Blankenship Press Coverage

Blankenship v R.J. Reynolds et al

January 22, 2001

“Smokers to restructure suit against Big Tobacco”

By The Associated Press.

WHEELING – Whether a landmark medical monitoring lawsuit by healthy West Virginia smokers will be retried as a class-action case boils down to one question: Is nicotine addiction unique to every smoker or a universal problem with a product design that is beyond a smoker’s control?”

“Ohio Circuit Judge Arthur Recht, who declared a mistrial Monday in the precedent-setting lawsuit, will hear arguments on that issue Feb. 19, when attorneys for five tobacco companies and some 250,000 West Virginia smokers return to court.”

“R.J. Reynolds lawyer Jeff Furr vowed to renew his fight that it should not be a class action, arguing that individual behavior and reasons for smoking destroy the unity required in class-action litigation. “We need to develop that issue further for the court,” he said. “I promise we will be making that argument.”“

”Recht declared the mistrial after a witness last week made a veiled and apparently inadvertent reference to addiction, an issue the smokers had said would not be part of their case for annual, industry-funded medical tests.”

“The smokers had pledged to remove all references to nicotine, nicotine delivery, habit, the inability to quit and any other euphemism for addiction in exchange for class-action status. However, every witness had struggled with the limitation, including addiction expert Jack Henningfield, a consultant with Pinney Associates of Bethesda, Md.”

“”If we continued on with addiction out of this case, we’re just burying our heads in the sand,” Recht said Monday. “No wonder every witness said it: They believe it. “To tell Dr. Henningfield he can’t talk about addiction is like telling Michael Jordan not to talk about basketball.”“

” The lawsuit currently covers West Virginians who have smoked the equivalent of a pack a day for five years since 1995, but who do not currently have a tobacco-related illness. They want a court-supervised medical board created to administer free annual diagnostic tests for lung cancer and emphysema.”

“ West Virginia’s case is the first of its kind to make it to trial in the United States. In at least a dozen other cases around the country, judges have denied class-action status in medical monitoring lawsuits against tobacco companies. One other, in Louisiana, is expected to go to trial later this year.”

“The West Virginia smokers say early detection could save or prolong lives. The tobacco industry, however, argues the tests the smokers want are experimental and so far unproven in changing the outcome for anyone who becomes sick.”

“Lawyers for R.J. Reynolds, Philip Morris, Lorillard, Liggett and Brown & Williamson also argue the only way to lower the risk of disease is to quit smoking. Both sides agreed Monday that Recht had no choice but to declare a mistrial once addiction entered the case. The defendants had, from opening statements on, avoided the subject and were suddenly forced to defend an issue they had not been expecting.”

“”A mistrial was an absolutely necessary step to take,” Furr said. “The court had to put the parties back on equal footing.””

“Adding addiction back into the mix, however, will create more work for the tobacco companies because they will likely introduce evidence and witnesses they did not plan to use in the first trial.”

“For the smokers, however, the judge’s ruling was a victory. It essentially restores parts of the case they had included before class certification.”

“”It will make it much easier to try the case. It will be much more succinct,” Charleston attorney Scott Segal said. By directly addressing addiction, the case also will be easier for jurors to understand. “It’s really streamlining our case,” he said.”

“Recht conceded the trial has been an education for him. He initially ruled that addiction was not an issue because medical monitoring requires only “proof of significant exposure” to a hazardous substance.”

“”With the ability of some hindsight, there is no question that issues relating to nicotine, nicotine delivery, addiction, habit and the ability to quit smoking all are and should be an integral part of this case,” he said.”

“In restructuring their case for a future trial, the smokers’ attorneys might want to focus on product design and liability, Recht suggested. It could be argued that addiction is caused by the manufacturers’ negligence.”

“”If addiction is part of the case, it’s part of the design of the product,” he said. “Whether a person is or is not addicted is not really the issue.” Recht said he wants to retry the case soon. “The only new thing is the addiction issue is out of the closet and into the courtroom,” he said. “I’m much more comfortable with the posture of this case now. Everything was not really being discussed and now it will. And that’s good.”“

November 14, 2001

Defendant verdict. November 14th, 2001

By THE ASSOCIATED PRESS Filed at 6:45 p.m. ET.

