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West Virginia Mega-Tobacco Trial Begins 

West Virginia's version of Florida's Engle litigation has begun in Wheeling, West Virginia, before Honorable Judge Arthur Recht, of the First Judical Circuit.

In the Engle litigation, Florida's Supreme Court sustained the liability findings in a massive class action, but required individual trials for plaintiffs to establish class membership, legal cause, and damages.

In West Virginia, the litigation has similarly been divided into two phases. Phase 1, which is now underway in Wheeling, will determine whether the cigarette companies' conduct warrants compensatory and/or punitive damages. If the jury finds in favor of the plaintiffs, subsequent trials will determine individual liability and actual damages.

In his opening statement on behalf of hundreds of plaintiffs, Kenneth McClain (Humphrey, Farrington McClain) told the jury, "This case is about corporate responsibility," as he showed the jury secret Tobacco company studies identifying carcinogens in cigarettes long before the Tobacco companies acknowledged the dangers. One document calculated the public life expectancy improvements that might result if they changed the cigarette formulas. . . .

For R.J. Reynolds, Jeff Furr (King & Spalding) told the jury that the tobacco companies had defended their product, which they had a First Amendment right to do, by saying that they did not agree that the available studies proved that cigarettes caused cancer. However, for purposes of research and development, the tobacco companies proceeded as if they claim that cigarettes caused cancer had been proven, and embarked on a serious development effort to decrease the cancer risk by making cigarettes safer.

For Philip Morris, Frank Kelly (Shook Hardy Bacon) explained to the jury the history of cigarette design innovation, including filtration, tar reduction, varying ingredients, and different ways to burn the tobacco. According to Mr. Kelly, the public health community encouraged the tobacco industry to develop lower tar cigarette

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Video of In Re: Tobacco Litigation - Trial - 10/26/11 to 11/08/11 

Case Number

00-C-5000

Status

Concluded - Mistrial

Industry

Tobacco

Practice Area

Tobacco

Judge

Arthur Recht

Court

Ohio County Courthouse

Jurisdiction

1st Judicial Circuit of West Virginia

Description

2 month jury trial.

Jury trial in suit involving approximately 750 combined tobacco liability claims. The case is, however, not technically a class action proceeding.

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• Massive W.Va. tobacco trial ends suddenly 

The trial of more than 700 West Virginia claims against the tobacco industry ended in a mistrial Tuesday.

Ohio County Circuit Court Judge Arthur Recht was presiding over the trial, in which the plaintiffs alleged harm caused by Philip Morris Tobacco, R.J. Reynolds Tobacco and Lorillard. The three hid the addiction capabilities of cigarettes, the plaintiffs allege, and Courtroom View Network was broadcasting the trial online.

CVN researcher David Siegel said the defendants objected to a piece of evidence the plaintiffs wanted to introduce. Apparently, he said, the plaintiffs could not proceed without it.

The mistrial ended the first of two trials. It was to determine if the companies are liable for injuries and deaths caused by smoking, and the second would have determined the amount of damages in each individual case.

"They were actively concealing the information that they had and I think that will justify your finding in this case that they were reckless and intentional, and that a future jury like this one should have the opportunity to consider, depending on the circumstances, punitive damages," plaintiffs attorney Ken McClain told the jury during the trial, according to CVN.

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• Altria Says West Virginia Tobacco Case Ends in Mistrial  

A trial of more than 600 claims against Altria Group Inc. (MO)’s Philip Morris unit, R.J. Reynolds Tobacco Co. and Lorillard Inc. (LO) ended in a mistrial, according to an Altria spokesman.

The first part of a two-phase trial of wrongful-death and personal-injury claims by smokers and their families in state court in Wheeling, West Virginia, ended today, less than two weeks after jurors began hearing evidence.

“We do believe that a mistrial was appropriate though, given that we believe the court made numerous legal errors in this case,” Steve Callahan, a spokesman for Richmond, Virginia- based Altria, said in an e-mail today. He didn’t say why the mistrial had been declared.

The case, which was originally consolidated for trial in 2000, was moved to Wheeling from Charleston, West Virginia, after Circuit Judge Arthur Recht was unable to find enough jurors qualified to hear the case there.

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• Altria, Reynolds American Begin Trial of 600 Smoking Claims  

A West Virginia jury began hearing a case intended to resolve more than 600 smoking-related personal- injury cases against the biggest U.S. cigarette makers, including Altria Group Inc.'s Philip Morris unit and R.J. Reynolds Tobacco Co.

The jurors in state court in Wheeling heard the start of opening statements in a two-phase trial. In the first phase, which began today, the jury is being asked to determine general liability questions and the availability of punitive damages.

"This case is about the corporations' responsibility," Kenneth McClain, a lawyer for the smokers, said in court. "They were actively keeping from the public the information that they had."

The case, which was originally consolidated for trial purposes in 2000, was moved to Wheeling from Charleston, West Virginia, after Circuit Judge Arthur Recht was unable to find enough jurors qualified to hear the case there.

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• Tobacco Suit Trial Will Be Held in March  

The trial for personal injury tobacco cases will be moved to Ohio County and tentatively begin in March, Ohio County Circuit Court Judge Arthur Recht told lawyers on both sides Thursday.

The trial will be the second part of the tobacco litigation, the first of which, a medical monitoring case, was completed in 2001. The second part deals with personal injury cases against the major tobacco companies, including Philip Morris USA, Brown and Williamson Holdings, R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co. More than 1,000 individual cases have been filed against those companies.

Recht said the trial will be handled in two phases, with the first phase asking the jury to decide if cigarettes are a defective product and if they are reasonably safe for the purpose for which they are intended. Jurors also will be asked to consider if the conduct of the tobacco companies justifies punitive damages. The first phase of the trial is scheduled to begin March 21, running from 8:30 a.m. to 5 p.m. four days a week until it is completed, Recht said.

"Not everyone will be totally happy with this, but we have to start somewhere," he said.

Kenneth McClain, representative of the plaintiffs in the case, voiced his concern with the trial being moved to Ohio County, as did Timothy Barber, who said he believed Recht was only moving the trial to Wheeling for his own convenience.

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• Major Tobacco Litigation Case Moves To Wheeling 

A major tobacco litigation case is moving to Wheeling, involving hundreds of plaintiffs from around West Virginia.

Ohio County Judge Arthur Recht was assigned the cases when they started in 2000.

The issue at hand is whether cigarettes are a defective product and if tobacco companies' conduct justifies damage awards to smokers.

Recht told NEWS9 the court sorted through hundreds of potential jurors in Kanawha County without success.

"For some reason, the only jurors we were able to get were about six jurors who said they could be fair. They didn't have a bias one way or the other for or against smokers, for or against the tobacco companies," Recht said.

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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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