Tobacco companies pursue data to fight secondhand-smoke suits; University researchers say raw information from study is confidential


LOS ANGELES -- Mobilizing against smoking bans and lawsuits that could cost them billions, tobacco companies are engaged in a far-reaching campaign to discredit evidence that secondhand smoke is harmful to human health.

Nowhere is the strategy more evident than in a legal battle over the evidence that has occupied at least 10 courts, including U.S. District Court in Los Angeles, where it appears likely to be resolved in the industry's favor.

In the latest phase of the discovery battle, Philip Morris is fighting University of Southern California researchers to get access to a single computer disk containing raw data from an influential five-city study, known as the Fontham study, that found a causal link between lung cancer and secondhand smoke.

The company wants to scrutinize the data in hopes of casting doubt on the evidence, which is weaker for second-hand smoke than for some other environmental hazards.

Fontham and similar studies have provided the scientific bedrock for a small but growing wave of secondhand-smoke litigation that the industry aims to head off.

At the same time, cigarette makers are determined to slow the spread of California-style smoking bans to less-regulated areas of the United States and to foreign markets where smokers still light up wherever they choose. Research suggests that smoking restrictions reduce cigarette sales by inducing many smokers to cut down or quit.

Chilling-effect argument

Researchers from USC and other institutions involved in the Fontham study say the industry's relentless pursuit of the data could have a chilling effect on health research.

Citing promises of confidentiality to subjects in the study, they have resisted demands to turn over the data, which cigarette makers say they need to defend themselves in court.

The industry has been largely thwarted in its quest, obtaining only a sliver of the data. But its five-year quest might be about to pay off. In Los Angeles, U.S. District Judge Richard A. Paez will decide whether USC must honor an industry subpoena, and he has ruled for the industry once.

Although tobacco companies have their hands full with litigation over primary smoking -- such as the huge case filed last month by the Justice Department -- secondhand smoke is an emerging threat, in part because the industry's standard defense that victims accepted the risk is doesn't apply.

Many lawsuits expected

Cigarette makers won the only two secondhand smoke cases to be decided by juries, but in 1997 they agreed to settle a class action by airline flight attendants for $349 million. The money was for health research and legal costs, not damages, but the agreement gave flight attendants a one-year window to sue when the settlement was final.

It became final last month, when lawyers opposed to the deal withdrew their challenge. As a result, a flurry of suits by flight attendants is likely over the next 12 months.

Several secondhand-smoke cases are pending, including class actions on behalf of casino workers.

The industry counterattack produced a big victory last year when a federal judge in North Carolina ruled that the Environmental Protection Agency had made procedural and substantive errors in a landmark report in January 1993 concluding that secondhand smoke is a significant cause of lung cancer in nonsmokers. Federal officials have appealed the ruling.

Major research

In fighting to secure the Fontham data, the industry is taking aim at a major piece of research that helped persuade the EPA and other health organizations to declare secondhand smoke a significant hazard.

Named for Elizabeth Fontham, a principal investigator and lead author, the project teamed researchers from Louisiana State University, Emory University, the University of Texas and the California Department of Health Services, along with USC, in a study of nearly 2,000 nonsmoking women in Los Angeles, San Francisco, Houston, New Orleans and Atlanta -- including 1,253 subjects who were healthy and 653 with lung cancer. Their conclusion: Exposure to secondhand smoke raised the lung cancer risk about 30 percent.

The data sought by cigarette makers include medical records and personal information on study subjects, such as work and marital histories, dietary habits and exposure to other toxic substances.

But the researchers say they promised never to divulge that information, and that it would be hard to gain cooperation in future studies if they go back on their word.

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