APPEAL COURT GIVES GO-AHEAD TO TOBACCO SUIT

Widower alleges cigarette firms destroyed data

The husband of a Burlington woman who died of lung cancer has won the
right to sue Canada's tobacco companies for allegedly destroying
evidence that would prove they had known since the 1950s that smoking
was bad.

The Ontario Court of Appeal's unanimous decision yesterday dealt a
blow to the cigarette makers' efforts to stop the lawsuit brought by
Ljubisa (Lou) Spasic, which also alleges the tobacco makers
deceitfully turned out dangerous products.

Spasic's wife, Mirjana, died of cancer two years ago at 53 after years
of smoking.

His lawsuit, which seeks $1 million in compensatory damages and
undetermined punitive damages, alleges Imperial Tobacco Ltd. and
Rothmans, Benson & Hedges Inc. knew cigarettes were hazardous but
deliberately deceived the public and destroyed documents proving the
companies were well aware of the dangers.

The tobacco makers successfully attacked the claim in a lower court,
arguing the right to sue over the alleged destruction of documents did
not exist in law.

The appeal court, however, rejected that argument yesterday and parted
company with earlier court rulings that tended to support the tobacco
makers' view.

"The very few Canadian cases which have considered the question are
far from definitive," said Mr. Justice Stephen Borins, writing for
Justices James MacPherson and Robert Sharpe.

The decision sets the stage for delving into the document-shredding
policies of the tobacco makers and whether evidence was shipped
offshore, said Andreas Seibert, one of Spasic's Toronto lawyers.

"Now we're going to be able to fully pursue all evidence concerning
the defendants' destruction policies and that of their affiliate
companies," he said, adding that the implications of yesterday's
decision are much bigger than this case.

"It is definitely sending out a message to alleged wrongdoers to
beware, that the court is not going to allow you to be rewarded for
having tried to cover up evidence."

Robert Hart, Spasic's other lawyer, said legal claims for monetary
damages arising from document destruction are designed to cover
situations where a plaintiff can't proceed with a lawsuit because
evidence needed to prove the case has been destroyed.

Steven Sofer, a lawyer representing Rothmans, Benson & Hedges, said he
thinks the company will seek leave to appeal yesterday's decision to
the Supreme Court of Canada.

It flies in the face of rulings from the British Columbia Court of
Appeal, Ontario's Divisional Court and several U.S. courts, which said
claims arising out of document destruction don't constitute a
"reasonable cause of action," he said.

Yesterday's ruling comes a week after a Miami jury awarded the biggest
personal injury punitive damage award in U.S. history, a $145 billion
judgment against Big Tobacco on behalf of ill Florida smokers.