WHEELING, W.Va. (AP) — Jurors rejected a lawsuit Wednesday that sought to force four tobacco companies to pay for annual medical tests for 250,000 healthy West Virginia smokers. The six-person jury, nearly all of them former smokers, deliberated for 10 hours before concluding that people with a five-year, pack-a-day habit have an increased risk of disease but don’t need medical monitoring.

“A verdict was returned for the defense on November 14, 2001, finding that the defendants had not engaged in any tortious conduct, that the plaintiffs failed to show the necessity for medical monitoring, and that the defendants had not acted willfully or wantonly.”

“Jurors also concluded that cigarettes are not a defective product and manufacturers were not negligent in designing, making or selling them. “The case never should have been tried,” said John Finley, attorney for cigarette maker Brown & Williamson. The lawsuit, essentially structured as a product liability case with medical monitoring as the proposed remedy for wronged consumers, was the first of its kind to be tried in the United States.”

“The plaintiffs said the industry-funded screening program could lead to the early detection of lung cancer, emphysema and chronic obstructive pulmonary disease. They contended they deserved the tests because Philip Morris (news/quote), R.J. Reynolds, Lorillard and Brown & Williamson manufactured and sold a defective product with no regard for their customers’ health.”

“The smokers wanted free annual lung tests for people 45 and older, and more sophisticated exams for those 50 and older that could potentially reveal disease earlier than chest X-rays. The tobacco companies argued that the testing technology is experimental and unproven at diagnosing disease early enough to make any difference. R.J. Reynolds attorney Jeff Furr also noted that the plaintiffs could have continued to smoke while being tested.”

“”They wanted to have their cake and eat it, too,” said Furr, who said the program would have cost hundreds of millions of dollars to create. Furr said he believed the verdict showed jurors were impressed with the research tobacco companies have done to try to reduce the hazards of smoking. `It’s a recognition by this jury that cigarettes are risky, but everyone knows they are risky and the companies have done all they can to make them less risky,” Furr said.”

“Jury foreman Mark Burris said he wasn’t convinced monitoring would help the plaintiffs. “It came down to, ‘If you smoke, stop. If you don’t smoke, don’t start,”’ Burris said. “The only way to stop latent disease is stop smoking. That was the bottom line for all the jurors.” Sott Segal, an attorney representing the smokers, said jurors may have been swayed by the fact that the monitoring technology is relatively new. He said he believes the tests will become common.”

“Segal also said no decision has been made whether to appeal. The first attempt to try the case ended with a mistrial in January after a witness made an apparently inadvertent reference to addiction. That was one of the words banned from testimony after the tobacco companies argued it raised issues of individual behavior and reasons for smoking. General references to addiction were permitted in the latest trial.”

“A similar case also is in the courts in Louisiana, but it differs from West Virginia’s in several ways. The Louisiana case asks, for example, that tobacco companies help smokers quit.”

November 8, 2007

“Justices refuse to hear tobacco companies’ petition”

Charleston Daily Mail. Justin D. Anderson Capitol Reporter

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. The justices normally do not comment on their decisions on granting or refusing petitions.”

“The tobacco lawyers had argued that Recht’s plan violated the defendant tobacco companies’ rights by having a jury decide what punitive damages would be before the companies could challenge the evidence brought by the individual plaintiffs.”

“Lawyers for the plaintiffs said the tobacco companies were just trying to stall the trial. They called the tobacco companies’ petition “appallingly disingenuous.””

“Recht’s plan has the trial proceeding in two phases. In the first, a jury will decide general liability of the tobacco companies and determine a scope of punitive damages, which are punishment for a defendant’s wrongdoing. The individual cases won’t be considered until the second phase of the trial.”

“Justices had previously approved of Recht’s plan in 2005. But the tobacco companies petitioned the court to have another look following a recent U.S. Supreme Court decision involving Philip Morris USA, one of the defendants in the state case.”

“The decision involved the widow of an Oregon man who sued Philip Morris over her husband’s death from lung cancer. A jury awarded Mayola Williams $79.5 million in punitive damages and $821,000 in compensatory damages.”

