Court kills class action tobacco suit

Law firm had sought money from industry for Maryland smokers

Individual suits planned

Plaintiffs' situations were too varied for a case, judges rule

May 17, 2000|By Scott Shane | Scott Shane,SUN STAFF

By a 4-3 vote yesterday, Maryland's highest court killed a class action suit filed against the tobacco industry on behalf of the state's smokers and their survivors, declaring that ailing smokers will have to sue individually.

The law firm of Peter G. Angelos, which filed the suit in 1996, said it will do that.

The firm has been contacted by about 3,000 smokers who want to sue over their illnesses, said John C. M. Angelos, Angelos' nephew and a member of the firm.

"I'm sure several hundred have died during the time this case has been on appeal," he said. Of three smokers named in the case as "class representatives" four years ago, two have died of smoking-related causes, he said.

The long-awaited ruling by the Maryland Court of Appeals marks the latest of many defeats in anti-tobacco lawyers' attempts to unite huge numbers of smokers in a single assault on the industry. Courts have rejected such lawsuits nationally and in more than 20 other states, allowing them to proceed only in Florida and Louisiana, said Mark Gottlieb, an attorney for the Tobacco Products Liability Project at Northeastern University in Boston. The project is an anti-tobacco think tank that has helped plot the legal challenge to the industry.

The landmark Florida case is scheduled to enter the punitive-damages phase Monday, with the possibility of a multibillion-dollar verdict that some observers think could threaten the solvency of some tobacco companies. Gottlieb said he expects a verdict of about $20 billion, which he said would force an increase in cigarette prices but would not bankrupt the industry.

The Maryland class action lawsuit rejected by the Court of Appeals yesterday, Richardson vs. Philip Morris, is separate from the lawsuit filed by the state of Maryland against the tobacco industry in 1996.

That case, in which the Angelos firm was hired to represent the state, sought to recover tax dollars spent to treat smokers under the Medicaid program. It was settled in November 1998, with the state set to collect more than $4.6 billion over the next 25 years.

Angelos and state Attorney General J. Joseph Curran Jr. are battling in court over the fee due Angelos in that case. Angelos is trying to collect the contingency fee of 25 percent of the state's settlement, or more than $1 billion, as called for in his contract.

The proceeds from the state's lawsuit go to such public purposes as medical research, anti-smoking programs and education. The class action sought damages for the hundreds of thousands of Maryland smokers or tobacco chewers who were addicted to nicotine or suffered from such tobacco-related diseases as lung cancer and heart disease.

Two years ago, Baltimore Circuit Judge Edward J. Angeletti certified the class in the case, a crucial step in bringing any class action case to trial and a victory for the Angelos firm.

In its 106-page opinion yesterday, the Court of Appeals majority ruled that Angeletti had erred in certifying the class, effectively ending the lawsuit. The court said the differences between individual class members -- such as what brands they smoked, what advertising persuaded them to smoke, and when and where they got sick -- were too great to allow a class action to be "manageable."

"Our analysis of the extent of the individual issues involved in this litigation leads us to conclude that individual issues overwhelmingly predominate over common issues," wrote Judge Irma S. Raker for the majority, which also included judges John C. Eldridge, Alan M. Wilner and Glenn T. Harrell Jr.

Chief Judge Robert M. Bell and Judges Lawrence F. Rodowsky and Dale R. Cathell joined in a dissent, arguing that the appeals court should not have agreed to intervene so early in the case.

"It's a great win for the tobacco companies," said Michael York, a Washington attorney who represents Philip Morris Inc., the largest U.S. tobacco manufacturer. "This case would have plunged the Maryland court system into a mountain of unmanageability."

Sherrilyn A. Ifill, a University of Maryland law professor who argued the appeal for the plaintiffs, called the ruling part of a "disturbing" trend of courts rejecting class actions. Given the difficulty and expense of filing individual lawsuits, she said, "it means hundreds of thousands of people won't get their day in court."

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