MARLBORO MAN'S WIDOW SUES PHILIP MORRIS [10/03]


The widow of David McLean, one of the models for the Marlboro Man commercials, has now sued Philip Morris, alleging that her husband died from smoking -- and especially from having to smoke as many as five packs a day when commercials or print ads were being made.

Below is a copy of the legal complaint filed by the plaintiff:


UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS,
MARSHALL DIVISION

LILO MCLEAN, individually and
successor in interest to DAVID
MCLEAN, deceased, and MARK
HUTH, individually

Plaintiffs,

vs.

PHILIP MORRIS, INC.; LIGGETT &
MYERS, INC.; LIGGETT GROUP,
INC.; BROOKE GROUP, INC.; R.J.
REYNOLDS TOBACCO COMPANY;
BROWN & WILLIAMSON TOBACCO
CORPORATION; THE AMERICAN
TOBACCO COMPANY; B.A.T.
INDUSTRIES P.L.C.; LORILLARD
TOBACCO COMPANY;
THE COUNCIL FOR TOBACCO
RESEARCH-U.S.A., INC.; THE
TOBACCO INSTITUTE, INC.

Defendants.

Civil Action 96CV167

COMPLAINT FOR PERSONAL
INJURIES AND WRONGFUL DEATH

1. FRAUD AND DECEIT

2. NEGLIGENT
MISREPRESENTATION

3. MISREPRESENTATION TO
CONSUMERS

4. BREACH OF EXPRESS
WARRANTY

5. BREACH OF IMPLIED
WARRANTY


PLAINTIFF'S ORIGINAL COMPLAINT

COME NOW Plaintiffs, LILO MCLEAN for herself and on
behalf of the ESTATE OF DAVID MCLEAN, and MARK HUTH, AKA
MARK MCLEAN, (hereinafter "Plaintiffs"), and for counts
against Defendants, and each of them, complain and allege
as follows. 


NATURE OF THE CASE

1. In the early 1960s, Philip Morris, Inc., came up with
perhaps the most famous advertising image ever
created--the Marlboro Man. The portrait of a rugged,
adventurous cowboy smoking a cigarette atop a horse
against a scenic mountainous backdrop is used effectively
to this day, making Marlboro the best selling cigarette
in the world. But while the prominent image of the
Marlboro Man lives on, David McLean, the actor who
originally portrayed the Marlboro Man, has died of lung
cancer. Cigarettes killed the Marlboro Man. 

2. By this action, Plaintiffs LILO MCLEAN, the wife of
David McLean, and MARK HUTH, AKA MARK MCLEAN, the son of
David McLean, seek damages for wrongful death and
personal injuries to David McLean based on common law
theories of fraud and deceit, negligent
misrepresentation, misrepresentation to consumers, breach
of express warranty, and breach of implied warranty. 


JURISDICTION

3. This Court has jurisdiction over this action pursuant
to 28 U.S.C. Sec. 1332 (diversity jurisdiction) because
the amount in controversy exceeds $50,000, exclusive of
interest and costs, and because Plaintiffs are a citizens
of a different state than the Defendants. 


VENUE

4. Venue is proper in this District pursuant to 28 U.S.C.
Secs. 1391 and 1392. David McLean purchased and smoked
cigarettes that were manufactured and sold by Defendants
in the Eastern District of Texas. Additionally,
Defendants advertised in this District, received
substantial compensation and profits from the sales of
cigarettes in this District, and made material omissions
and misrepresentations and breached warranties in this
District. 


PARTIES

A. Plaintiffs

5. Decedent David McLean was a resident of Los Angeles,
California. Due to his addiction to nicotine, David
McLean used and could not discontinue the use of
cigarettes, which caused him to die of lung cancer in
1995. 

6. Plaintiff LILO MCLEAN is an individual residing in Los
Angeles, California, and was the wife of David McLean for
over forty years. 

7. Plaintiff MARK HUTH, AKA MARK MCLEAN, is the son of
David McLean residing in Los Angeles, California. 


B. Defendants

8. Defendant Philip Morris Incorporated (hereinafter
"Philip Morris") is a Virginia corporation having its
principle place of business located at 120 Park Avenue,
New York, New York. Defendant Philip Morris manufactures,
advertises and sells Marlboro, Philip Morris, Merit,
Cambridge, Benson & Hedges, Virginia Slims, Alpine,
Dunhill, English Ovals, Galaxy, Players, Saratogo and
Parliament cigarettes throughout the United States and in
Texas. 

9. Defendant Liggett & Myers, Inc., is a Delaware
corporation whose principal place of business is located
at Main and Fuller, Durham, North Carolina. Liggett &
Myers, Inc., is a wholly owned subsidiary of Defendant
Liggett Group, Inc., a Delaware corporation whose
principal place of business is located at 700 West Main
Street, Durham, North Carolina. Defendants Liggett &
Myers, Inc., and Liggett Group, Inc., are subsidiaries of
Defendant Brook Group, Ltd., a Delaware corporation,
whose principal place of business is located at 300 North
Duke Street, Durham, North Carolina. Defendants Liggett
& Myers, Inc., Liggett Group, Inc., and Brook Group,
Ltd., manufacture, advertise, and sell Chesterfield,
Decade, L&M, Pyramid, Dorado, Eve, Stride, Generic, and
Lark cigarettes throughout the United States and Texas. 

10. Defendant R.J. Reynolds Tobacco Company is a New
Jersey corporation whose principal place of business is
located at Fourth and Main Streets, Winston-Salem, North
Carolina. R.J. Reynolds Tobacco Company manufactures,
advertises, and sells Camel, Vantage, Now, Doral,
Winston, Sterling, Magna, More, Century, Bright Rite, and
Salem cigarettes throughout the United States and in
Texas. 

11. Defendant Brown & Williamson Tobacco Corporation is
a Delaware Corporation whose principal place of business
is located at 1500 Brown & Williamson Tower, Louisville,
Kentucky. Defendants Brown & Williamson Tobacco
Corporation manufactures, advertises, and sells Kool,
Barklay, BelAir, Capri, Raleigh, Richland, Laredo, Eli
Cutter, and Viceroy cigarettes throughout the United
States and Texas. 

12. Defendant The American Tobacco Company, Inc., is a
Delaware corporation whose principal place of business is
located at Six Stamford Forum, Stamford, Connecticut. The
American Tobacco Company manufacturers, advertises, and
sells Lucky Strike, Pall Mall, Tareyton, Malibu,
American, Montclair, Newport, misty, Barkely, Iceberg,
Silk Cut, Silva Thins, Sobrana, Bull Durham and Carlton
cigarettes throughout the United States and in Texas. 

13. Defendant B.A.T. Industries P.C.L. is a British
corporation with its principal place of business at
Windsor House, 50 Victoria Street, London. Through a
succession of intermediary corporations and holding
Companies, B.A.T. Industries P.L.C. is the sole
shareholder of Brown & Williamson Tobacco Corporation.
Through Brown & Williamson, B.A.T. Industries P.L.C. has
placed cigarettes into the stream of commerce with the
expectation that substantial sales of cigarettes would be
made in the United States. In addition, B.A.T. Industries
P.L.C. conducted, or through its agents and/or
co-conspirators conducted, critical research for Brown &
Williamson Tobacco Corporation on the issue of smoking
and health. Further, Brown & Williamson Tobacco
Corporation is believed to have sent to England research
conducted in the United States on the issue of smoking
and health in an attempt to remove sensitive and
inculpatory documents from the United States
jurisdiction, and these documents were subject to the
control of B.A.T. Industries P.L.C. B.A.T. Industries
P.L.C. has been involved in the conspiracy described
herein and the actions of B.A.T. Industries P.L.C. have
effected and caused harm in Texas. 

