Jury Hands Tobacco Firms a Key Victory
The jury in a landmark West Virginia case ruled Wednesday that tobacco companies don’t have to underwrite medical tests for the state’s 250,000 smokers, which would cost hundreds of millions of dollars.
The verdict in Wheeling was a major victory for cigarette makers in the first case of its kind tried against them. A victory by plaintiffs would have increased the likelihood of similar monitoring cases in many other states.
After a day and a half of deliberations, the six-member jury found that smoking posed a risk of lung cancer and emphysema. But jurors also found that Philip Morris Inc., R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Corp. and Lorillard Tobacco Co. weren’t guilty of negligence, marketing defective products, or breaching a promise to develop safer cigarettes.
Had the companies been found liable, they would have been forced to pay for regular testing so current and former smokers would get early warning of cancer and other lung diseases.
“This is a huge victory--there’s no question,” said John Mulderig, associate general counsel for Philip Morris, the world’s biggest tobacco company.
Jeff Furr, an attorney for R.J. Reynolds, said the jury “sent a clear message” that those concerned about the risks “should quit--not sue and continue to smoke.” Plaintiffs lawyer Scott Segal could not be reached for comment.
Plaintiffs’ lawyers faced a serious handicap in that they were not allowed to try to prove their clients are addicted to nicotine and unable to quit.
Most courts have refused to allow tobacco cases to be tried as class actions, on grounds that questions about the health status and smoking habits of individual smokers predominate over common issues. In this case, Ohio County Circuit Judge Arthur M. Recht agreed over industry objections to allow a class-action trial. But he barred evidence concerning addiction--which he said would require inquiry into why individuals smoke.
The verdict “does suggest it’s very hard to make a case with one hand tied behind your back--if you’re not allowed to show addiction,” said Richard Daynard, head of the Tobacco Products Liability Project, an anti-tobacco group.
The case was the second statewide class action tried against cigarette makers. In the other, a Miami jury shocked the tobacco companies in 2000 by ordering them to pay $144.8 billion to an immense class of Florida smokers who had suffered tobacco-related ailments. The case is on appeal.
The West Virginia case excluded healthy smokers and did not seek monetary damages for the class, which included West Virginians who had smoked the equivalent of a pack of cigarettes per day for five years. Medical monitoring was the sole remedy sought by plaintiffs, though that would have been expensive enough.
Had the companies been found liable, class members at age 50 would have been eligible for annual CT scans for lung cancer at the industry’s expense for the rest of their lives. A biannual spirometry exam to detect emphysema or chronic obstructive pulmonary disease also would have been available to class members, starting at age 45. The cost for a set of the tests would be hundreds of dollars each time, so the total cost could have reached hundreds of millions or even billions of dollars.
The industry attacked the tests as an unproven way to reduce the toll from smoking.
Jury selection is underway in another medical monitoring case on behalf of all Louisiana smokers.
A huge settlement involving the diet-pill combination fen-phen included medical monitoring for users of the pills who hadn’t shown illness symptoms. In the 1999 settlement, American Home Products agreed to pay $3.75 billion to thousands of claimants, including $1 billion for tests for the onset of heart-valve disease.
Tobacco companies claim requiring monitoring for voluntary exposure to known hazards like smoking would be an improper extension of the law. But tobacco foes say monitoring is appropriate because the industry concealed the addictiveness of nicotine, enticing smokers to get hooked.
Tobacco stocks rose modestly on the news on the New York Stock Exchange. Philip Morris shares rose 58 cents to $47.58. RJR closed up 39 cents at $57.69. Loews Corp., parent of Lorillard, advanced 67 cents to $55.12. American depository receipts of British American Tobacco, parent of Brown & Williamson, fell 25 cents to $16.28 on the American Stock Exchange.
