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• USSC cigarette ruling has secondhand results in W.Va. 

If tobacco companies deceived smokers of "light" and "low tar" cigarettes, smokers can sue them under state consumer laws, the U. S. Supreme Court decided on Dec. 15.

Five Justices agreed that federal labeling laws do not pre-empt suits in state courts alleging that tobacco companies violated a duty not to deceive smokers.

In West Virginia, the decision allows Circuit Judge Arthur Recht of Wheeling to lift a stay he imposed on all tobacco suits in West Virginia.

Recht, who handles tobacco litigation by appointment of the Supreme Court of Appeals, imposed the stay while awaiting the decision.

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• Justices refuse to hear tobacco companies' petition 

A massive tobacco trial involving more than 1,000 plaintiffs will likely go off as scheduled following a state Supreme Court ruling.

Justices on Wednesday voted 4-1 to refuse a petition filed by lawyers for five major tobacco companies asking they invalidate a plan for the trial devised by Ohio County Circuit Judge Arthur Recht.

Justice Brent Benjamin would have granted the petition.

Now it is likely that the trial will begin in March after nearly a decade of preparation.

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• State Supreme Court to examine tobacco lawsuit 

The state Supreme Court is set to consider whether a massive civil trial involving major tobacco companies and more than a thousand smokers is set up properly.

Millions of dollars are at stake, and the court's decision could result in yet another delay in the case, which is already 10 years old.

Lawyers for the major tobacco companies say Ohio County Circuit Judge Arthur Recht has devised a trial process that puts the cart before the horse.

The trial is set to begin in March.

They contend Recht's plan violates the companies' rights because the jury would be asked to determine how much money the companies would owe in punitive damages even before the companies had a chance to defend themselves against plaintiffs' individual allegations. . . .

Lawyers for the plaintiffs say the companies are just trying to stall.

They call the tobacco companies' petition "appallingly disingenuous."

The plaintiffs point to an earlier decision by the state Supreme Court in 2005 in which justices upheld Recht's plan. . . .

The state court is scheduled to consider the matter Wednesday.

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• Judge Throws Out Some Tobacco Plaintiffs 

The heirs of an estimated 160 dead smokers will not be able to wage personal injury lawsuits against cigarette manufacturers because they have not responded to lawyers' attempts to contact them.

The nation's largest consolidation of smokers' lawsuits continued its march toward a late spring 2007 trial during a hearing at Ohio County Circuit Court Oct. 16. Judge Arthur M. Recht refused to give plaintiffs' attorneys another extension on the time allotted to locate relatives of plaintiffs who died before they could give their depositions in the case. The plaintiffs are suing cigarette makers for damages, accusing them of manufacturing products that caused their illnesses or deaths.

What started as about 1,100 plaintiffs has been whittled to roughly 800 smokers suing cigarette makers. . . .

"The whole idea, for better or worse, was to try to strike a compromise that hopefully was as fair as could be arranged," he said before denying the motion for another 30-day extension. "... The time period was set for the 18th of September, and I'm going to stick to it. Even to get to that was a compromise."

Another issue tackled during the hearing involved whether Recht would grant summary judgment to the defendants or dismiss the claims of some plaintiffs who may have waited too long to file their lawsuits.

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• Tobacco Case Can Proceed with Punitive Damages 

The West Virginia Supreme Court of Appeals said a massive personal injury lawsuit in West Virginia can proceed as planned.

The nation's largest consolidation of smokers suing cigarette makers -- roughly 1,100 plaintiffs -- can address the need for punitive damages in the first phase of a two-part trial plan.

The tobacco case was supposed to follow what some call the asbestos litigation model: Liability for all defendants is addressed en masse in the first trial phase. That jury will decide what, if any alleged acts the defendant companies are responsible for, and if that jury decides the companies are liable for punitive damages, it will set a punitive damage multiplier. In the second phase of the trial, when plaintiffs take their specific claims to a new jury, any economic damages awarded then would be multiplied by the phase one figure to reach total damages for a plaintiff.

Ohio County Circuit Judge Arthur M. Recht has been overseeing the case, but after a controversial 2003 U.S. Supreme Court opinion, he threw out the West Virginia case's original trial plan. . . .

