Md. smokers get OK to file suit as group Cigarette makers lose bid to force individual lawsuits

Key class certification

Judge's motion seen as likely to influence courts in other states

January 29, 1998|By Scott Shane | Scott Shane,SUN STAFF

A mammoth tobacco class-action suit filed on behalf of thousands of ailing Maryland smokers yesterday cleared a major legal hurdle when a judge rejected cigarette makers' arguments that smokers should be required to file individual lawsuits.

The lawsuit, filed by Baltimore attorney Peter G. Angelos, is the fourth of the private class-action lawsuits filed in 26 states to meet a key test known as class certification. It clears the way for a trial in September 1999 to examine the plaintiffs' claim that the tobacco industry committed fraud by covering up for many years what it knew about the dangers of smoking.

In a 69-page opinion, Baltimore Circuit Judge Edward J. Angeletti found that the arguments of smokers suing cigarette makers would be so similar that "judicial economies" dictate that they be united in a single case. He noted that he was not ruling on the merits of the plaintiffs' fraud claims, which must be proven at trial.

Angelos, the Orioles owner, who has earned millions from similar suits against asbestos manufacturers, praised the ruling.

"The history of tobacco litigation shows the industry's unswerving preference for forcing individuals to fight a battle which few people by themselves can afford to fight," he said in a statement. "The class action process is the proper measure for addressing that inequity."

John P. Coale, a Washington lawyer who chairs the national committee overseeing the class-action tobacco cases, said the Maryland ruling is likely to influence courts in other states. Classes of smokers have been certified in lawsuits in Florida, Louisiana and New York and rejected in Pennsylvania, he said.

"Certification is at least 40 percent of the battle," Coale said. "And the more certifications you have in your pocket, the better you do. There's a momentum, because the judges read one another's rulings."

James E. Gray, a lawyer representing the tobacco companies, said last night he had not read the ruling and could not comment on whether the industry would file an appeal on the certification issue.

The private class-action lawsuits are separate from the suits filed against the tobacco companies by attorneys general in 41 states, including Maryland. The attorneys general are seeking to recover billions spent on medical bills of smokers covered by Medicaid, as well as forcing reductions in advertising and other changes.

The Medicaid lawsuits have been settled in Mississippi, Florida and Texas for nearly $30 billion, to be paid over 20 years. Minnesota's lawsuit is on trial in St. Paul. Maryland's is set for trial early next year.

In addition to filing the Maryland class-action suit, Angelos has been hired by Attorney General J. Joseph Curran Jr. to provide legal muscle for the state lawsuit in return for 25 percent of any recovery. Angeletti yesterday rejected a tobacco industry motion claiming Angelos has a conflict of interest in representing both the state and Maryland smokers in the two lawsuits.

The Maryland class-action lawsuit was filed in 1996 naming three "class representatives," all Baltimore smokers: Mildred Richardson, 67, who suffers from heart disease and emphysema; Karol Potter, 49, who has emphysema; and Lonza Cutchin, 73, who has lung cancer and emphysema. Richardson also represents the estate of her late husband, James, also a smoker, who died of heart disease at age 69 in 1994.

Under yesterday's ruling, the class is defined as all Marylanders who have suffered illness or died as a result of smoking cigarettes or using smokeless tobacco. The trial will determine how far back claims will be permitted.

Before trial, a notice will be published asking smokers who do not wish to be part of the class to file a document "opting out" to preserve their right to sue individually.

Lawyers have not estimated the potential size of the class, but it could be as many as several hundred thousand people. The federal Centers for Disease Control and Prevention estimate that 732,000 Maryland adults currently smoke, and 7,370 of them die each year of smoking-related disease.

Pub Date: 1/29/98

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