14. Defendant Lorillard Tobacco Company is a Delaware
corporation having its principal place of business
located at One Park New York, New York. Defendants
Lorillard Tobacco Company manufactures, advertises, and
sells Old Gold, Triumph, Satin, Max, Spring, Newport, and
True cigarettes throughout the United States and Texas. 

15. Defendant The Council for Tobacco Research - U.S.A.,
Inc. (hereinafter "CTR"), successor in interest to the
Defendant Tobacco Industry Research Committee ("TIRC"),
is a nonprofit corporation organized under the laws of
the State of New York having its principal place of
business at 900 3rd Avenue, New York, New York 10022. 

16. Defendant The Tobacco Institute, Inc. (hereinafter
"Tobacco Institute")iS a New York corporation, having its
principle place of business located at 1875 "I" Street,
N.W., Suite 800, Washington, D.C. Defendant Tobacco
Institute has since its incorporation in 1958, operated
as the public relations and lobbying arm of the tobacco
companies. 

17. Beginning as early as the 1950s, and continuing until
the present day, Defendants, and each of them, entered
into an agreement with the intentional and unlawful
purpose and effect of restraining and suppressing the
dissemination of information on the addictive effects of
nicotine and the harmful effects of smoking; restraining
and suppressing the research, development, production,
and making of a safer cigarette. In furtherance of
Defendants' conspiracy, Defendants lent encouragement,
substantial assistance, and otherwise aided and abetted
each other with respect to these wrongful acts, and the
other wrongful acts set forth herein. As a result of the
conspiracy, the Defendants are vicariously, and jointly
and severally liable with respect to each of the actions
described herein. 

18. At all times herein mentioned, Defendants, and each
of them, were acting as an agent of each of the other
named and unnamed Defendants, and at tall times herein
mentioned were acting within the scope, purpose and
authority of that agency and with the full knowledge,
permission and consent of each of the other Defendants. 

19. Each Defendants is sued individually as a primary
violator and as a co-conspirator, and the liability of
each Defendants under each of the causes of action
alleged herein arises from the fact that each Defendants
entered into an agreement with the other Defendants and
third parties to pursue, and knowingly pursued, the
common course of conduct to commit or participate in the
commission of all or part of the unlawful acts, tortious
acts, plans, schemes, transactions, and artifices to
defraud alleged herein, including but not limited to: the
manipulation of nicotine content and the big-availability
of nicotine in tobacco products and the
misrepresentation, concealment and suppression of
information regarding the addictive properties of
nicotine, and falsely advertising, marketing and selling
cigarettes as safe, non-addictive, and not containing
levels of nicotine manipulated by Defendants to cause
addiction. 

20. The liability of each Defendants arises from the fact
that each committed and engaged in a conspiracy to
accomplish the commission of all or part of the unlawful
and tortious conduct alleged herein, and intentionally,
knowingly, and with evil motive, intent to injure, ill
will or fraud and without legal justification or excuse,
engaged in the conduct herein alleged. 

21. At all pertinent times, Defendants acted through
their duly authorized agents, servants, and employees who
were then acting in the course and scope of their
employment, and in furtherance of the business of said
Defendants, with the knowledge, ratification and consent
of their officers, directors and managing agents. 

22. Defendants listed above and their predecessors and
successors in interest did business in the State of Texas
and the Eastern District of Texas, made contracts to be
performed in whole or in part in Texas, and manufactured,
tested, sold, offered for sale, supplied or placed in the
stream of commerce, or, in the course of business,
materially participated with others in so doing, tobacco
products which the Defendants knew to be dangerous and
hazardous and which the Defendants knew would be
substantially certain to cause injury to the general
public. Defendants committed and continue to commit
tortious and other unlawful acts in the State of Texas
and in the Eastern District of Texas. 

23. The Defendants, and their predecessors and successors
in interest, performed such acts as were intended to and
did result in the sale and distribution of tobacco
products in the State of Texas, and the consumption of
tobacco products by David McLean and by citizens and
residents of the State of Texas. 

24. The term "addictive", used in this Complain is
synonymous and interchangeable with the term
"dependence-producing." Both terms refer to the
persistent and repetitive intake of psychoactive
substances despite evidence of harm and a desire to quit.
Some scientific organizations have replaced the term
"addictive" with "dependence-producing" to shift the
focus to dependent patters of behavior and away from the
moral and social issues associated with addiction. Both
terms are equally relevant for purposes of understanding
the drug effects of nicotine. 


FACTUAL ALLEGATIONS

A. David McLean's Use of Cigarettes

25. David McLean began smoking cigarettes at the age of
12 and was almost immediately addicted to the nicotine in
tobacco. Because of his addiction to nicotine, Mr. McLean
continued smoking cigarettes until he died at age 73. 

26. Due to his addiction to nicotine, David McLean smoked
cigarettes everyday. Although he tried to quit smoking
numerous times, his addiction to nicotine prevented him
from doing so. 

27. During the time he became addicted to the nicotine in
cigarettes, David McLean did not know the adverse health
consequences of smoking. Until 1964, cigarette packages
and advertisements contained no warning of the adverse
health effects of tobacco. David McLean was led to
believe that smoking cigarettes was not harmful to his
health or addictive. 

28. During his long history of smoking, David McLean
primarily smoked Marlboro and Chesterfield brand
cigarettes. 

29. In the early 1960s, already a smoker for over twenty
years, David McLean was hired to portray the Marlboro Man
in television and print advertising. During the taping of
the commercials, David McLean was obligated to smoke
Marlboro cigarettes. The commercials were very carefully
orchestrated, and David McLean was required to smoke up
to five packs per take, in order the get the ashes to
fall a certain way, the smoke to rise a certain way, and
the hand to hold the cigarette in a certain way. 

30. Even after his portrayal of the Marlboro Man, David
McLean continued to smoke Marlboro cigarettes, and he
continued to receive boxes of Marlboro cigarettes as
gifts. 

31. In approximately 1985, David McLean began to suffer
from emphysema due to smoking. 

32. In approximately 1993, during a pre-operative
check-up for back surgery, David McLean's doctors found
a tumor in his right lung. After further review, David
McLean was diagnosed with lung cancer. Later that year,
he underwent surgery to remove the tumor and part of the
lung. 

33. Initially, doctors believed that the tumor had been
fully removed. But in 1995, doctors discovered that
cancer was still present in his right lung. Later that
year, doctors discovered that the cancer had spread to
his brain and his spine. Chemotherapy and other
treatments administered to David McLean were
unsuccessful. 

34. In October of 1995, due to cancer caused by long
years of smoking cigarettes, David McLean died, leaving
a widow and fatherless son. 


B. The Industry Conspiracy On Smoking and Health:
Deceiving the Public About Disease and Death 

35. Through a fraudulent course of conduct that has
spanned decades, Defendants have manufactured, promoted,
distributed, or sold tobacco products to millions of
consumers, including David McLean, knowing, but denying
and concealing, that their tobacco products contain a
highly addictive drug, known as nicotine, and have,
unbeknownst to the public, controlled and manipulated the
amount and big-availability of nicotine in their tobacco
products for the purpose and with the intent of creating
and sustaining addiction. 