Recht said that meant a phase one trial could not include punitive damages, but the state Supreme Court disagreed in a unanimous opinion written by Justice Elliott E. "Spike" Maynard.

The court said the State Farm case does not preclude the smokers from proceeding with a bifurcated trial plan, a decision that also revalidates the asbestos litigation model.

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• IN RE: TOBACCO LITIGATION (PERSONAL INJURY CASES) 

CONCLUSION

For the reasons set forth above, we answer the certified question as follows:

Does the Due Process Clause of the Fourteenth Amendment to the Federal Constitution, as interpreted by State Farm v. Campbell, preclude a bifurcated trial plan in a consolidated action consisting of personal injury claims of approximately 1,000 individual smokers, wherein Phase I of the trial would decide certain elements of liability and a punitive damages multiplier and Phase II of the trial would decide for each plaintiff compensatory damages and punitive damages based upon the punitive damages multiplier determined in Phase I?

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W. Va. court says mass trial can be held for tobacco cases 

The state Supreme Court ruled Friday that a mass trial can be held on more than 1,000 complaints against five tobacco companies - including two based in North Carolina - and a public relations firm.

But the court said its decision was not a judgment on whether such a trial is the best way to handle the cases.

The unanimous unsigned ruling answered a certified question on whether a 2003 U.S. Supreme Court ruling prevented Ohio County Circuit Judge Arthur Recht from holding a mass trial in two phases, as had been under development since 2000.

The defendants in the case are R.J. Reynolds Tobacco Co. and Brown & Williamson Tobacco Corp., which have since merged to form Reynolds American Inc., based in in Winston-Salem, N.C.; Lorillard Tobacco Co., based in Greensboro, N.C., Philip Morris USA Inc., British American Tobacco Investments Ltd. and public relations firm Hill and Knowlton Inc.

About 1,100 smokers claim the defendants were involved in a process of "fraudulent concealment" beginning in the 1950s to entice people to smoke. Their allegations included that the companies marketed smoking to youths, made misrepresentations about "light" cigarettes and manipulated nicotine levels in certain brands.

Under Recht's plan, the first phase of a trial would determine whether the companies are liable and to develop a formula for punitive damages. The second would decide compensatory and punitive damages for each plaintiff based on the multiplier.

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Smokers' lawyers: Cases may take 180 years without consolidation 

Attorneys for about 1,100 smokers suing tobacco companies are asking the state Supreme Court to restore a consolidated, two-phase trial plan that has been dropped by a judge in Ohio County.

Otherwise, they say, it would take the circuit court 180 years to sort out each case individually.

"An inefficient trial plan would practically deny a substantial portion of these terminally-ill plaintiffs their day in court," the smokers' attorneys said in a filing with the Supreme Court.

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• Cigarette companies prefer 'bellwether' over 'blender' trials 

Tobacco companies, including two based in North Carolina, want to run a few "bellwether" cases of individual smokers before addressing the more than 1,000 complaints brought against the cigarette makers in Ohio County.

Tobacco attorney Andrew Schapiro on Tuesday told the state Supreme Court that lumping all the cases together could make the cigarette makers liable for things they are not necessarily accused of.

About 1,100 smokers claim five cigarette companies and a public relations firm were involved in a process of "fraudulent concealment" beginning in the 1950s to entice people to smoke. Their allegations included that the companies marketed smoking to youths, made misrepresentations about "light" cigarettes and manipulated nicotine levels in certain brands.

Schapiro argued that by trying all the cases together, it would ignore that each smoker had a different set of circumstances. A person who started smoking at age 30 could not blame the cigarette companies for allegedly directing advertising at youths, he said.

"They would throw all of them in a blender, and the defendants would have to pay damages for things they never were alleged to do wrong," Schapiro said. . . .

The smokers' attorney, Kenneth McClain, said the proposal for individual tobacco trials is unreasonable because they take too long to process. Four unrelated smoking cases that he is working on have taken four years to get to trial, he said.

"Justice delayed is justice denied," he said.

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• Change in smokers’ trial plan protested 

CHARLESTON, W.VA. - Attorneys for about 1,100 smokers suing tobacco companies are asking the state Supreme Court to restore a consolidated, two-phase trial plan that has been dropped by a judge in Ohio County.