“The U.S. Supreme Court justices overturned the verdict and said jurors seemed to have punished the cigarette maker for harm to other smokers besides Williams’ late husband, Jesse, according to a New York Times synopsis of the case. The tobacco lawyers in the state case say the same will happen here if Recht’s plan is allowed to stand.”

“The defendants in the case are Philip Morris USA; Brown and Williamson Holdings; R.J. Reynolds Tobacco Company; and Lorillard Tobacco Co. The companies make popular cigarette brands like Marlboro, Pall Mall, Camel, and Newport.”

“The state case began back in 1999 when Justice Larry Starcher transferred about 120 tobacco lawsuits to the Mass Litigation Panel on which Recht serves. About 1,000 plaintiffs quickly joined in the case. According to court documents, the plaintiffs alleged 24 varieties of alleged injury including cancer, heart disease and breathing problems. The plaintiffs accuse the companies of fraud, civil conspiracy and general negligence.”

February 25, 2008

“Court Rules Against Tobacco Companies”

New York Times.

WASHINGTON (AP) — The Supreme Court on Monday rejected a tobacco industry request to intervene in a lawsuit by over a thousand West Virginia smokers.

The justices declined to examine a trial procedure in which a jury first determines whether smokers as a group are entitled to punitive damages before establishing whether any single smoker is entitled to compensation. Later, a new jury addresses issues unique to each alleged smoking victim who sued. West Virginia courts are allowing the approach, which has been used in other types of lawsuits, including claims for asbestos exposure.

The second phases of such trials rarely occur, because the two sides usually settle once they know the value of the case. Tobacco companies oppose use of the legal device, which lawyers call ”reverse bifurcation.”

The tobacco industry said a jury doesn’t know until later in a case whether any smoker was actually harmed or how serious any injury was; which defendants if any were responsible; or the amount of compensatory damages any defendant owes to smokers.

In addition to helping resolve suits over asbestos exposure, reverse bifurcation has been applied to claims against makers of the dangerous diet drug fen-phen. In asking the justices not to take the case, lawyers for the smokers said further delay would mean that most of their clients would die before their cases could be tried, ”thus affording the defendants a free pass” for their alleged misconduct.

The smokers say the companies secretly agreed not to market a truly safer cigarette while publicly proclaiming the safety of their own particular brands. The first phase of the trial was scheduled to begin March 18. The case is Philip Morris USA v. Accord, 07-806.”

February 25, 2008

“Supreme Court Won’t Intervene In West Virginia Tobacco Suits: Justices Reject Tobacco Appeal”

Wall Street Journal
Associated Press February 25, 2008 3:52 p.m.

The Supreme Court on Monday declined to intervene in West Virginia legal proceedings involving more than 1,000 individual lawsuits against the tobacco industry.

The four major U.S. tobacco companies have opposed the way West Virginia courts have consolidated the individual suits into one large multi-phased trial proceeding. The appeal, rejected by the high court without comment, sought Supreme Court intervention before the March 18 start date of the trial’s first phase.

However, on Feb. 11 a West Virginia judge put the cases on hold, pending the outcome of a U.S. Supreme Court ruling in a separate Maine tobacco lawsuit against Altria Group Inc.’s Philip Morris USA unit. That case will be heard in the fall, putting off litigation in the West Virginia case until 2009.

“West Virginia’s approach to adjudicating mass-tort cases is deeply and fundamentally flawed,” the tobacco companies said in the appeal. The companies added that they believe the legal proceedings violate Supreme Court precedent, including recent punitive damages decisions, requiring the high court to hear the case “to bring West Virginia’s mass-tort litigation system into compliance with constitutional standards.” Companies named in the lawsuit include Philip Morris; Brown & Williamson Holdings Inc., a unit of British American Tobacco PLC, Lorillard Tobacco Co., a unit of Loews Corp.; and R.J. Reynolds Tobacco Co., a unit of Reynolds American Inc.

