West Virginia Tobacco Litigation (Wheeling, West Virginia)
West Virginia’s version of Florida’s Engle litigation has begun in Wheeling, West Virginia, before Honorable Judge Arthur Recht, of the First Judical Circuit.
In the Engle litigation, Florida’s Supreme Court sustained the liability findings in a massive class action, but required individual trials for plaintiffs to establish class membership, legal cause, and damages.
In West Virginia, the litigation has similarly been divided into two phases. Phase 1, which is now underway in Wheeling, will determine whether the cigarette companies’ conduct warrants compensatory and/or punitive damages. If the jury finds in favor of the plaintiffs, subsequent trials will determine individual liability and actual damages.
In his opening statement on behalf of hundreds of plaintiffs, Kenneth McClain (Humphrey, Farrington McClain) told the jury, “This case is about corporate responsibility,” as he showed the jury secret Tobacco company studies identifying carcinogens in cigarettes long before the Tobacco companies acknowledged the dangers. One document calculated the public life expectancy improvements that might result if they changed the cigarette formulas.
“The individual issues of the case and the individual smoker are to be decided later,” said Mr. McClain. “Another jury will decide those issues for the individuals. But this case involves corporate responsibility, and the corporation’s decision-making process here. And you have to decide whether they lived up to their obligations under the law — the obligations that they recognized they had, the paramount responsibility that they claimed to have for the health of their customers.”
“In written memos,” Ken McClain continued, “they boldly acknowledged that what they were really doing was creating doubt about what they scientific community was saying.” He showed a confidential 1972 memo [see below], which stated that the Tobacco industry had employed a single strategy for twenty years to defend itself: “creating doubt about the health charge without actually denying it.”
“They were actively concealing the information that they had,” said Mr. McClain, “and I think that will justify your findingng in this case that they were reckless and intentional, and that a future jury like this one should have the opportunity to consider, depending on the circumstances, punitive damages.”
For R.J. Reynolds, Jeff Furr (King & Spalding) told the jury that the tobacco companies had defended their product, which they had a First Amendment right to do, by saying that they did not agree that the available studies proved that cigarettes caused cancer. However, for purposes of research and development, the tobacco companies proceeded as if they claim that cigarettes caused cancer had been proven, and embarked on a serious development effort to decrease the cancer risk by making cigarettes safer.
For Philip Morris, Frank Kelly (Shook Hardy Bacon) explained to the jury the history of cigarette design innovation, including filtration, tar reduction, varying ingredients, and different ways to burn the tobacco. According to Mr. Kelly, the public health community encouraged the tobacco industry to develop lower tar cigarettes, and the cigarette companies did so. Tobacco is dangerous by nature, said Mr. Kelly, and design could only do so much to mitigate the risk.
Michael Minton (Thompson Coburn) explored wtih the jury the history of cigarette warnings, including examples from the age of Columbus, and humorist Mark Twain’s ironic quote that there was no difficulty in quitting smoking, he’d done it a thousand times. “The point is,” said Mr. Minton, “that these were the types of observations that way back when – in the 1700′s and in the 1800′s” that allowed people to conclude and to warn each other that cigarette smoking was dangerous and addictive.
The trial is expected to last into December. Courtroom View Network is well-established as the premier source of Tobacco Litigation news. Visit CVN’s Engle Verdict Tracker and Engle Litigation Trading Cards for statistical analyses. For monthly updates, subscribe to the CVN’s Free Monthly Newsletter.
CVN is webcasting the West Virginia tobacco trial live.