Smokers' Suit Goes to Trial Again
WHEELING, W.Va. (AP) - A landmark lawsuit aimed at forcing the tobacco industry to provide free annual medical tests for healthy smokers is a potential mine field for the dozens of witnesses expected to testify.
Jury selection begins Wednesday in the class-action lawsuit, which has been carefully structured with restrictions on what can and cannot be said to preserve its status as a class action.
The lawsuit, against four of the nation's biggest tobacco companies, covers some 250,000 West Virginians who have smoked the equivalent of a pack a day for five years but who are not yet sick.
It is the first lawsuit of its kind to go to trial in the United States, essentially a product liability case with medical monitoring as the proposed remedy for wronged consumers.
Lawyers and witnesses must focus only on issues that are common to any smoker, avoiding those that are unique to any particular smoker. The case must focus on the conduct of the tobacco companies, the judge said.
The first attempt to try the case ended with a mistrial in January after a witness made an apparently inadvertent reference to addiction. That was one of the words banned from testimony because the tobacco companies argued it raised issues of individual behavior and reasons for smoking, compromising the cohesion of the class.
``We are in somewhat of a thicket created by the desire to proceed as a class,'' said the judge in the case, Ohio County Circuit Judge Arthur Recht, a former state Supreme Court justice experienced in mass litigation.
In this retrial, witnesses can mention addiction but not the reasons people start to smoke or their ability to stop.
Lawyers for R.J. Reynolds, Philip Morris, Brown & Williamson and Lorillard can suggest that people should quit smoking to stay healthy, but no one can discuss whether smokers can quit.
Witnesses can discuss tar, but they can't talk about the ways smokers compensate to inhale more of it, such as covering tiny air holes near filters with their fingers.
The taboo issues have become known as the potentially explosive ``C words:'' cessation, compensation and choice. Any one of them could derail the trial.
Opening statements are set for Sept. 10, with six jurors and four alternates expected to sit through testimony into December.
A class-action medical monitoring case also is in the courts in Louisiana, but it differs from West Virginia's in several ways. For one thing, the Louisiana case also asks the tobacco companies to help smokers quit.
July selection for the Louisiana trial took two months this summer. Testimony was tentatively set to begin this Wednesday, but it might be delayed by a pending appeal on the jury selection method. A gag order prevents lawyers from discussing the case.
Medical monitoring in the West Virginia case means annual lung-function tests for people 45 and older, and more sophisticated annual testing for those 50 and older.
The tobacco companies contend the tests the smokers want are experimental and unproven at diagnosing disease early enough to make a difference in the outcome.
The smokers' case is built on thousands of internal industry documents and public records, which the plaintiffs will use to show that cigarette makers designed a defective product and pursued the most effective ways to deliver nicotine without regard for health risks.
They aim to prove the companies failed to do what a ``reasonably prudent'' manufacturer should have done, and that their conduct was ``wanton and willful.''
Scheduled witnesses include Thomas J. Donaldson of the University of Pennsylvania's Wharton School, a professor of business ethics, who will testify about how the tobacco companies reacted to scientific and anecdotal evidence that cigarettes caused disease.
The companies will counter with documents illustrating that the dangers of tobacco have been common knowledge for centuries.
Philip Morris attorney Sam Klein has argued that it is unfair to fault the tobacco companies for their marketing decisions, which complied with Federal Trade Commission regulations, and said curtailing advertising could limit the companies' right to free speech.
Klein also argued at one pretrial hearing that the companies cannot be held legally accountable for ethically questionable behavior.
``Ethics is not law,'' Klein said. ``Sometimes they coalesce, but sometimes - frequently - they don't. This creates the potential for incredible mischief and confusion for the jury.''