36. The Tobacco Companies reap enormous profits from
their manufacture and sale of cigarettes to consumers
throughout the United States, including the State of
Texas. The Tobacco Companies' earnings for the last year
alone exceeded six billion dollars. The Tobacco
Companies, make, advertise and sell cigarettes despite
their knowledge of the following facts: More than 10
million Americans have died as a result of smoking
cigarettes; almost one death in every five is due to a
smoking- related illness; the leading cause of
preventable death in the United States today is smoking
cigarettes; smoking causes cardiovascular disease and is
responsible for approximately one third of all heart
disease deaths; smoking causes almost all lung and throat
cancer deaths; smoking causes various pulmonary diseases,
including emphysema; smoking causes stillbirths and
neonatal deaths among the babies of mothers who smoke;
and cigarettes may contain any number of approximately
700 additives, including a number of toxic and dangerous
chemicals. 

37. Despite the overwhelming weight of scientific
evidence that smoking cigarettes and using smokeless
tobacco pose serious health risks, and despite the
gruesome statistical legacy left by the tobacco industry,
approximately 50 million Americans continue to smoke
cigarettes, including 3,000 new teenage smokers daily,
and millions more continue to use smokeless tobacco
because they are addicted to these products. More
specifically, they are addicted to nicotine, the drug in
tobacco that causes an addiction similar to that suffered
by users of heroin and cocaine . 

38. Cigarettes contain nicotine. Nicotine is an addictive
substance and the use of cigarettes results in addiction
to them. Nicotine causes compulsive use of cigarettes,
despite knowledge that they are harmful, if not lethal;
nicotine has a psychoactive (mood-altering) effect in the
brain; and, nicotine invokes what is called "reinforcing
behavior," causing continued use of the
nicotine-containing products. Cigarette smokers suffer an
inability to quit, notwithstanding a desire to do so, and
those who do quit (or attempt to) endure withdrawal
symptoms such as headaches, insomnia, depression, lack of
concentration, and anxiety. 

39. The addictive power of nicotine is further
illustrated by these statistical facts: at least
two-thirds of adults who smoke say they wish they could
quit; 17 million Americans try to quit smoking each year,
but fewer than 1 out of 10 succeed; for every smoker who
quits, 9 try and fail; 8 out of 10 smokers say they wish
they had never started smoking; among smokers who suffer
heart attack, 38% resume smoking while they are still in
the hospital; even when a smoker has his or her larynx
removed, 40% try smoking again; 70% of young people ages
12 to 18 who smoke say they believe they are already
dependent on cigarettes; and 40% of high school seniors
who smoke regularly have tried to quit and failed.
According to David A. Kessler, M.D., Commissioner of the
United States Food and Drug Administration, "Once they
have started regularly, most smokers are in effect
deprived of the choice to stop smoking . . . . Seventeen
million Americans try to quit smoking each year. But,
more than 15 million are unable to exercise that choice
because they cannot break their addiction to cigarettes."



C. Knowledge That Nicotine Causes Addiction 

40. The fact that nicotine delivered by tobacco products
is highly addictive was carefully and comprehensibly
documented in the 1988 Surgeon General's Report, "The
Health Consequences of Smoking: Nicotine Addiction." The
major conclusions contained in this report are (a)
"Cigarettes and other forms of tobacco are addicting;"
(b) "Nicotine is the drug in tobacco that causes
addiction;" and (c) "The pharmacologic and behavioral
processes that determine tobacco addiction are similar to
those that determine addiction to drugs such as heroin
and cocaine." Likewise, in a 1988 report addressing the
health effects of smokeless tobacco, the World Health
Organization concluded: "[T]here is ample evidence that
the blood nicotine levels of smokeless tobacco users were
as high as or even higher than those found in many
cigarette smokers. Its continued use, therefore, does
cause addiction and dependence in humans." 

41. Nicotine is now recognized as an addictive substance
by such major medical organizations as the Office of U.S.
Surgeon General, the World Health Organization, the
American Medical Association, the American Psychiatric
Association, the American Psychological Association, the
American Society of Addiction Medicine, the American
Public Health Association, and the Medical Research
Counsel in the United Kingdom. The National Institute on
Drug Abuse has called cigarette smoking the most common
example of drug dependence in the United States. 

42. Despite the recent recognition of nicotine's
addictive properties by these and other organizations,
the Tobacco Companies and their distributors continue to
misinform the general public. Although it now appears
that the Tobacco Companies have known for decades, on the
basis of their own long-concealed research and testing,
that nicotine is addictive, they have denied, and have
continued to deny, that nicotine is addictive. The
Tobacco Companies' insistence and affirmative denial that
nicotine is addictive, coupled with their pervasive
advertising, promotional and public relations strategy,
is designed to and has effectively nullified the public's
meaningful appreciation of the nature and extent of
nicotine dependence. Specifically, the Tobacco Companies,
emphasis on smoking as a voluntary personal choice and
its positive social benefits misleads the public,
especially the impressionable young people, into thinking
that smoking may be stopped as easily as started.
Knowledge of addiction then may thus come too late, when
the phenomenon of addiction prevents or complicates any
"personal choice" to quit. 


1. The Tobacco Companies' Understanding of Nicotine
Addiction. 

43. The Defendants know of the difficulties smokers
experience in quitting smoking and of the tendency of
addicted individuals to focus on any rationalization to
justify their continued smoking. The Defendants exploit
this weakness and capitalize upon the known addictive
mature of nicotine. Nicotine addiction guarantees a
market for cigarettes. The addictive nature of the
nicotine in cigarettes virtually eliminates personal
choice in those who become addicted. 

44. By no later than the early 1960s, and perhaps as
early as the 1940s, the Tobacco Companies were fully
aware, based on their own scientific research, that
nicotine was an addictive substance and that regular
cigarette smoking results in nicotine dependence. For
example, an internal Philip Morris report from 1971
describes the difficulties a smoker has in stopping
smoking one they are addicted to nicotine. "Even after
eight months, quitters were apt to report having neurotic
symptoms, such as feeling depressed, being restless and
tense, being ill-tempered, having a loss of energy, being
apt to doze off, etc. They were further troubled by
constipation and weight gains . . . ." 

45. An internal report written in 1973 by William J.
Dunn, Jr., a senior scientist with Philip Morris, says
the following: 


The primary incentive to cigarette smoking is the
intermediate salutatory effect of inhaled smoke upon body
function . . . . As with eating and copulating, so it is
with smoking. The physiological effects serve as the
primary incentive: all other incentive are secondary . .
. . Without nicotine, the argument goes, there would be
no smoking. Some strong evidence can be marshaled to this
argument: 

(1) No one has ever become a cigarette smoker by smoking
cigarettes without nicotine. 

(2) M st of the physiological responses to inhaled smoke
have been shown to be nicotine-related. 


46. Another internal Philip Morris document, this one
from 1981, acknowledges that: 


Nicotine is a powerful pharmacological agent with
multiple sites of action and may be the most important
component of cigarette smoke. Nicotine and an
understanding of its properties are important to the
continued well being of our cigarette business since this
"alkaloid has been cited often as the reason for smoking"
and theories have been advanced for "nicotine titration"
by the smoker. Nicotine is known to have effects on the
central nervous system as influencing memory, learning,
pain perception, response to stress, and level of
arousal. 