Attorneys representing the smoker lawsuits defended the state court system’s handling of the cases. West Virginia’s court system first consolidated tobacco-related product liability lawsuits in 1999. Since then, legal wrangling over the proceedings has bounced around in the state court system. The first phase of the trial will involve jury determinations of liability and punitive damages issues that will cover all the smoker cases. (Philip Morris USA v. Accord)”

November 3, 2014

W.Va. Supreme Court Affirms Judgment For Big Tobacco

By Caroline Simson Law360, New York 7:32 PM ET

Case number 13-1204 in the West Virginia Supreme Court of Appeals

“The West Virginia Supreme Court on Monday affirmed a state court judgment that sided largely with Big Tobacco in consolidated litigation involving hundreds of personal injury actions, ruling that the lower court didn’t give faulty instructions to the jury or otherwise err in dismissing the claims.

The appeal was brought by plaintiffs who filed their lawsuits between 1998 and 2001 and claimed they were injured as a result of smoking cigarettes that were manufactured by Philip Morris USA Inc., R.J. Reynolds Tobacco Co., Brown & Williamson Holdings Inc. and Lorillard Tobacco Co. In a 3-2 divided opinion, the five-judge panel affirmed a state court’s Oct. 28, 2013 judgment, which addressed general liability issues common to all the tobacco companies.

The panel rejected each of the plaintiffs’ six arguments, including that the court had erred by misstating the legal standard for strict liability. Because the court’s instructions asked the jury to determine whether the manufacturer used reasonable care in designing and manufacturing the product at the time it was marketed, not whether it could possibly have been made better or more safe, it had complied with the applicable standards, the panel found.

Nor was the court mistaken in requiring a standard of proof for punitive damages by “clear and convincing” evidence, rather than proof by a “preponderance of the evidence,” the panel concluded. The panel noted that the petitioners would only have been harmed had they prevailed at trial on their claim that the tobacco companies had fraudulently concealed the known hazards of smoking.

Even given that the plaintiffs had prevailed in their failure to instruct claim, it wasn’t enough to establish that the companies had intentionally or maliciously withheld information about the cigarettes, the panel found.

The plaintiffs had claimed that their post-1969 claims for fraudulent concealment, statutory fraud and strict liability use-defect were not preempted by the 1969 Federal Cigarette Labeling and Advertising Act, but the panel rejected that argument as well. That law precludes states from passing their own labeling laws on cigarette advertising or packaging, according to the opinion.

“Petitioners claimed that respondents should have promulgated warnings and instructions for the use of cigarettes, and otherwise disclosed allegedly concealed information, ‘through the same channels of communication they used to market their defective tobacco to the public.’ After 1969, such a claim is clearly preempted,” the panel wrote.

The panel rejected the petitioners’ claims that the lower court erred by submitting an instruction that forced the jury to find “all cigarettes” manufactured by respondents were equally unsafe, saying they mischaracterized the lower court’s actions. Instead, the jury was instructed to find whether “all cigarettes” were “not reasonably safe” in order to impose liability.

Nor did the court make a mistake in preventing the petitioners from questioning jury members about their “personal choice” of whether or not to smoke. The plaintiffs had argued that this was a core issue at trial, as evidenced by two previous mistrials that resulted from potential jurors expressing an intrinsic bias against smokers based on “personal choice.”

But the panel found that the record didn’t support the plaintiffs’ argument that the lower court prevented the inquiry, noting the plaintiffs couldn’t cite a single question that they sought to ask but were prohibited from doing so.

The panel also rejected the petitioners’ argument that the lower court had erred in dismissing hundreds of plaintiffs’ complaints with prejudice because they hadn’t been deposed prior to their deaths, finding that it had been the plaintiffs themselves who had insisted on the time line that required plaintiffs to be deposed or to submit their baseline medical information by March 1, 2000.

The judgment upheld in Monday’s decision was for part one of the trial, according to the opinion. A second part of the trial, in which separate individual juries, judge or judges will independently address issues unique to each plaintiff’s compensatory damages and any other individual issues in reasonably sized trial groups or on an individual basis, is still pending.

Chief Justice Robin Jean Davis and Justices Brent D. Benjamin, Menis E. Ketchum II, Margaret L. Workman and Allen H. Loughry II sat on the panel for the West Virginia Supreme Court. Attorneys for the parties couldn’t be reached for comment on Monday.”

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