Tobacco suit in W.Va. seeks millions for tests
A jury in Wheeling, W. Va., is scheduled to hear opening arguments today in a class-action lawsuit that asks tobacco companies to pay several hundred million dollars to provide medical monitoring for the state's 250,000 smokers.
The lawsuit could be the first of its kind to go to trial in the United States, although a lawyer for the tobacco industry said a similar case in Louisiana might also go to trial next week.
The plaintiffs are arguing that tobacco companies have enhanced the nicotine content of cigarettes, making them more addictive than consumers could have anticipated. The remedy, plaintiffs say, is for the companies to give consumers access to medical tests that provide early warnings about lung cancer and chronic obstructive pulmonary disease.
The tobacco industry counters that smokers have known for years what they're buying.
"These people are healthy, they're current smokers, they know the health risk of smoking," said Jeff Furr, trial counsel for R. J. Reynolds. "Why are they asking someone else to pay for this? It's something they are clearly inflicting upon themselves."
The medical monitoring cause of action was established by West Virginia courts to help individuals who are exposed to hazardous materials through the wrongful conduct of another. For example, a chemical plant worker could be exposed on the job to the release of a toxic gas. West Virginia courts have found that, in such cases, companies can be obliged to provide symptom-free employees with medical tests that might catch a related health problem in its early stages.
Plaintiff attorneys in the West Virginia case must show that the conduct of the tobacco companies was so egregious that it outweighs the plaintiffs' decisions to buy cigarettes.
"The defense will argue that the smokers engaged in voluntary activities with the full knowledge of the defectiveness of the product," said Ted Goldberg, attorney for the plaintiffs. "But there are things that the cigarette companies did that make them legally responsible for their products. They can't defend in West Virginia by saying someone made a voluntary choice."
Testimony is expected to stretch into December. Arthur Recht, chief judge of Ohio County Circuit Court in Wheeling, started to hear the case in January but declared a mistrial due to surprise testimony about addictions.
A similar suit was filed in Pennsylvania, but that case was thrown out in 1997 by a Philadelphia judge. In Pennsylvania, plaintiffs needed to demonstrate that the tobacco companies caused the exposure to tobacco. But in West Virginia, plaintiffs need only demonstrate the tobacco companies increased the smokers' risk of contracting a serious disease.