47. Additional documents are, likewise, replete with
evidence of such knowledge: 

a. In 1962, Sir Charles Ellis, scientific advisor to the
board of directors of British American Tobacco Company
("BATCO"), Brown & Williamson's parent company, stated at
a meeting of worldwide subsidiaries, that "smoking is a
habit of addiction" and that "[n]icotine is not only a
very fine drug, but the technique of administration by
smoking has considerable psychological advantages ..." He
subsequently described Brown Williamson as being "in the
nicotine rather than the tobacco industry." 

b. A research report from 1963 commissioned by Brown &
Williamson states that when a chronic smoker is denied
nicotine: "A body left in this unbalanced state craves
from renewed drug intake in order to restore the
physiological equilibrium. This unconscious desire
explains the addiction of the individual to nicotine." No
information from that research has ever been voluntarily
disclosed to the public; in particular, it was not shared
with the committee that was preparing the first Surgeon
General report and hence was not reflected in that
report. 

c. Addison Yeaman, General Counsel at Brown & Williamson,
summarized his view about nicotine in an internal
memorandum also in 1963: "Moreover, nicotine is
addictive. We are, then, in the business of selling
nicotine, an addictive drug, effective in the release of
stress mechanisms." 

d. Internal reports prepared by Philip Morris in 1972 and
the Philip Morris U.S.A. Research Center in March 1978
demonstrate Philip Morris' understanding of the role of
nicotine in tobacco use: "We think that most smokers can
be considered nicotine seekers, for the pharmacological
effect of nicotine is one of the rewards that come from
smoking. When the smoker quits, he forgoes his accustomed
nicotine. The change is very noticeable, he misses the
reward, and so he returns to smoking." 

e. From 1940-1970, the American Tobacco Company conducted
its own nicotine research, funding over 90 studies on the
pharmacological and other effects of nicotine on the
body. This research constitutes 80% of all biological
studies funded by the company over this period. In 1969,
the American Tobacco Company even test marketed a
nicotine enriched cigarette in Seattle, Washington. 

f. In a 1972 document entitled "RJR Confidential Research
Planning Memorandum on the Nature of the Tobacco Business
and the Crucial Role of Nicotine Therein," an R.J.
Reynolds executive wrote: "In a sense, the tobacco
industry may be thought of as being a specialized, highly
ritualized, and stylized segment of the pharmaceutical
industry. Tobacco products uniquely contain and deliver
nicotine, a potent drug with a variety of physiological
effects." 

48. The industry's recognition of the extent to which
nicotine--and not tobacco--defines its product is
illustrated in a 1972 Philip Morris report on a CTR
conference, which states: 

a. "As with eating and copulating, so it is with smoking.
The physiological effect serves as the primary incentive,
all other incentives are secondary. The majority of the
conferees would go even further and accept the
proposition that nicotine is the active constituent of
cigarette smoke. Without nicotine, the argument goes,
there would be no smoking." 

b. "Why then is there not a market for nicotine per se,
eaten, sucked, drunk, injected, inserted or inhaled as a
pure aerosol? The answer, and I feel quite strongly about
this, is that the cigarette is in fact among the most
awe-inspiring examples of the ingenuity of man. Let me
explain my conviction. The cigarette should be conceived
not as a product but as a package. The product is
nicotine." 

c. "Think of the cigarette pack as a storage container
for a day's supply of nicotine ... Think of the cigarette
as a dispenser for a dose unit of nicotine." 

49. Documents from a BATCO study called Project Hippo,
uncovered only in May 1994, show that as far back as
1961, this cigarette company was actively studying the
physiological and pharmacological effects of nicotine.
Project Hippo reports were circulated to other U.S.
cigarette manufacturers and to TIRC, demonstrating that
at least some of the industry's nicotine research was
shared. BATCO sent the reports to officials at Brown &
Williamson and R.J. Reynolds, and circulated a copy to
TIRC with a request that TIRC "consider whether it would
help the U.S. industry for these reports to be passed on
to the Surgeon General's Committee." 

50. Similarly, an RJR-MacDonald Marketing Summary Report
from 1983 concluded that the primary reason people smoke
"is probably the physiological satisfaction provided by
the nicotine level of the product." 

51. To this day, the cigarette manufacturers have
concealed from he public and public health officials
their extensive knowledge of the addictive properties of
nicotine and its critical role in smoking and continue to
contend that nicotine is not addictive and that
cigarettes are not harmful to health. 

52. As recently as December 1995, the Wall Street Journal
reported on an internal Philip Morris draft document
analyzing the competitive market for nicotine products
for the years 1990-1992. The report describes the
importance of nicotine: "Different people smoke for
different reasons. But the primary reason is to deliver
nicotine into their bodies." It is a physiologically
active, nitrogen-containing substance. Similar organic
chemicals include quinine, cocaine, atropine and
morphine. While each of these substances can be used to
affect human physiology, nicotine has a particularly
broad range of influence. During the smoking act,
nicotine is inhaled into the lungs in smoke, enters the
bloodstream and travels to the brain in about eight to
ten seconds." 

53. Recently disclosed handwritten notes dated 1965 from
Ronald A. Tamol, who until 1993 was Philip Morris,
Director of Research and Brand Development, refer to
"minimum nicotine ... to keep the normal smoker hooked." 

54. The cigarette manufacturers have affirmatively
misrepresented to consumers and to Congress the role of
nicotine in tobacco use. Even today, Brown & Williamson,
R.J. Reynolds and the Tobacco Institute continue to claim
that nicotine is important in cigarettes for taste and
"mouth-feel." However, tobacco industry patents
specifically distinguish nicotine from flavorants and an
R.J. Reynolds book on flavoring tobacco, while listing
approximately a thousand flavorants, fails to include
nicotine as a flavoring agent. The cigarette industry has
actually concentrated on developing technologies to mask
the acrid flavor of increased levels of nicotine in
cigarettes. 

55. Patent filings by the Tobacco Companies further
reveal their knowledge of the addictive quality of
nicotine. In a 1971 patent filing, Philip Morris
discusses maintaining the "nicotine content at a
sufficiently high level to provide the desired
physiological activity." Years of numerous patent filings
by the Tobacco Companies underscore the industry's
knowledge that nicotine is addictive. 

56. Despite their knowledge that cigarette smoking is as
a result of nicotine, extremely addictive, the Tobacco
Companies still continue to deny that smoking is
addictive. Through their individual advertising and
public relations campaigns, and collectively through the
work of the Tobacco Institute, the Tobacco Companies have
successfully promoted and sold cigarettes by concealing
and misrepresenting their highly addictive nature. The
Congressional Subcommittee on Health and Environment
commenced a public hearing March 25, 1994, on the
potential regulation of nicotine-containing products
under the Federal Food, Drug and Cosmetic Act. In the
wake of the March 5, 1994, Congressional Hearings,
spokespeople for the Tobacco Institute and the Tobacco
Companies have denied in nationwide television broadcasts
and print publications that nicotine is addictive. On
April 14, 1994, the chief executives of each of the
Tobacco Companies testified under oath before Congress
and told the general public that nicotine is not
addictive. Following the appearance of the Tobacco
Companies' executives before Congress, Philip Morris took
out full-page newspaper advertisements that stated in
part: "Philip Morris does not believe cigarette smoking
is addictive." 


2. The Waxman Hearings.

57. On February 25, 1994, David A. Kessler, M.D.,
Commissioner of the FDA, sent a letter to Scott D.
Bailin, Esq., Chairman of the Coalition on Smoking and
Health, asserting: "Evidence brought to out attention is
accumulating that suggests that cigarette manufacturers
may intend that their products contain nicotine to
satisfy an addiction on the part of some of their
customers. The possible inference that cigarette vendors
intend cigarettes to achieve drug effects in some smokers
is based on mounting evidence we have received that: (1)
the nicotine ingredient in cigarettes is a powerfully
addictive agent and (2) cigarette vendors control the
levels of nicotine that satisfy this addiction." 

