SAN FRANCISCO -- The California Supreme Court wrestled Tuesday with whether to bar smokers' lawsuits against tobacco companies if their illnesses were diagnosed prior to 1998, when the state repealed a law that protected the cigarette industry from litiga

The state high court heard arguments in two cases that will establish ground rules for tobacco litigation in California in the future. The rulings, which will be made within 90 days, may spark many more lawsuits or sharply reduce the number of people who can sue for smoking-related illnesses. Dozens of smoking-related lawsuits already are pending in California and will be affected by the rulings. In determining who will be permitted to hold the tobacco industry responsible for illness and death, the court must decide whether the former law that once protected cigarette companies from litigation continues to shield them in some cases. In one of the cases before the court, a now-deceased smoker was diagnosed with lung cancer in 1996, two years before the state repealed the law. The other case involves a lawsuit that was based on actions of the tobacco industry during the years that the companies had immunity from much litigation. Plaintiffs lost both cases in lower courts. Several justices suggested at Tuesday's hearing that the industry shield, passed in 1988 and repealed in 1998, was not an absolute bar to recent suits based on smoking and illnesses that began many years ago. "Do you have to wait for 20 years before you can sue tobacco companies?" Justice Kathryn Mickle Werdegar asked skeptically. Law Wasn't Retroactive, Tobacco Attorney Says Ronald L. Olson, representing Philip Morris Cos., argued that state law prevents smokers from suing the industry for actions that occurred before industry protections were lifted. He contended that the court cannot presume the repeal was retroactive unless the law contained a "clear, unmistakable and unequivocal declaration of retroactivity. "Absent that," Olson said, "there can be no retroactivity." Justice Joyce L. Kennard agreed with Olson. "I think he is absolutely right," she said at the hearing. However, Kennard also raised the possibility that the court could still allow smokers to sue for conduct by cigarette companies that began before the industry protections were passed. Lawyers for smoking victims argued that the industry never enjoyed complete immunity from lawsuits. They argued that the law only shielded tobacco companies if they could show their products were pure and unadulterated, and freely purchased by consumers despite their hazards. Madelyn J. Chaber, representing a smoker who died, said the Legislature repealed the protections because lawmakers realized they had been duped by tobacco companies. The protective legislation was passed at a time when few knew that companies were secretly trying to make cigarettes more addictive, Chaber said. The subsequent repeal showed clearly what the Legislature intended, Chaber said. "The purpose was to reject the wrongs and the fraud that had been committed," she said. Chief Justice Ronald M. George pressed tobacco lawyers to explain why the industry should have been protected from litigation at all if its products contained additives that made them impure and adulterated. H. Joseph Escher III, who represented R.J. Reynolds, denied that companies tried to make smoking more addictive. "The allegations aren't true," he said. Escher also noted that the United States surgeon general warned of the dangers of smoking in 1964, and consumers smoked cigarettes even though they were aware of the hazards. Chaber, however, said the industry put out "a massive disinformation campaign" to discredit the warning. Werdegar observed that even if smokers knew their habit could be dangerous, they may not have been aware that cigarettes were addictive. But Justice Marvin R. Baxter suggested that it might be unfair to hold the industry responsible for conduct that occurred at a time when the state said the industry was largely immune from lawsuits. Baxter questioned whether it would be "fundamentally wrong" for government to declare that certain companies are protected from litigation and to retract that protection after the fact.

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