Widow takes on tobacco giants
David Tompkin was just a teen-ager when he joined the ranks of smokers.
The year was 1950. Tompkin, a student at Cuyahoga Falls High School, was 16 when he picked up his first cigarette, lit it and developed a habit that stretched for the next 15 years before he kicked it cold turkey in 1965.
In between, Tompkin married his high school sweetheart and they raised three daughters. An idyllic life, no doubt, but one that was shattered in 1992 when Tompkin was diagnosed with lung cancer. He died four years later at 61.
Now, in a case mimicking those that have taken place throughout the country in the last decade, his widow, Jocelyn, is pointing the finger of blame at the tobacco companies that manufactured the cigarettes -- Old Gold, Chesterfield, Pall Mall, Tareytons -- for breaching an implied warranty that the products were safe.
The case, filed while Tompkin was still alive in 1994, got under way yesterday in U.S. District Court in Akron.
The tobacco companies -- American Tobacco Co. (now owned by Brown & Williamson), Phillip Morris Inc., Lorillard Tobacco Co. and Liggett Group -- contend Tompkin smoked too few cigarettes for too short a period of time for them to be responsible for his cancer.
They contend his cancer was due to inhaling asbestos during his 40-year career as a bricklayer. A test performed after his autopsy found evidence of asbestos inhalation in his lungs and no evidence that he'd ever been a smoker, they said.
``Mr. Tompkin didn't smoke very much, didn't smoke very long and quit for good at age 30,'' said Walter Cofer, representing Phillip Morris. ``The issue here is what caused the cancer. Cigarette smoking did not.''
Attorney Russell Smith, representing Tompkin, said he will present medical experts to testify that the two causes -- smoking and asbestos -- feed off each other to enhance the chance of cancer.
In addition to pinpointing the cause of the cancer, Smith's case hinges on the contention that the tobacco companies knew long before Tompkin ever picked up his first cigarette that there was a link between smoking and cancer, yet they failed to warn the public about the dangers.
``If we were going to try to capture this case in a few words . . . this might fit: the concept of profit over people,'' Smith told the four-man, five-woman jury -- one short after a woman fell ill early in the day and was excused. ``Choosing profits over people. Refusing to warn. Killing David Tompkin.''
Cofer disputed Smith's remarks. He said Tompkin, in his own words on videotaped testimony that will be played for the jury, said he quit smoking when he noticed he was struggling to breathe when exerting himself.
Also, during the time Tompkin smoked, cigarettes commonly were referred to by the slang names as ``cancer sticks'' or ``coffin nails,'' he said. The link between smoking and lung cancer wasn't hidden, he said.
``He didn't need a warning. He said, `It was the only other thing I was taking in besides oxygen,' '' Cofer said.
The case, now before Judge David Dowd, wound its way through the federal appeals circuit after a 1998 dismissal and eventually was reinstated. It is expected to continue at least three weeks.