58. In response to Kessler's letter, on March 15, 1994,
in a letter to The New York Times, James W. Johnston,
Chairman and Chief Executive Officer of R.J. Reynolds,
continued to assert that nicotine was not addictive.
Johnston based his assertion upon the success rate of
American adults who had quit smoking. 

59. On March 25, 1994, David Kessler testified before the
Waxman Subcommittee that "the cigarette industry has
attempted to frame the debate on smoking as the right of
each American to choose. The question we must ask is
whether smokers really have that choice." Dr. Kessler
stated: 

a. "Accumulating evidence suggests that cigarette
manufacturers may intend this result--that they may be
controlling the levels of nicotine in their products in
a manner that creates and sustains an addiction in the
vast majority of smokers." 

b. "We have information strongly suggesting that the
amount of nicotine in a cigarette is there by design." 

c. "[T]he public thinks of cigarettes as simply blended
tobacco rolled in paper. But they are much more than
that. Some of today's cigarettes may, in fact, qualify as
high technology nicotine delivery systems that deliver
nicotine in precisely calculated quantities--quantities
that are more than sufficient to create and to sustain
addiction in the vast majority of individuals who smoke
regularly." 

d. "[T]he history of the tobacco industry is a story of
how a product that may at one time have been a simple
agricultural commodity appears to have become a nicotine
delivery system." 

e. "[T]he cigarette industry has developed enormously
sophisticated methods for manipulating nicotine levels in
cigarettes." 

f. "In many cigarettes today, the amount of nicotine
present is a result of choice, not chance. [S]ince the
technology apparently exists to reduce nicotine in
cigarettes to insignificant levels, why, one is led to
ask, does the industry keep nicotine in cigarettes at
all?" 

60. On June 21, 1994, Dr. Kessler told the Waxman
Subcommittee that FDA investigators had discovered that
Brown & Williamson had developed a high nicotine tobacco
plant, which the company called Y-1. This discovery
followed Brown & Williamson's flat denial to the FDA on
May 2, 1994, that it had engaged in "any breeding of
tobacco for high or low nicotine levels." 

61. When four FDA investigators visited the Brown &
Williamson plant in Macon, Georgia on May 3, 1994, Brown
& Williamson officials denies that the company was
involved in breeding tobacco for specific nicotine
levels. 

62. In fact, in a decade-long project, Brown & Williamson
secretly developed a genetically engineered tobacco plant
with a nicotine content more than twice the average found
naturally in flue-cured tobacco. Brown & Williamson took
out a Brazilian patent for the new plant, which was
printed in Portuguese. Brown & Williamson and a Brazilian
sister company, Souza Cruz Overseas, grew Y-1 in Brazil
and shipped it to the United States where it was used in
five Brown & Williamson cigarette brands, including three
labelled "light." When the company's deception was
uncovered, company officials stated that close to four
million pounds of Y-1 were stored in company warehouses
in the United States. 

63. As part of its cover-up, Brown & Williamson even went
so far as to instruct the DNA Plant Technology
Corporation of Oakland, California, California, which had
developed Y-1 to tell FDA investigators that Y-1 had
"never [been] commercialized." Only after the FDA
discovered two United States Customs Service invoices
indicating that "more than a million pounds' of Y-1
tobacco had been shipped to Brown & Williamson on
September 21, 1992, did the company admit that it had
developed the high-nicotine tobacco. 

64. The general public is only now beginning to learn
about the measures taken by the Tobacco Industry to
conceal the truth about nicotine. On March 31, 1994,
Congressman Waxman released a copy of a previously secret
Philip Morris funded research study substantiating the
addictive nature of nicotine. Philip Morris scientists,
upon conducting tests, found strong evidence that
nicotine might be addicting, which suggested further
testing should be done. The experiment used in this study
- self administration by rats - is one of the primary
tests used by the U.S. Food and Drug Administration, the
U.S. Drug Enforcement Agency, and World Health
Organization to determine whether a drug is addictive.
The research was submitted in 1983 to the scientific
journal Psychopharmacology and was accepted for
publication. Prior to publication, the journal was
notified by the scientist that the article was being
withdrawn "due to factors beyond [his] control." The
scientist subsequently left Philip Morris and in 1986
resubmitted a revised version of the article to the
journal. After the article was accepted for publication
again, the scientist was forced to withdraw it by Philip
Morris. 

65. If the Tobacco Companies had disclosed their
knowledge of the addictive nature of nicotine when they
first acquired this knowledge then the public would have
learned about the addictiveness of nicotine many years
ago. As a result, the scientific and medical community
would have had access to critical Tobacco Industry
secrets on the subject which would have resulted in a
more rapid popular determination and consensus on the
subject. The Tobacco Industry concealed and continues to
attempt to conceal the truth about nicotine in order to
sustain the additions of existing cigarette smokers and
to "hook" thousands of new smokers every day, so that the
Tobacco Companies can continue to profit at the expense
of the lives and health of the general public. 

66. Not only does the Tobacco Industry know and conceal
that nicotine is an additive drug, the Plaintiffs are
informed and believe that the Tobacco Companies intend
that their products contain sufficient nicotine to
satisfy additional on the part of smokers and therefore
control the levels of nicotine in these products to
create and sustain the addition. It is this scheme to
deceive the general public that enables the Tobacco
Companies to see its life-threatening products to tens of
millions of Americans as their captive customers. 


3. The Tobacco Companies Manipulate the Level of Nicotine
in Cigarettes With the Intent and for the Purpose of
Creating and Sustaining Addictions to their Products. 

67. Plaintiffs are informed and believe that the Tobacco
Companies control or manipulate, the levels of nicotine
in cigarettes. The Tobacco Companies developed technology
years ago to remove nicotine from tobacco and to control
precisely the amount of nicotine in cigarettes.
Nevertheless, the Tobacco Companies continues to
manufacture, market and sell their products with levels
that are sufficient to produce and sustain addition.
Rather than remove nicotine from cigarettes and smokeless
tobacco--and hence remove the addictive drug contained
therein--the Tobacco Companies add nicotine to their
cigarettes through a variety of methods to maintain
levels of nicotine sufficient to make their cigarettes
additive to consumers. 

68. The Tobacco Companies prepare a substantial portion
of the contents of their cigarettes through what is
called a "Reconstitution process." Prior to the 1940s the
waste products from cigarettes--tobacco leaf scraps and
stems, dried tobacco dust, adhesive reinforcing fiber,
mineral ash modifiers, humectant, and some other
inexpensive materials--were discarded. Thereafter the
tobacco companies began to sue these previously unusable
materials to make reconstituted tobacco. As part of the
process, the Tobacco Companies removed ingredients from
these materials at an early stage of the process and
replaced some of the nicotine in later stages. The
reconstitution process allows the Tobacco Companies to
manufacture cigarettes at a lower costs by using less
tobacco which is the most expensive part of the cigarette
and by making up the difference in content with the
reconstituted tobacco. By removing the nicotine and then
carefully replacing as much nicotine as desired the
Tobacco Companies are able to control the precise amount
of nicotine in cigarettes. 

