Lawyers to Appeal Tobacco Ruling

A consortium of lawyers will ask the U.S. Supreme Court to reverse a ruling that barred them from proceeding with an anti-tobacco lawsuit that would have been the largest class-action case in history, an attorney with the group announced Tuesday.

Speaking at a tobacco litigation conference in West Palm Beach, Fla., San Francisco attorney Richard Heimann said the alliance of 60 law firms will seek to overturn the appeals court ruling in New Orleans last month that barred them from bringing a single lawsuit against the industry on behalf of all tobacco users who claim they are now--or used to be--addicted to nicotine.

The lawyers have already begun pursuing an alternate strategy by filing statewide class-action suits. But they hadn’t said before now if they would challenge the appeals court ruling that served as a key victory for the cigarette makers.

The ruling May 23 by the U.S. 5th Circuit Court of Appeals rejected a lower court ruling that wold have allowed the lawyers to represent all smokers allegedly addicted to nicotine now or in the past--a vast class that might number between 30 million and 100 million people. The ruling came in the 2-year-old Castano case, named after lead plaintiff Dianne Castano, whose husband, Peter Castano, died of lung cancer at the age of 47.

The appeals court ruled that the case was too unwieldy, because of the potential number of claimants and conflicting liability laws in their home states. It also said that until plaintiffs achieved a measure of success in tobacco cases, a class action could not be considered a superior way to determine liability.

Some analysts believe an appeal by the Castano lawyers stands little chance of success, pointing out that three other circuit courts recently rejected nationwide class actions in product liability cases.

“We intend to continue, whether it be in a national class action or in some other fashion,” Heimann said at the gathering of dozens of pro and anti-tobacco lawyers.

Since the 5th Circuit Court’s ruling, Castano lawyers have filed statewide class actions against the tobacco firms in Louisiana, Maryland, New Mexico and the District of Columbia.

Members of the Castano legal team said complaints are being drafted for New York, California and other states.

Another anti-tobacco lawyer at the conference announced plans to file what would apparently be the first damage claim against a tobacco industry law firm.

South Carolina lawyer Ron Motley, a member of the Castano team who is also assisting several state attorneys general in pending claims against the industry, said Shook, Hardy & Bacon will be named as a co-defendant in one of the lawsuits.

During the last 40 years, the Kansas City, Mo.-based law firm has represented Philip Morris, Lorillard Inc. and Brown & Williamson Tobacco Corp. Motley did not reveal where the claim will be filed but said it will allege violations of the federal racketeering law, or RICO.

Among the state cases in which Motley is involved, a suit by the state of Texas that seeks to recover tax expenditures for smoking-related illness is believed to be the only one involving RICO claims.

Gary Long, an attorney with Shook, Hardy & Bacon called the threat “so vague I don’t have a reaction.”

“Anybody can say anything at a seminar, but whether [Motley] will sue, and what happens in court, is an entirely different matter,” Long said.

Mississippi Atty. Gen. Mike Moore, who filed the first state lawsuit against the industry in May 1994, predicted that by the end of the summer, 13 more states will go to court against the industry, joining the nine that have already sued.

Moore also said six as yet unnamed industry defectors are expected to serve as witnesses for the state, but he declined to give specifics.

Times wire services contributed to this report.