COUGH UP THAT CASH

By CHRISTOPHER JOHN FARLEY

Ira Stark, a retired cabbie, has a smoking habit that cost taxpayers more than $20,000 last year, and this year the meter is still running. The 53-year-old Miami resident smoked three packs a day for almost four decades; now he has emphysema and needs bottled oxygen to breathe. Medicaid-i.e., taxpayers-foots the bill for his respiratory problems ($400 a month for oxygen, $18,000 for a nine-day hospital stay last year). Despite the tab he's already rung up, Stark still puffs his way through half a pack a day: "I just have this unbelievable craving,'' he says. Stark admits nobody made him start smoking, but since tobacco companies make the product he just can't seem to quit, he figures they're at least partly responsible for his costly state of misery.

The state of Florida agrees. Last week it filed a $1.43 billion suit against the tobacco industry to recoup money spent treating Medicaid patients with smoking-related ailments. West Virginia, Minnesota, and Mississippi have filed similar suits. Meanwhile, a U.S. district judge in New Orleans just cleared the way for a class action by three current smokers and the wife of a deceased smoker who claim that tobacco manufacturers hid the addictive properties of nicotine. If the suit proceeds, almost anyone who is "nicotine dependent" could join and seek up to $50,000 each from cigarette makers. Says Florida Governor Lawton Chiles: "It's time for the tobacco industry to take responsibility for the damage it does."

So far, that's something the industry has avoided. More than 800 antismoking lawsuits have been filed since 1954, but not a single cigarette maker has been forced to pay a single penny in damages. Says Maura Ellis, a spokeswoman for R.J. Reynolds Tobacco Co.: "Juries have consistently found that smokers should be held responsible for their own actions." But public sentiment began to shift during last year's congressional hearings, in which tobacco executives stubbornly refused to admit that smoking was addictive, even as internal company memos revealed that cigarette makers have long understood-and hidden-nicotine's addictive properties. Says Sheldon Schlesinger, a lawyer working on Florida's case: "For years we said to smokers, 'If you want to quit, why don't you quit?' But now people understand that nicotine is addictive, just like a lot of other substances that are outlawed."

Lawyers also understand that if juries begin to turn on tobacco manufacturers, the potential for making money is mind boggling. There are 46 million smokers in this country and 400,000 smoking-related deaths each year. In the Florida Medicaid case alone, the attorneys who succeed in winning the legally mandated triple damages and collecting their 25% contingency fee would divvy up a $350 million pot. So it's hardly surprising that some of the country's best product-liability lawyers have been eager to join Chiles' Dream Team. Meanwhile, 60 U.S. law firms have pledged $100,000 each to support the New Orleans class action, attracted, no doubt, by speculation that the damage award could run as high as $100 billion if the antismoking forces prevail. "It's no longer David vs. Goliath," says John Banzhaf, executive director of the antismoking group Action on Smoking and Health. "The big law firms are willing to put up lots of money because they think there's a big payoff."

In the Florida case, the state also tried to even out the odds by amending its product-liability laws last year. Now it can claim damages based on general health statistics, and cigarette makers can be assessed financial penalties based on their market share, rather than having to prove that an individual patient's illness was caused by smoking a particular brand. The tobacco companies have already tried to have this new statute declared unconstitutional, and makers of other products such as alcoholic beverages have expressed concern that the law could be used against them as well. But last week, in a move that should help soothe such corporate fears, the House Judiciary Committee passed a measure that would severely limit punitive damage awards. The measure, which is part of the g.o.p.'s "Contract with America," must still pass the full House and Senate, and would not apply retroactively to Florida's antitobacco efforts.

Whatever that bill's ultimate fate, the tobacco wars are sure to drag on like a bad habit. This week several major health organizations and a bipartisan group of Governors will publicly rededicate themselves to the fight, waged with sin taxes, lawsuits, and no-smoking areas. Yet some legal experts doubt that the the Medicaid-reimbursement suits will be the decisive new weapon. Says Stephen Sugarman, a law professor at the University of California, Berkeley: "My feeling is that a lot of these untried methods have a dubious likelihood of success." But as any nicotine addict knows, when people want to try to stop smoking, they're willing to try almost anything.

--Reported by Tammerlin Drummond/Miami and Dick Thompson/Washington

With reporting by TAMMERLIN DRUMMOND/MIAMI AND DICK THOMPSON/WASHINGTON