69. LT Industries, a subsidiary of Kimberly-Clarke
Corporation specializes in the tobacco reconstitution
process and, as LT says in helping tobacco companies
"control" their nicotine. The LT reconstitution process
in the most widely used in the world. An
LT-advertisement, entitled "More Nicotine, Or Less,"
published in tobacco trade publications states: 


Nicotine levels are becoming a growing concern to the
designers of modern cigarettes, particularly those with
lower "tar" deliveries. The Kimberly-Clarke tobacco
reconstitution process, used by LT industries, permits
adjustments of nicotine 3 to your exact requirements.
These adjustments of nicotine to your exact requirements.
These adjustments will not affect the other important
properties of customized reconstituted tobacco produced
at LT Industries: low tar delivery, high filling power,
high yield, and the flexibility to convey organoleptic
modifications. We can help you control your tobacco. 


In fact, the process described in the LT advertisement
can raise the level of nicotine beyond that which is
naturally found in tobacco materials. In 1985, a Tobacco
Journal article describing the LT process states: "Those
standard reconstituted Tobacco Products contained 0.7-1.0
nicotine. LT Industries offers the possibility of
increasing the nicotine content of the final sheet to a
maximum of 3.5% . . . A dramatic increase in tobacco
taste and smoke is noted in the nicotine-fortified
reconstituted tobacco." 

70. Without informing the general public the Tobacco
Companies have long viewed cigarettes in terms of their
nicotine delivery function. For example, Philip Morris'
William L. Dunn, Jr., wrote in a 1973 internal
memorandum: 


Why then is there not a market for nicotine per use, to
be eaten, sucked, drunk, injected, inserted or inhaled as
a pure aerosol? The answer, and I feel quite strongly
about this, is that the cigarette is in fact among the
most awe-inspiring examples of the ingenuity of man . .
. . 

The cigarette should be conceived not as a product, but
as a package. The product is nicotine. The cigarette is
but one of many package layers. There is the carton,
which contains the pack, which contains the cigarette,
which contains the smoke. The smoke is the final package.
The smoker must rip off all of these packaged layers to
get to that which he seeks, Think of the cigarette as a
storage container for [a] day's supply of nicotine . . .
Think of the cigarette as dispenser for a dose unit of
nicotine . . . Think of a puff of smoke as the vehicle
for nicotine . . . Smoke is beyond question the most
optimized vehicle of nicotine and the cigarette the most
optimized dispenser of smoke . . . . 


Likewise, a 1981 Lorillard study indicates that "current
research is directed toward increasing the nicotine
levels while maintaining or marginally reducing the "tar"
deliveries." 

71. Evidence of the Tobacco Industry's intent and ability
to manipulate nicotine in cigarettes at a sufficiently
high level to provide the "desired physiological
activity", is found in years of Tobacco Company patent
applications. Tobacco Company patents illustrate an
intent and ability by the Tobacco Companies to control
the amount of nicotine in cigarettes; to provide desired
physiological effects; to increase nicotine content in
cigarettes by adding nicotine to various parts of the
cigarette; to manipulate nicotine levels in cigarettes;
and to manipulate the rate at which the nicotine is
delivered in the cigarettes. For example: 


A. A 1966 Philip Morris patent application discusses an
invention that "permits the release into tobacco smoke,
in controlled amounts, of desirable flavorants, as well
as the release, in controlled amounts and when desired,
of nicotine into tobacco smoke. 

B. A 1971 Philip Morris patent states:

It has long been known in the Tobacco Industry that in
order to provide a satisfactory smoke, it is desirable to
maintain a nicotine content of Tobacco Products at a
uniform level. However, it is difficult to accomplish
this result since the nicotine content of tobacco varies
widely, depending on the type of tobacco and the
condition under which the tobacco was grown. 

Maintaining the nicotine content at a sufficiently high
level to provide the desired physiological activity,
taste, and odor which this material imparts to the smoke,
without raising the nicotine content through an
undesirably high legal can thus be seen to be a
significant problem in the tobacco art. The addition of
nicotine to tobacco in such a way that it remains inert
and stable in the product, and yet is released in a
controlled amount into the smoke aerosol when the tobacco
is pyrolyzed, is a result which is greatly desirable. 

The present invention provides a solution to this
longstanding problem and results in accurate control of
the nicotine which is released in . tobacco smoke. By
employing the nicotine- releasing agents in methods of
the present invention, it is possible to incorporate
exact amounts of nicotine into tobacco composition, which
will remain constant over extended periods of time and
which will ultimately yield a smoke containing a
controlled amount of nicotine. 

C. Another 1971 Philip Morris patent application
discusses a design to increase the nicotine content in
the smoke of the tobacco product by adding nicotine. One
of the expressed objects of the invention was to "provide
an agent for the treatment of tobacco smoke whereby
nicotine is easily released under controlled amounts."
The same Philip Morris application explains that the
proposed invention "is particularly useful for the
maintenance of the proper amount of nicotine in tobacco
smoke," and notes that "previous efforts have been made
to add nicotine to Tobacco Products when the nicotine
level in the tobacco was undesirably low." 

D. A 1980 Loews' Corporation patent application discusses
a process that "enables the manipulation of the nicotine
content of tobacco materials such as cut leaf and
reconstituted leaf by removal of nicotine from a suitable
nicotine tobacco source, or by the addition of nicotine
to a low nicotine material." 

E. A 1986 R.J. Reynolds Tobacco Company patent indicates
that the Tobacco Companies can precisely manipulate the
rate at which the nicotine is delivered in the cigarette:
"It is a further object of this invention to provide a
cigarette which delivers a larger amount of nicotine in
the first few puffs of the cigarette than in the last few
puffs." 

F. A 1991 R.J. Reynolds Tobacco Company patent
application states that "processed tobaccos can be
manufactured under conditions suitable to provide
products having various nicotine levels." 


72. Information about the Tobacco Companies, manipulation
of the nicotine level in cigarettes, with the intent and
purpose of creating and sustaining addictions to their
cigarettes has only recently come to the public's
attention. An ABC television show, "Day One," broadcast
an episode February 28, 1994, entitled
"Smokescreen--Cigarette Companies and Nicotine Level,"
during which "Day One's investigators reported their
findings that the Tobacco Companies have been carefully
controlling the levels of nicotine in their products for
years. "Day One's" investigators reported that, to verify
that nicotine is being added to reconstituted tobacco in
cigarettes, they went to the American Health Foundation
which analyzed the reconstituted tobacco portion of
several brands of R.J. Reynolds Tobacco Company
cigarettes. According to "Day One," the samples tested
had up to 70% of the nicotine that would be found in
regular tobacco. 

73. During the March 25, 1994, Congressional Hearings,
FDA Commissioner Dr. David Kessler testified that
accumulating evidence suggests that the Tobacco Companies
"may be controlling smokers' choice by controlling the
level of nicotine in their products in a manner that
creates and sustains an addiction in the vast majority of
smokers." Dr. Kessler went on to say that some of
"today's cigarettes may, in fact, qualify as high
technology nicotine delivery systems that deliver
nicotine in precisely calculated quantities - quantities
that are more than sufficient to cease and sustain an
addiction in the vast majority of individuals who smoke
regularly." During the March 25, 1994, hearing, Dr.
Kessler and others presented evidenced of the Tobacco
Companies' manipulation of nicotine levels, including
reference to internal memoranda and more than 30 industry
patents. 

74. Just as the Tobacco Companies deny that the nicotine
contained in cigarettes is additive, through their
individual advertising and public relations campaigns and
collective through The Tobacco Institute, the Tobacco
Companies have denied unequivocally that they are engaged
in controlling the level of nicotine in cigarettes for
the purpose of developing and sustaining addiction to
their products. Since the "Day One" program broadcast by
ABC and the March 24, 1994, Congressional Hearings,
spokespeople for The Tobacco Institute and the Tobacco
Companies have in nationwide television broadcasts and
publications denied all the charges that the Tobacco
Companies manipulate nicotine levels in cigarettes.
During their appearance before Congress on April 14,
1994, the chief executives of each of the Tobacco
Companies testified that their companies do not
manipulate nicotine levels or otherwise add nicotine to
their cigarettes to create or sustain addition to their
products. 

