct, then we would have to start from the beginning on more than 3,200 trials in Dade County, and each case would last an excess of four months. That would literally close down the courthouse," he said. "And then it would take 80 years to hear these cases like the defense says. No judge would allow a settlement like that. And Stanley Rosenblatt wouldn't have allowed a settlement like that."
Many of the Miami-Dade judges planning to hear the flight attendant cases have delayed starting any of the trials while they wait for the appeals court to rule, McGrane said.
But Judge Thomas Wilson Jr., accepted Kaye's interpretation of the settlement, allowing Fontana's case to proceed.
Hunter said he expects Fontana's case to take three weeks. At that rate, trying all the cases seems more possible, McGrane said.
"We wanted our first case out to be the biggest, best and strongest case," McGrane said.
He concedes that Fontana's is not that ideal case.
There is no scientific proof that cigarette smoke causes sarcoidosis, a disease that Fontana was diagnosed with as early as 1989, Foley, the radiologist testified.
It is a disease that progressively reduces her ability to breathe in, he said.
And Hunter told the jury Fontana also suffers from sinusitis and emphysema, both found to be caused by cigarette smoke.
Fontana could live out the rest of her normal life if she had only sarcoidosis, Foley testified. It is the combination of the diseases that makes Fontana reliant on the tank of oxygen to which she is constantly tethered, Hunter said. It has landed her on the waiting list for a double lung transplant, he said.
And that is why the lawyers and original flight attendants who brought the lawsuit, including Lanie Blissard, wanted Fontana to be the first toget her day in court. Blissard testified last week that as a flight attendant in the 1970s, she would sit in the back of the plane and not be able to see the cabin because of the cigarette smoke.
Fontana made her first brief appearance in the courtroom Friday. She looked frail sitting in a wheelchair breathing in oxygen from the two-foot tall tank that is her constant companion. The tank equals six hours of breath for Fontana, Hunter said. And those six hours limit the amount of time she will be able to sit in the Miami courtroom But she is expected to be in court again Monday to begin testifying, Hunter said.