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UPDATE - W.Va. court upholds verdict favoring tobacco firms 

The West Virginia Supreme Court has upheld a verdict that four major tobacco companies do not have to pay for annual medical testing for healthy and former smokers, the tobacco makers said on Thursday.

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High court backs tobacco verdict 

The West Virginia Supreme Court upheld yesterday a jury's decision that the tobacco industry should not have to pay for medical tests that could lead to the early detection of lung cancer and other health problems in about 270,000 healthy smokers.

R.J. Reynolds Tobacco Co. was one of the defendants in the case.

The court voted 3-1 to reject the smokers' appeal, which argued that they deserved free, routine medical monitoring because the cigarette companies sold a defective product with no regard for their customers' health.

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West Virginia Supreme Court Upholds Jury Verdict in Favor of the Tobacco Industry in Medical Monitoring Case 

In affirming the jury's decision, the court found that there was not a "serious challenge to the jury's conclusion ... 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.'"

Jeff Furr, the attorney for R.J. Reynolds Tobacco Company who served as the lead trial counsel for the tobacco industry, said, "The jury sent a clear message with its verdict: Tobacco companies are not liable for the inherent risks associated with smoking, and if smokers are concerned about those risks, they should quit -- not sue and continue to smoke. The West Virginia Supreme Court simply refused to upset the jury's verdict, rejecting the notion that healthy smokers and former smokers need, or would benefit from, the medical monitoring program that was proposed by the plaintiffs' lawyers."

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Court affirms verdict in tobacco medical monitoring case 

The state Supreme Court on Thursday upheld a 2001 jury decision that tobacco companies shouldn't have to pay for medical monitoring for some 270,000 healthy smokers.

The court voted 3-1 to reject the smokers' appeal, which argued they deserved free routine medical tests because cigarette companies sold a defective product with no regard for their customers' health.

"I'm very worried that union health and welfare funds, and small and medium businesses that have insurance for their employees, are going to have to start paying for these very expensive tests -- while these out-of-state tobacco companies are laughing all the way to the bank," said attorney Scott Segal, who represented the smokers.

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B&W Tobacco Comments on West Virginia Supreme Court Victory 

"During the trial, we presented evidence that the medical monitoring procedures requested by the plaintiffs are not reasonably and medically necessary," said Jeff Raborn, attorney for Brown & Williamson. "Further, the overwhelming weight of case law shows that this case should have been rejected as a class action from the outset. The case never should have been tried. We were obviously pleased with the original jury verdict and are gratified by the West Virginia Supreme Court's decision affirming that verdict."

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• State Supreme Court Affirms Defense Verdict in West Virgina Medical Monitoring Lawsuit 

Philip Morris USA said today's decision by the West Virginia Supreme Court affirming the defense jury verdict in the first tobacco medical monitoring class action ever tried is consistent with established law and the facts of the case.

"The jury had little trouble with the facts of the case, it took the jurors less than two days to reach a decision and the Supreme Court recognized the validity of this jury's verdict in rejecting the plaintiffs' appeal," said William S. Ohlemeyer, Philip Morris USA vice president and associate general counsel.

In its ruling, the state's highest court upheld a Nov. 14, 2001 jury verdict in favor of Philip Morris USA and the nation's other major tobacco companies in a class-action case seeking medical monitoring for most of the state's healthy smokers and many former smokers who have not contracted a smoking-related illness.

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• 1,100 Smokers Move Ahead With Lawsuit [Source: State Journal, The Publication] 

Sick West Virginia smokers may have their day in court at last.

The Supreme Court of Appeals has refused to consider a ruling by Ohio County Circuit Judge Arthur M. Recht, which means an estimated 1,100 plaintiffs can move forward with their lawsuits against cigarette makers.

Recht scheduled a status conference for all attorneys to meet Feb. 5 in Ohio County. . . .