75. The nicotine content of the raw tobacco is not the
only variable manipulated by the cigarette manufacturers
to deliver a pharmacologically active dose of nicotine to
the smoker. Cigarettes are not simply cut tobacco rolled
into a paper tube. Modern cigarettes as sold in
California are painstakingly designed and manufactured to
control nicotine delivery to the smoker. 

76. For example, cigarette manufacturers add several
ammonia compounds during the manufacturing process which
increase the delivery of nicotine and almost double the
nicotine transfer efficiency of cigarettes. 

77. Brown & Williamson publicly denies that the use of
ammonia in the processing of tobacco increases the amount
of nicotine absorbed by the smoker. Nevertheless, the
company's own internal documents revealed that it and its
rivals use ammonia compounds to increase nicotine
delivery. A 1991 Brown & Williamson confidential blending
manual states: "Ammonia, when added tobacco blend, reacts
with the indigenous nicotine salts and liberates free
nicotine . . . . As the result of such change the ratio
of extractable nicotine to bound nicotine in the smoke
may be altered in favor of extractable nicotine. As we
know, extractable nicotine contributes to impact in
cigarette smoke and this is how ammonia can act as an
impact booster." According to Brown & Williamson manual,
all American cigarette manufacturers except Liggett use
ammonia technology in their cigarettes. 


D. Fraudulent Concealment.

78. Defendants have fraudulently concealed the existence
of the causes of action alleged below. The Plaintiffs and
members of the general public have exercised due
diligence to learn of their legal rights, and despite
such diligence, failed to uncover the existence of the
violations alleged below until very recently. Defendants
affirmatively concealed the existence of the causes of
action alleged below through the following actions, among
others: 

a. Testifying falsely under oath before the United States
Congress. 

b. Providing false explanations of customers and to
governmental entities regarding the health hazards of
tobacco and the addictive qualities of nicotine. 

c. Conducting activities in furtherance of the conspiracy
in secret, including clandestine meetings, using tobacco
company attorneys to secure documents that might reveal
the dangers of cigarettes and the addictive nature of
nicotine, closing down research projects and moving
research and information facilities outside the United
States. 

d. Requiring employees to keep secret all information
about the dangers of cigarette smoking and the addictive
nature of nicotine under threats of severe legal
consequences. 


E. Tolling Of Applicable Statutes Of Limitation. 

79. Any applicable statutes of limitation have been
tolled by Defendants' affirmative and intentional acts of
fraudulent concealment, suppression, and denial of the
facts as alleged above. Plaintiffs are informed and
believe that such acts of fraudulent concealment included
intentionally covering up and refusing to disclose
internal documents, suppressing and subverting medical
and scientific research, and failing to disclose and
suppressing information concerning the addictive
properties of nicotine and Defendants' manipulation of
the levels of nicotine in their Tobacco products to
addict consumers. Through such acts of fraudulent
concealment. Defendants have successfully concealed from
the public the truth about the addictive nature of
tobacco and their manipulation of nicotine levels in
their Tobacco products, thereby tolling the running of
any applicable statues of limitation. Plaintiffs and
members of the general public could not reasonably have
discovered the true facts until very recently the truth
having been fraudulently and knowingly concealed by
Defendants for years. 

80. In the alternative, Defendants are estopped from
relying on any statutes of limitation because of their
fraudulent concealment of the addictive nature of
nicotine and their manipulation of nicotine levels and
big-availability of nicotine in their Tobacco products.
Defendants were under a duty to disclose their
manipulation of nicotine levels and bio-availability of
nicotine in their Tobacco products because this is
nonpublic information over which Defendants had exclusive
control because Defendants knew that this information was
not available to Plaintiffs or the general public and
because this information was crucial to the consuming
public in making their purchasing decisions. As a result
of this concealment, members of the general public were
deprived of informed consent regarding their ingestion of
an addictive drug and were deprived of any choice on
which to make a risk/benefit assessment. 

81. Until shortly before the filing of the Complaint in
this action, Plaintiffs, David McLean, and the general
public had no knowledge that Defendants were engaged in
the wrongdoing alleged herein. Because of the fraudulent
and active concealment of the wrongdoing by Defendants,
including deliberate efforts--which continue to this day,
to give Plaintiffs, David McLean, and members of the
general public the materially false impression that
nicotine is not addictive and that Defendants are not
manipulating the nicotine levels of their Tobacco
products, Plaintiffs, David McLean, and members of the
general public could not reasonably have discovered the
wrongdoing at any time prior to this time. Defendants
have attempted and are continuing their attempts to keep
such internal information from reaching the public.
Indeed Defendants still refuse to admit that nicotine is
addictive and that they have manipulated the levels of
nicotine in their Tobacco products. 


DAMAGES

82. This action is brought by LILO MCLEAN, the loving
wife of David McLean, and MARK HUTH, the son of David
McLean, pursuant to the Survival Statute of the State of
Texas, Texas Civil Practice & Remedies Code Sec. 71.021,
and the Texas Wrongful Death Act, Texas Civil Practice &
Remedies Code Sec. 71.001, et seq., for all damages
recoverable under those Acts. Specifically, Plaintiffs
allege that they are entitled to the following elements
of damages, in the past and future, due to the
unfortunate and unnecessary death of their husband and
father: 

A. Pecuniary damages for the loss of care, maintenance,
support, advise, counsel, and financial contribution and
support that David McLean would have provided during his
lifetime had he lived; 

B. The loss of affection, comfort, companionship,
society, emotional support, love, and affection that
David McLean would have provided his wife during his
lifetime had he lived; 

C. Mental anguish and pain and suffering and in which all
reasonable probability Plaintiffs will continue to suffer
in the future as a result of the death of their husband
and father, David McLean; 

D. The mental anguish and conscious pain and suffering
endured by David McLean prior to his death; 

E. The reasonable funeral and burial expenses because of
the death of David McLean; and 

F. Loss of inheritance.


FIRST CAUSE OF ACTION
(Fraud and Deceit)

83. Plaintiffs hereby incorporate by reference the
allegations contained in paragraphs 1 through 82 of this
complaint, as though fully set forth herein. 

84. At all times during the course of dealing between
Defendants and David McLean, through advertising and
representations in the mass media and by other
communications, Defendants have falsely and fraudulently
represented that nicotine is not addictive. Moreover,
Defendants have continually stated that they do not
manipulate nicotine levels in their Tobacco Products so
as to addict consumers. Additionally, Defendants falsely
and fraudulently represented to David McLean that their
tobacco products were not harmful to the health of
cigarette smokers. 

85. In representations to David McLean, Defendants
uniformly omitted the following material: nicotine is
addictive; Defendants manipulate nicotine levels in their
tobacco products so as to addict consumers; and smoking
cigarettes causes adverse health consequences. 

