Family Hopes Small Claims Have Big Impact : Tobacco: Relatives have sued cigarette makers over the death of their mother.

Still grieving over their mother’s death last year from lung cancer, the children of Della Koenigshofer are trying to put the hurt where they think it belongs--on the tobacco industry.

In a novel attack on cigarette makers, seven members of the Koenigshofer family have taken the cigarette companies into small claims court in Los Angeles and Riverside to answer to wrongful death suits.

With small claims damages capped at $5,000 a case, the Koenigshofers aren’t seeking a big recovery. Instead, they say, they hope to pioneer a way for anguished families of ordinary means to make life miserable for the industry.

“It’s not for the money,” said Melinda Hipp-Koenigshofer, who, along with her father, four brothers and a nephew, filed the claims in August. “It’s more of a statement of our feeling that the tobacco companies have knowingly and willingly addicted people to this product--knowing that it’s a health hazard and potentially fatal, as it was in our mother’s case.”

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Spokesmen for two of the defendants, Philip Morris Inc. and R.J. Reynolds Tobacco Co., denounced the lawsuits as improper and unfair and predicted they will be dismissed. Three of the cases are set for hearing today in Los Angeles.

Over the past 40 years, tobacco companies have had remarkable success in defending liability claims; they have yet to pay a nickel in settlements or judgments to those who sued them for smoking-related harms. Only rarely have the companies even had to win in court. In many cases, financially exhausted plaintiffs simply threw in the towel.

Ken Koenigshofer, a psychology professor at Chaffey Community College in Rancho Cucamonga and the oldest of five Koenigshofer children, said the family hopes to even the odds in the informal venue of small claims court, where lawyers are not needed--nor even allowed to speak for contending parties.

Victory there, he said, could give thousands of others “a forum for attacking cigarette companies, without spending a lot of money and without being buried in a huge amount of legal technicalities which prevent the case from ever being heard on its merit.”

However, the strategy could face special problems in California, where, in 1987, the Legislature barred most lawsuits against manufacturers of cigarettes or other products deemed inherently unsafe and recognized as such by consumers.

The Koenigshofers contend their claims fall within exceptions to the law. But tobacco officials expressed confidence that the suits are precluded and will be dismissed.

“We’re optimistic (that) we will prevail,” said John J. Mulderig, a lawyer for Philip Morris. “The California statute is really clear that with product liability actions that involve products like cigarettes whose risks are a matter of common knowledge, those claims are barred.”

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Still, the companies are taking no chances. As they always do in wrongful death cases, they are poking into the personal histories of the deceased and her family, sifting for ammunition to aid in the defense.

According to the Koenigshofers, tobacco company representatives have been contacting relatives and friends with questions about the family. Ken Koenigshofer’s ex-wife, who asked not to be named, said two men showed up on her doorstep after dark one night last week.

“They just appeared on my porch at about 8 o’clock and they were both dressed in suits,” she said in an interview. “They never identified themselves or what kind of work they did. . . . They just said we have been talking with anyone who knew the Koenigshofers. . . .

“I asked, . . . ‘You want me to speak against the Koenigshofers?’ and he said yes . . . I would not speak with them and they left.”

Asked if the men were sent by Philip Morris, Mulderig said he “wouldn’t be able to comment on any investigative activities.”

Peggy Carter, manager of media relations for R.J. Reynolds, said she had “no doubt she (Koenigshofer’s ex-wife) was visited by someone looking into this case.” But Carter said she didn’t know if the men were sent by Reynolds, which directs its agents “to identify themselves when they make the call as to who they are and who they are representing.”

But both Carter and Mulderig said the tobacco firms understandably are scrambling for information because their usual right to pretrial discovery materials does not exist in the small claims setting.

“In our view, a case involving complex medical issues where no right of discovery exists is just improper,” Mulderig said. “We know nothing about this person’s smoking history. And the small claims forum, in our view, was purposely selected to cut off our rights to discover those facts.”

Phillip Morris last year turned back a reformed Seattle-area smoker’s attempt to win reimbursement in small claims court for his costs of quitting smoking. A judge concluded that the statute of limitations had expired.

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According to her family, Della Koenigshofer began smoking as a teen-ager in the 1940s--when smoking was universally portrayed as glamorous and suave, and there were no warnings of the risks. She was happy her children did not smoke, but seemingly unable to quit despite the encouragement they gave her.

“She was an innocent consumer who was seduced to use the product and by the time it became evident how damaging it was, she was seriously physically dependent,” said John Koenigshofer, 39, one of her sons.

“I was hard on her about her smoking,” recalled Eric Koenigshofer, a lawyer in Santa Rosa. “I didn’t allow smoking in my house, and I have this vivid image of my mother sitting outside in a lawn chair, under a tree outside the French doors, in a coat, having a cigarette,” he said.

“There’s no question in my mind that this woman was addicted to cigarettes,” Eric Koenigshofer said. “Every measure of influence that was available to her loved ones was applied to . . . bully her into cessation of smoking, and she wasn’t able to do it.”

In Los Angeles, the family has filed small claims actions only against Lorillard Inc., saying Della Koenigshofer smoked the company’s Kent cigarettes during the years she lived in Van Nuys.

Later, while living in Hemet, they say she smoked various brands made by Philip Morris, Reynolds, American Tobacco, Brown & Williamson, and Liggett Group--all of which are named in the Riverside cases.

Della Koenigshofer was 70 when she died, but came from a long-lived family, her children said.

“We feel that she was cheated of more life and that we were cheated of more years of relationship with her,” Ken Koenigshofer said.

“It’s been over a year, and I still miss her terribly,” said Hipp-Koenigshofer. “She was a wonderful mother. She was a wonderful grandmother . . . My 9-year-old still cries at night sometimes because he misses her.”