In Novel Tactic, Lawyers Seek Nationwide Tobacco Suit

A flotilla of the nation’s leading plaintiff lawyers asked a federal judge in Brooklyn, N.Y., on Wednesday to create a nationwide class action to consolidate all punitive damage cases against cigarette companies--a bold strike that could set the stage for a massive verdict.

A nationwide class action could lead to a verdict or settlement greater than the $145 billion recently awarded in a Florida class action that is now on appeal.

However, some analysts said, the move could ultimately be in the interest of the tobacco companies nonetheless. The potential advantage is that a nationwide case could provide the companies the sort of financial certainty they have been seeking without success in attempts to resolve tobacco lawsuits.

For now, however, the companies were having none of the consolidation, decrying the suit as an attempt to gain a settlement through blackmail and scoffing at the idea that it could lead to a major resolution.

“We will oppose any effort to certify any of these cases as class actions,” said William S. Ohlmeyer, vice president and associate general counsel of Philip Morris, the nation’s leading cigarette maker.

“Two dozen state and federal courts in other cases have concluded that you can’t treat tobacco cases as class actions,” Ohlmeyer said.

A class action could be created over the industry’s objections, although that could lead to appeals that could drag on for many years. The federal district judge in the case, Jack B. Weinstein of Brooklyn, virtually invited the plaintiff lawyers to file the case in his court.

Creative Attempt by Plaintiffs

Wednesday’s suit--which in some respects is highly unorthodox--is another sign of the creative attempts that plaintiff lawyers are making to generate a sweeping climax to the biggest money litigation in history.

The tobacco industry already has agreed to settlements that commit cigarette companies to pay nearly $250 billion over 25 years. But the industry still faces a bevy of other lawsuits that have forced the companies to spend hundreds of millions of dollars in defending themselves and have depressed their stock prices.

The move is in part a response to the Florida verdict earlier this year. Tobacco company lawyers have expressed confidence that the $145-billion punitive damage verdict in that case will be overturned. But even if it is, which is far from certain, cigarette companies face trials soon in West Virginia and Louisiana that also could yield large punitive awards, said John Coffee, a professor at Columbia Law School.

If that happens, the cases could result in “a run on the [tobacco industry] bank” in which citizens of some states win big awards that wipe out the ability of anyone else in the country to receive damages, Coffee wrote in a recent law review article. A consolidated punitive damages settlement could lead to a more rational allocation of money, he wrote.

Coffee has been retained by Weinstein to assist him in trying to resolve the tobacco cases. Weinstein, a jurist with long experience in handling mass injury cases, has handled suits involving asbestos and Agent Orange and has 10 tobacco suits pending. Last April, he said “the time for bringing a close to tobacco litigation is nigh,” but at the time industry lawyers rebuffed the idea of entering into settlement talks.

The proposal for a nationwide punitive damages class action faces many hurdles and skepticism from legal experts.

“I don’t think this will survive,” said Boston University law professor Susan Koniak, a critic of the tobacco companies and plaintiff lawyers.

“If Judge Weinstein certifies this as a class action, it is a direct challenge to the Supreme Court,” Koniak said, referring to recent Supreme Court decisions restricting the use of class actions in personal injury cases.

But attorney Matthew Myers, president of the the National Center for Tobacco Free Kids, called the suit “a very creative approach” and said it might fly.

All the other tobacco class actions that have been dismissed were seeking both punitive and compensatory damages for individuals, Myers said. The fact that this suit is seeking only punitive damages and therefore deals only with common issues of fact--the conduct of the defendants--may make a class action easier to sustain, he said.

Myers also said that this case differs significantly from the two recently decided by the Supreme Court in that both of those were filed as settlements, unlike this one.

A horde of normally garrulous plaintiff lawyers did not return calls Wednesday seeking comment. A source close to the litigation said the lawyers were anxious not to say anything publicly that would alienate the judge or the tobacco companies.

No Individual Punitive Damages Sought

The Wednesday filing recited a now-familiar litany of allegations against the cigarette companies, contending that they engaged in a conspiracy for more than four decades to conceal the danger of their products and the addictiveness of nicotine--a key ingredient in cigarettes. That conduct has led to 400,000 smoking deaths a year and generated huge public health costs, the lawyers said.

“The aggregate harm to plaintiffs and society caused by defendants’ misconduct, and the need to punish and deter defendants, is so extreme” that only a single, nationwide case can effectively vindicate the rights of injured smokers, they said.

The suit filed Wednesday is particularly unusual in that it does not seek punitive damages for individuals.

Under the proposal, existing compensatory damages cases for individuals would go forward separately. And any punitive damages awarded would not go to individuals. Instead, the money would be placed in a fund to be used for “the greatest possible public benefit,” such as medical and scientific research and public health programs.

If a bevy of separate actions continue to be pursued, “piecemeal punitive damage [verdicts]” in different states “would potentially exhaust defendants’ ability to pay” injured plaintiffs, the lawyers asserted.

“This suit raises a host of difficult questions,” said Alan Morrison, the director of the Public Citizen Litigation Group, an organization founded by Ralph Nader that has frequently challenged class action settlements on the grounds that they were unfair to victims.

Morrison said there is some support for the plaintiffs’ “very novel approach” in prior cases. But, he said, the idea poses a host of practical problems.

Among the lawyers representing plaintiffs are Ronald Motley of Charleston, S.C., who has made hundreds of millions of dollars representing people against asbestos and tobacco companies, and Norwood Wilner of Jacksonville, Fla., one of the few attorneys ever to win a personal injury case on behalf of an individual smoker.

Other prominent lawyers involved, all of whom have handled major class action cases, areStanley Chesley of Cincinnati, Elizabeth Cabraser and Robert Lieff of of San Francisco, Perry Weitz and Mel Weiss of New York, John Coale of Washington, D.C., and Wendell Gauthier of Metairie, La.

In addition to Philip Morris, the defendants include R.J. Reynolds Tobacco Co., British American Tobacco Corp. and its U.S. subsidiary, Brown & Williamson Tobacco, Lorillard Tobacco Co., Liggett Group Inc. and two now-defunct arms of the cigarette industry, the Council for Tobacco Research and the Tobacco Institute.

Soon after the suit was filed Wednesday, Weinstein issued an order directing the parties to come to his court Monday for a hearing on consolidating the cases. Later in the day, however, a source said that order was pulled back, giving the parties more time, perhaps 30 days, to make a response.

One lawyer who has been involved in the tobacco wars for several years and is among those who filed the new action said he thought Wednesday’s initiative, while worthy, faces tough sledding.

“I give this whole exercise a 1-in-40 shot,” he said, speaking on condition of anonymity. “This judge loves to put deals together and he is as good as anyone, but there is no deal at this time.”