Judge orders huge class action suit in tobacco case

Observers say novel ruling is unlikely to be upheld

September 22, 2002|By Myron Levin | Myron Levin,SPECIAL TO THE SUN

Laying the groundwork for a tobacco case that would dwarf all others, a federal judge in Brooklyn, N.Y., has ordered that millions of injured smokers be lumped into a nationwide class that would share a single pot of punitive damages from cigarette manufacturers.

If upheld on appeal, the novel ruling by U.S. District Judge Jack B. Weinstein could result in cigarette makers paying untold billions into a giant fund, to be divided by formula among all Americans who can show proof of smoking-related injuries since 1993.

The ruling is meant to reform what amounts to a lottery system, in which a few plaintiffs may reap a windfall in damages, while a greater number suffering from identical smoking-related ailments win nothing at all.

No estimates have been made of the potential size of the class. But given estimates that more than 400,000 Americans die prematurely each year from smoking-related causes, it probably would be enormous.

But federal courts generally have rejected class action status for tobacco cases on grounds that individual differences among smokers - including when they started and how much they smoked - overwhelm the common issues. Some observers said Weinstein's order, which outlines a numbingly complex procedure for setting damages, is likely to be rejected by the 2nd Circuit Court of Appeals.

Tobacco industry lawyers said they will seek a reversal, and in his ruling Weinstein suggested the panel entertain an appeal.

Widely regarded as brilliant and unconventional, the 81- year-old Weinstein is known for crafting sweeping settlements involving toxic substances such as asbestos and Agent Orange. He had long signaled his desire to create a structure for reaching a global resolution of tobacco litigation, so his ruling wasn't unexpected.

Elizabeth J. Cabraser, a San Francisco lawyer whom Weinstein appointed lead plaintiffs counsel, said the ruling will help tobacco victims who want to sue but can't find a lawyer to do battle with the industry. Several hundred individual claims are pending in courts around the country, but there would be more if there were lawyers willing to take them.

This "gives smokers the opportunity to hold the tobacco companies fully accountable for all of the harm their conduct and their products have done over the years," Cabraser said.

William S. Ohlemeyer, vice president and associate general counsel with Philip Morris Cos., said the order "is inconsistent with where the law is on the issue of aggregating claims and treating them as class actions, especially in tobacco cases."

"Although we strongly disagree with Judge Weinstein's ruling, this order now makes it possible for an appellate court to decide these issues," he said.

Along with Philip Morris, defendants include R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Corp. and its parent British American Tobacco, Lorillard Tobacco, Liggett Group Inc. and UST Inc.

Stephen Gillers, a New York University law professor, described Weinstein's ruling as "quite remarkable" but probably doomed. "Jack Weinstein is probably the most procedurally creative judge sitting in the United States today, but here he's asking the court system to do something that I think is beyond its competence," Gillers said. There's "almost no chance that the 2nd Circuit will allow this to go forward in this way."

The order establishes a class of all U.S. residents who have smoked since 1993 and in whom was diagnosed at least one of 16 identified diseases, including emphysema, heart disease, and cancer of the lung, throat and bladder. The order makes no provision for members to opt out of the class and pursue claims on their own.

Weinstein's order sets a Jan. 20 start date for the first stage of a three-part trial.

Myron Levin writes for the Los Angeles Times, a Tribune Publishing Newspaper.

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