Tobacco.org

• 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.

Jump to full article »

• 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.

Jump to full article »

• 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.

Jump to full article »

• 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.

Jump to full article »

• 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.

Jump to full article »

• 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?

Jump to full article »

• 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.

Jump to full article »

• 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.

Jump to full article »

• 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."

Jump to full article »

• 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.

Jump to full article »

• 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.

Jump to full article »

• 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.

Jump to full article »

• 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."

Jump to full article »

• 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.

Jump to full article »

• 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.

Jump to full article »