Nonsmoking flight attendants who fear that Marie Fontana's courtroom defeat last week dooms their cases should take heart. Most of them still have a good chance against the tobacco industry, and the Boca Raton woman's defeat is not as significant as a vic

A jury award in favor of a plaintiff could still be a "catastrophe for the tobacco companies," said Joseph Daly, a professor at Hamline University Law School in Minnesota who follows tobacco litigation. "It would set up the fear factor in the tobacco companies ... they'd know they've got all these other cases out there and maybe they'd better find a way to get rid of them." But on Thursday, a Miami-Dade jury returned a verdict saying it was not convinced by the facts of the case that second-hand smoke caused the disease in Fontana's lungs that has left her waiting for a double lung transplant. Fontana was the first of more than 3,200 nonsmoking flight attendants who are ailing from diseases they say are caused by secondhand smoke in airline cabins and they want the tobacco companies to pay damages. All the flight attendants were part of a nationwide class action lawsuit named for Norma Broin, one of the first flight attendants to come forward with such a complaint. That case settled in 1997, paving the way for each flight attendant to bring individual damage claims. Upon the loss of their flight attendant cases, Fontana's lawyers quickly pointed out just how unique her case was. She is the only plaintiff to suffer from a lung disease called sarcoidosis. Doctors and scientists are stymied as to what causes this progressive disease. And lawyers for Philip Morris, the country's largest tobacco company, agreed. In fact they capitalized on the unknown nature of the disease when presenting their defense to the jury in the three-week trial. A lawyer for R.J. Reynolds dismissed many of the pending lawsuits as being frivolous, filed by people with nothing more than chronic sinusitis. But it appears that the case next up in the mass of litigation is that of a nonsmoking flight attendant who developed lung cancer, said Miles McGrane, a member of the legal team assembled to represent the flight attendants. Unlike the mysterious sarcoidosis, lung cancer has been linked to cigarette smoke. And as a condition of the 1997 settlement, the juries that hear these cases will be instructed that the link to lung cancer and several other diseases is a fact of law. The flight attendant legal team is confident there are winners in the thousands of cases remaining, despite Big Tobacco's long string of wins against individual plaintiffs. Victory for the plaintiffs, not in just one case but possibly in three or four or five, might get the tobacco companies thinking that they really need to get rid of some of the smaller cases by settling them, Daly said. Victory in flight attendant cases might be the incentive for a whirlwind of similar litigation to be filed by bartenders, waitresses and a whole slew of people who worked in areas where they were involuntarily exposed to secondhand smoke, said Woody Wilner, the Jacksonville lawyer who is now representing Broin in her individual claim. "But the tobacco companies try to find some way to contest everything," said Wilner. "The correct thing would be for the industry to look at the situation and, like any other company, find the moral responsibility to stand behind their product. "If a jury finds that a product causes harm, they should be morally and legally responsible for that and deal with it," Wilner said. "They overload the courts with incessant appeals causing delays instead of resolving the issues like other industries do." McGrane disagreed with Wilner's theory that bartenders, waitresses and other people might benefit from successful flight attendant cases. "A flight attendant's job is unique," McGrane said. "They can't just step outside for fresh air when they are overcome by the smoke." However, McGrane shared Wilner's disdain for the tobacco company's response to litigation. The tobacco companies' philosophy is that they are never going to voluntarily pay damages to anyone claiming to have been sickened by cigarette smoke, he said. Until last month, a cigarette company never paid out a claim brought against it by an individual. Tobacco companies have lost cases to juries, but always prevailed upon appeal. At least that was the case until they faced off against Grady Carter, a Florida retiree who lost a lung to cancer. Carter's lawyer was Wilner, the man representing former flight attendant Broin. In March, after the Florida Supreme Court upheld a jury verdict against R.J. Reynolds, Carter walked away from Wilner's Jacksonville office with a check for more than $1 million of that company's money. Now hoping to persuade the U.S. Supreme Court to hear an appeal, the company has suggested that Carter not spend the money.

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