The widow of the "Marlboro Man" filed suit August 30, 1996 against the tobacco industry, alleging that its fraud and deceit contributed to David McLean's death from lung cancer. McLean was featured in a long-running campaign for Philip Morris' most popular brand of cigarettes. McLean's widow alleges that he routinely smoked as many as five packs of cigarettes a day in the course of shooting print and television commercials.

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) Most 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