Taking on the tobacco giants: No smoke without fire

When David Van Der Velde - a smoker - died of lung cancer, his widow Gabrielle decided to take the tobacco company Philip Morris to court for compensation. But will she succeed where so many have failed? Robert Verkaik investigates

"Daddy's ill because he used to smoke cigarettes." These were the words David Van Der Velde used to tell his two young children that he was dying from lung cancer. Three months later, and seven months after he was first diagnosed with the disease, Mr Van Der Velde was dead.

His widow, Gabrielle, from south London, is now intent on making legal history by bringing her husband's claim for compensation to a court in the United States. If she succeeds, the case could open the floodgates for thousands of other British sufferers who have also been diagnosed with tobacco-related diseases but refused compensation in this country.

David Van Der Velde, a clothing manufacturer, was only 46 years old when he died. He had been smoking for most of his life, but had recently managed to kick the nicotine habit.

"It was fashionable when he was young," says Mrs Van Der Velde. "His parents smoked, everyone smoked. It was cool and trendy, and the advertisers made it seem like an essential part of life."

Now, Mrs Van Der Velde wants the tobacco companies to face up to their liabilities and pay out compensation for the death of her husband. "This has never been about the money. But they made billions and billions of pounds out of people like my husband. Why should they be allowed to sell products which kill you? They knew there were using additives and dangerous chemicals in their cigarettes."

Since her husband became ill in 1999, Mrs Van Der Velde has given up her job as an American Express account director so that she can look after their two children, aged 11 and 12. "My husband was a very fit man and a very good league-level squash player," she says. "But when were on our Christmas holiday in Tenerife he became ill with a pain in his ribs. He thought it was some bruising from a squash injury. But when we got back to London he wasn't getting any better and seemed to be in terrible pain."

Doctors failed to establish the cause of his ill-health. Eventually, he was referred to a consultant, who recommended tests that led to a diagnosis of lung cancer. Seven months later, and after intensive chemotherapy treatment, he died at home.

"How can someone be a fit person one minute and dead the next?", Mrs Van Der Velde asked. "This was a terribly emotional time for us, especially as we tried to keep the horror from the children."

Mrs Van Der Velde said that during this time her husband tried to find a solicitor to help him bring the case to court, so that he could make some sense out of his experience and, at the same time, help others to win justice. After a long search, he eventually found the one firm willing to take on the case.

Mrs Van Der Velde and her British lawyers, Russell Jones & Walker, know they now face an uphill struggle. Philip Morris, the US company that makes Marlboro cigarettes, Mr Van Der Velde's favourite brand, recently issued its defence to the Van Der Velde action in a New York district court. Part of their argument is that Mr Van Der Velde was to blame for his own death because he should have known the health risks associated with smoking. In one of its 53 defences lodged in the New York court, Philip Morris states: "The plaintiff's decedent (Mr Van Der Velde) chose to smoke despite having that knowledge."

While it admits that smoking causes cancer and other diseases, Philip Morris denies that "any cigarette manufactured" by the company "caused or contributed to any injuries" suffered by Mr Van Der Velde.

Such a vociferous defence shows how much the American tobacco industry believes is at stake.

Three years ago, litigation against the British tobacco industry was halted when a group of cancer sufferers had to abandon a multi-million-pound lawsuit in this country. The claimants' decision to withdraw followed a hearing in the High Court, when Mr Justice Wright indicated the cases were time-barred. The law states that claims must be brought within three years of the accident or date of knowledge of a disease. However, the judge gave no ruling on the issue of liability.

The tobacco companies Gallaher Group Plc (makers of Silk Cut and Benson and Hedges cigarettes) and Imperial Tobacco promised not to pursue the failed litigants for their costs, which totalled £7m. In return, the solicitors agreed not to take action against any tobacco firm for five years, and not to take any action against Gallaher and Imperial for 10 years.

But Russell Jones & Walker, and its US attorneys in New York, hopes that it can succeed in the US against Philip Morris where others have failed in the UK. They will be relying on public admissions made by Philip Morris, and other representatives of the tobacco industry, about the addictive quality of nicotine and the link between smoking and lung cancer.

In the USA, continuing litigation before juries against the tobacco companies is well established. Trial juries have awarded multi-million-dollar pay-outs against the US tobacco industry, and against Philip Morris in particular.

Mrs Van Der Velde's legal adviser, Alan Care of Russell Jones & Walker, commented: "There is now a golden opportunity for the US court to come to the aid of Mrs Van Der Velde and hear this case in their jurisdiction. Almost inevitably there will be a forum battle, and it is expected that Philip Morris will try to have the case referred to the English courts. However, the expertise in tobacco litigation and vast documentation is in the USA, and Philip Morris is a US company."

US lawyers for American claimants have argued that tobacco companies knew full well since as far back as the 1950s that they were selling a dangerous and fatal product, and duped smokers into believing that it was harmless. At the centre of these cases has been the issue of nicotine addiction. Many smokers can give testimony to their failed attempts at giving up smoking. Mr Van Der Velde even went to the lengths of using hypnotism.

In the Van Der Velde case, documents lodged in the New York court claim that, since 1946, US tobacco companies systematically suppressed important information and "waged an aggressive campaign of disinformation about the health consequences of smoking". The Van Der Velde case maintains that the tobacco industry's own research had revealed how damaging their own products really were many years ago.

Mr Care says: "The public may well ask, why has this not happened in the UK? The question remains, would a 'test' case brought now result in a finding that the tobacco companies should pay compensation? In reality, the only remaining defence to a tobacco action is that the tobacco industry now says that the smoker is to blame for smoking their products."

The first crucial ruling on the Van Der Velde case will be on the question of jurisdiction. But, warns Mr Care: "Should the US Court not hear this case, there will be no litigation in the English courts. Of that you can be absolutely sure."