86. Defendants were under a duty to disclose to David
McLean the addictive nature of nicotine, Defendants'
manipulation of the nicotine levels in Defendants'
cigarettes, Defendants' intention to addict David McLean,
and the adverse health effects of cigarettes. Defendants
had sole access to material facts concerning the
addictive nature of nicotine, Defendants' manipulation of
the nicotine levels in Defendants' cigarettes,
Defendants' intention to addict David McLean, and the
adverse health effects of cigarettes. Defendants know
that, prior to David McLean's addiction to nicotine,
David McLean could not reasonably have discovered the
addictive nature of nicotine, Defendants' manipulation of
the nicotine levels in Defendants' cigarettes,
Defendants' intention to addict David McLean, and the
adverse health effects of cigarettes. In addition,
Defendants actively concealed the addictive nature of
nicotine, Defendants' manipulation of the nicotine levels
in Defendants' cigarettes, Defendants' intention to
addict David McLean, and the adverse health effects of
cigarettes. 

87. The representations were false when made and known by
Defendants to be false or were made with reckless
indifference to the truth of the statements. In fact,
cigarettes were known to Defendants to be harmful,
nicotine was known to Defendants to be addictive, the
level of nicotine in Defendants' cigarettes was known to
be manipulated by Defendants, and the intent to addict or
maintain addiction of David McLean was know
to-Defendants. 

88. These misrepresentations and omissions were made
deliberately, willfully, and maliciously to mislead David
McLean and other smokers into reliance and action
thereon, and to cause David McLean to purchase
Defendants' tobacco products. 

89. David McLean had no way to determine that the
representations were false and misleading, and that they
included material omissions, and David McLean reasonably
relied on Defendants' representations. 

90. By reason of his reliance on Defendants'
misrepresentations and omissions and his subsequent
addiction, David McLean sustained personal injuries and
died from lung cancer. 

91. Defendants knew or acted with reckless indifference
to the fact that nicotine was addictive, Defendants
manipulated the amount of nicotine levels in tobacco
products, and Defendants intended to addict David McLean
and other cigarette smokers but refrained from disclosing
the facts to cigarette smokers, for the purpose of
inducing them to purchase tobacco products, thus causing
personal injury and death to David McLean and thus
causing damages to Plaintiffs. 

92. In addition to either having actual knowledge or a
reckless indifference to the true facts, the conduct of
the Defendants amounted to a willful refusal to know or
to learn. 

93. Defendants are liable for punitive damage for their
reckless or wanton or willful disregard for the public's
safety in the manipulation of nicotine, a toxic and
hazardous substance, in their cigarettes and their
concealment and denial of nicotine's addictive properties
and the adverse health effects of smoking, all done to
maximize sales and profit at the expense of the public's
health and safety. Defendants' willful and wanton conduct
constitutes malice, oppression, fraud, and a conscious
indifference to the right and safety of others, and
thereby warrants the imposition of punitive and exemplary
damages against Defendants. 


SECOND CAUSE OF ACTION
(Negligent Misrepresentation)

94. Plaintiffs reallege, as if fully set forth, each and
every allegation contained in paragraphs 1 through 93
above, and further allege. 

95. By reason of their knowledge and expertise regarding
the addictive nature of nicotine, manipulation of the
amount of nicotine in tobacco products, intent to addict,
their research into the adverse health effects of their
products, and by reason of their statements to consumes
in advertisements and other communications, at all times
relevant hereto, Defendants owed David McLean and the
tobacco consuming public a duty of care which required,
among other things, that Defendants be truthful and
accurate in their representations concerning their
tobacco products. 

96. Defendants breached their duty of care to David
McLean by negligently making the material
misreprenentations alleged herein, thus causing David
McLean personal injuries and death. 

97. David McLean reasonably relied on Defendants'
representations, when in fact those representations
constituted negligent misrepresentations. 

98. Such reliance was not only foreseeable by Defendants
but also intended by them, and such reliance was
reasonable. 


THIRD CAUSE OF ACTION
(Misrepresentation to Consumers)

99. Plaintiffs reallege, as if fully set forth, each and
every factual allegation contained in paragraphs 1
through 98 hereof, and further allege. 

100. Defendants have engaged in the business of selling
cigarettes and other tobacco products to consumers in the
United States and in Texas. 

101. Defendants' advertisements and promotional
statements made material misrepresentations to the
public, including representations that their products
were not addictive, that they did not manipulate the
nicotine levels in tobacco products, that they did not
intend to addict Decedent and the cigarette consuming
public, and that there were no adverse health effects
arising from the use of their products. 

102. David McLean reasonably relied on Defendants'
misrepresentations of material fact concerning the
character and quality of Defendants' tobacco products. 

103. Such reliance was not only foreseeable by Defendants
but also intended by them, and such reliance was
reasonable. 


FOURTH CAUSE OF ACTION
(Breach of Express Warranty)

104. Plaintiffs reallege, as if fully set forth, each and
every factual allegation contained in paragraphs 1
through 103 hereof, and further allege. 

105. Defendants' advertisements and promotional
statements contained broad claims amounting to a warranty
that their products were not addictive, that they did not
manipulate the nicotine levels in tobacco products, and
they did not intend to addict David McLean and the
cigarette consuming public, and that there were no
adverse health effects arising from the use of their
products. 

106. Defendants breached their warranties by offering for
sale, and selling as non-addictive, tobacco products that
were addictive and contained levels of nicotine
manipulated to make them addicted. 

107. This breach of the express warranties has caused
David McLean to become addicted to Defendants' tobacco
products and to suffer adverse health effects arising
from the use of the product, thus causing David McLean
personal injuries and death. 


FIFTH CAUSE OF ACTION
(Breach of Implied Warranty)

108. Plaintiffs reallege, as if fully set forth, each and
every factual allegation contained in paragraphs 1
through 107 hereof, and further allege. 

109. Defendants impliedly warranted that their tobacco
products, which they designed, manufactured, marketed,
and sold to David McLean, were merchantable and fit and
safe for ordinary use. 

110. Defendants' tobacco products purchased and consumed
by David McLean were addictive, unmerchantable, and unfit
for use when sold, and subjected these persons to
addiction and/or adverse health effects. Therefore,
Defendants breached the implied warranty of
merchantability at the time the tobacco products were
sold to David McLean in that the tobacco products were
not fit for their ordinary purposes. 

111. As a direct and proximate result of the breach of
the implied warranty of merchantability by the
Defendants, David McLean was addicted to Defendants'
tobacco products and has suffered adverse health effects,
including death, causing decedent and Plaintiffs to incur
damages. 


PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for relief and judgment
against the Defendants, jointly and severally, as
follows: 

1. for general damages according to proof; 

2. for all medical and incidental expenses according to
proof; 

3. for punitive and exemplary damages in an amount
sufficient to punish and deter others from similar
wrongdoing; 

4. for funeral and burial costs;

5. for costs of suit herein incurred;

6. for pre-judgment interest as allowed by law; and 

7. for such other and further relief as the Court may
deem proper. 


Respectfully submitted,

HOWARTH & SMITH
DON HOWARTH (Calif. Bar No. 53783)
SUZELLE M. SMITH (Calif. Bar No. 113992) RANDALL BOESE
(Calif. Bar No. 179712) 700 South Flower Street Suite
2900 Los Angeles, California 90017-4216 (213) 955-9400 

BALDWIN & BALDWIN
SCOTT BALDWIN
JACK BROWN BALDWIN
P.O. Drawer 1349
Marshall, Texan 75671
(903) 935-4131

By: /s/
Scott Baldwin
Don Howarth - Attorney-in-Charge
Attorneys for Plaintiffs
LILO MCLEAN and MARK HUTH


[ASH Logo]ASH - ACTION ON SMOKING AND HEALTH

2013 H Street, NW / Washington, DC 20006 / (202) 659-4310