Judge orders class action against tobacco cartel
Myron Levin, Los Angeles Times Saturday, September 21, 2002 
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2002/09/21/MN195648.DTL

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 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 likely would be enormous.

However, 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 Second Circuit Court of Appeals.

Tobacco industry lawyers said they will seek reversal of the order, and in his own ruling Weinstein suggested that 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.

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.

But 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."

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

 

Joseph W. Cherner, President
SmokeFree Educational Services, Inc.
http://www.smokefree.org

 

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