After reviewing extensive legal articles and theories, particularly a 1992 U.S. Supreme Court of Appeals opinion Cipollone v. Liggett Group Inc. - Recht came to a different conclusion. He said the Labeling Act did not shield, or preempt, certain non- advertising promotions from liability.

Recht told the defense attorneys he realized his turnabout was not fair, and he put the case on hold while the defense filed its certified a question to the Supreme Court, asking the justices to consider Recht's ruling.

In mid-January - six months after the certified question was filed - the justices decided to refuse the question, which means the case at last can move forward.

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Tobacco Defense Team Criticizes Judge Recht Ruling [Source: State Journal, The] 

Ohio County Circuit Judge Arthur M. Recht has gone against the grain in a ruling he made in a massive personal injury lawsuit being waged in Ohio County against cigarette makers, the companies have said.

The West Virginia Supreme Court of Appeals, however, did not see the need to change Recht's decision, and the case now will resume its progress toward trial

Recht ruled last year that cigarette makers would have to answer certain accusations that they did not do enough to warn the public about the dangers of smoking, and that they concealed the dangers from the public. The tobacco companies believe some of their actions are immune to liability because of the 1969 Cigarette Labeling and Advertising Act, which required warning labels for cigarette packages and advertising.

But Recht decided complying with the federal law does not automatically preclude the companies from liability in certain non- advertising promotions. The judge said the 1992 U.S. Supreme Court of Appeals opinion in Cipollone v. Liggett Group Inc. allows the companies to be held liable for certain post-1969 fraudulent concealment claims brought in state court.

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Smokers want another trial: ; Evidence unheard, lawyers argue, in medical monitoring lawsuit [Source: Charleston Gazette, The] 

The state Supreme Court heard arguments Wednesday on whether a lower court should have to re-hear a lawsuit in which West Virginia smokers want tobacco companies to pay for special testing for lung cancer, emphysema and chronic obstructive pulmonary disease. . .

The jury declined to find that the companies make a defective product and rejected the claim that they should pay for hundreds of millions of dollars in testing for smoking-related diseases.

The Supreme Court will decide whether the smokers should get a new trial based on claims by their lawyers that the trial court made legal errors and that the jury was biased against the smokers from the beginning.

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High court hears tobacco lawsuit 

The lawyers for about 250,000 current and former smokers are still trying to make big tobacco pay for their clients to get annual checkups for cigarette-related diseases, even after a 2001 jury rejected their claims.

Attorneys Scott Segal and Deborah McHenry took their fight for a new trial to the state Supreme Court Wednesday, saying that the tobacco companies "hijacked" the first trial in Wheeling by focusing on the shortcomings of smokers instead of the defects of cigarettes.

"It's not about the smokers, which is what they want it to be about," Segal said. "It's about what they did, which is intentionally design these cigarettes to appeal to children."

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New Trial Sought In Tobacco Case 

Lawyers for plaintiffs in a landmark West Virginia tobacco "medical monitoring" case, that an Ohio County jury decided in favor of the defendants, have asked the state Supreme Court for a new trial.

On Wednesday, an attorney for the 260,000 healthy state residents in the class action told the justices that "big tobacco" industry had "hijacked" the case.

"The focus is on the product," Charleston lawyer Scott Segal argued.

"They didn't care about safety. They cared about delivering a specific amount of tar and a specific amount of nicotine in their product."

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• New trial urged for tobacco medical monitoring lawsuit 

Lawyers for some 270,000 West Virginia smokers asked the Supreme Court on Wednesday for a new trial after a 2001 jury rejected their lawsuit demanding the tobacco industry pay for lung cancer-type screenings.

The justices were told the industry "hijacked" the first-of-its-kind class action case by shifting blame from the alleged defects of cigarettes to smokers who fail to quit.

"The focus is on the product," Charleston lawyer Scott Segal argued. "They didn't care about safety. They cared about delivering a specific amount of tar and a specific amount of nicotine in their product."