Otherwise, they say, it would take the circuit court 180 years to sort out each case individually.

"An inefficient trial plan would practically deny a substantial portion of these terminally ill plaintiffs their day in court," the smokers’ attorneys said in a filing with the Supreme Court.

The trial had been scheduled to begin in March, but was postponed pending today’s Supreme Court hearing in Huntington.

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Tobacco Case Plaintiffs Seek Opinion 

About 1,000 smokers want the West Virginia Supreme Court of Appeals to examine an Ohio County Circuit Court decision to throw out the trial plan that structured how their personal injury and wrongful death claims would be litigated.

The case is the largest consolidation in the country of personal injury lawsuits against the tobacco industry. The smokers are suing cigarette makers because the plaintiffs believe their smoking-related illnesses, or in some cases deaths, are the result of 50 years of misconduct by the tobacco industry.

The case has been ruminating for a few years. Last year, Ohio County Circuit Judge Arthur M. Recht said a U.S. Supreme Court ruling made it impossible for the tobacco case to move forward in its current form. . . .

Missouri attorney Ken McClain, who represents the plaintiffs in the West Virginia case, told the West Virginia Supreme Court Feb. 22 that Recht has over-read the State Farm case and incorrectly applied it to the smokers' lawsuit.

McClain, with Recht's approval, had submitted a certified question that essentially asks the Supreme Court to review Recht's decision. The high court has not yet accepted the certified question, but it allowed McClain to argue his motion in person.

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• Tobacco Case Back to Square One? 

A massive personal injury lawsuit involving about 1,100 sick or deceased West Virginia smokers suing the nation's largest cigarette makers may be back to square one.

Ohio County Circuit Judge Arthur M. Recht has ruled a U.S. Supreme Court opinion renders moot the West Virginia case's trial plan, in place since early 2000. The decision could force lawyers to start from scratch.

Plan is Unworkable

"In constructing the extant case management order, this court was motivated by a desire to formulate a trial plan that could achieve a speedy resolution of the plaintiffs' claims and still accommodate the defendants' entitlement to due process. The majority holding in Campbell just will not permit the trial to proceed in the manner that it is now formulated," Recht said in the opinion he entered June 16. "The case management order entered Jan. 11, 2000, is hereby vacated and set aside, to be reformulated at a future hearing."

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Long-planned tobacco trial hits snag 

A recent US Supreme Court ruling on punitive damages in civil cases is forcing Ohio County Circuit Judge Arthur Recht to reconsider his game plan.

Recht will hear a case involving eleven-hundred sick or deceased smokers who are suing five major cigarette makers.

It was supposed to begin in March in Wheeling, but the timeline is now up in the air.

At issue is a formula that Recht proposed to let jurors decide how much the companies would pay if they were found liable.

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Recent Opinions: TORTS :: Medical monitoring defense verdict affirmed 

IN RE: TOBACCO LITIGATION (Medical Monitoring Cases), No. 31157 (Per Curiam)(Davis, J., disqualified)(Maynard, C.J., dissenting)(May 6, 2004). Affirming an order of the Circuit Court of Ohio County that upheld a jury's verdict declining to require the manufacturers of certain tobacco products to provide medical monitoring to individuals exposed to the potentially harmful effects of smoking. Holding that the jury's finding, arising from controverted testimony, that exposure to cigarette smoke does not "make it reasonably necessary for all class members to undergo periodic medical examinations different from what would be prescribed in the absence of exposure" amounts to a failure to establish one of the required factors set forth in Bower v. Westinghouse.

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• In Re: Tobacco Litigation (Medical Monitoring Cases), No. 31157 

After a careful review of the record, it is apparent that the jury's verdict on the issue of whether medical monitoring for the appellants was reasonably necessary was founded upon conflicting testimony. As seen by this jury verdict, Bower establishes an extremely high bar for a plaintiff to overcome before there can be any recovery for medical monitoring. We are generally reluctant to disturb the verdicts of juries, and we decline to do so on the evidence of this case. (See footnote 3) . . .

The circuit court's March 18, 2002 order is affirmed.

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