Segal and co-counsel Deborah McHenry said the four tobacco companies named in the lawsuit admitted that the risks of smoking outweigh any benefit and that cigarettes have no practical use. "The defendants said, 'We make it, we put it out there, but don't use it, just quit,"' McHenry argued. "That makes a mockery of product defect law."

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• Tobacco case will be heard 

The state Supreme Court agreed to hear a case challenging the tobacco industry's cigarette marketing practices and testing the limits of West Virginia's medical monitoring law.

About 250,000 current and former smokers want four large tobacco companies to pay for annual medical tests to detect emphysema, lung cancer and other cigarette-related diseases. A jury rejected their claims in 2001.

The justices voted 4-0 this week to consider the smokers' request for a new trial. Justice Robin Davis abstained because her husband, Scott Segal, is one of the smokers' lawyers. The case has not been scheduled for oral arguments yet.

The smokers' trial was one of the first so-called medical monitoring trials in the country. In reviewing the case, the state Supreme Court justices will be asked to decide the limits of their controversial 1999 decision allowing healthy plaintiffs to sue for the cost of medical testing.

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• Judge dismisses more than 100 plaintiffs from tobacco lawsuit [Source: The State Journal] 

WHEELING - An Ohio County judge has dismissed more than 100 plaintiffs from a personal injury mass litigation against national tobacco companies.

Lawyers suing cigarette makers were supposed to notify defense attorneys when plaintiffs became classified as "in extremis," meaning death was imminent or at least likely in the future, so the defense could depose those plaintiffs. Ohio County Circuit Judge Arthur M. Recht ruled last week in Wheeling that 118 deceased plaintiffs were dismissed from the lawsuit because defense counsel was not alerted to their declining health and expected deaths.

Recht said because the defense was deprived the opportunity to hear the testimony from the deceased through a deposition, they could not be included in the mass litigation.

What the defense is calling a "fairly significant ruling" follows a decision by Recht during the summer to dismiss 52 plaintiffs because their filing information was incomplete.

Fewer than 1,100 plaintiffs now are estimated to remain in the lawsuit, which is scheduled for trial early next summer.

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• Judge delays tobacco lawsuit in Wheeling for almost a year [Source: The State Journal] 

A personal injury lawsuit representing more than 1, 000 ill or deceased West Virginia smokers will be delayed for almost a year because of problems with a key piece of evidence.

Earlier this year, Ohio County Circuit Judge Arthur M. Recht decided the tobacco company defendants should have access to reliance materials for a monograph that stipulates low-tar cigarettes are no safer for smokers than traditional brands. Defendants include Philip Morris, R.J. Reynolds, Brown & Williamson, Lorillard and British American Tobacco companies.

Dr. David Burns, a researcher with the University of California at San Diego (UCSD) School of Medicine, is one of the plaintiffs' principal expert witnesses and the lead author of the monograph, "The Risks Associated with Smoke Cigarettes with Low Machine- Measured Yields of Tar and Nicotine." The paper was published late last year by the National Institutes of Health in cooperation with the American Cancer Institute.

For months Burns refused to release certain computer data codes that accompany death statistics for smokers of low-tar cigarettes. Now, the university says the data codes belong to them, not Burns.

A national lawsuit pending in federal court in Washington, D.C. also has requested the data codes and as of a hearing in Wheeling last week, the university has decided to coordinate a release of the information with the tobacco companies.

But Jeff Furr, attorney for R.J. Reynolds and lead counsel for the cigarette makers, told Recht his team would need at least until January 2003 to study the data and test the veracity of Burns' findings.

Jury selection was slated to begin in September, but Recht said pushing forward without the monograph "would be a lie. There is no question from the depositions (of Burns) that you can't try this case without it ... It shapes many issues in this case, " he said.

With Recht's trial schedule packed at the start of 2003, he decided it would be best to delay the tobacco lawsuit until the May jury term in Ohio County, with jury selection tentatively scheduled for June 2, 2003.

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