(Updates with defense lawyer’s comments in 14th paragraph.)
Oct. 26 (Bloomberg) -- A West Virginia jury began hearing a case intended to resolve more than 600 smoking-related personal- injury cases against the biggest U.S. cigarette makers, including Altria Group Inc.’s Philip Morris unit and R.J. Reynolds Tobacco Co.
The jurors in state court in Wheeling heard the start of opening statements in a two-phase trial. In the first phase, which began today, the jury is being asked to determine general liability questions and the availability of punitive damages.
“This case is about the corporations’ responsibility,” Kenneth McClain, a lawyer for the smokers, said in court. “They were actively keeping from the public the information that they had.”
The case, which was originally consolidated for trial purposes in 2000, was moved to Wheeling from Charleston, West Virginia, after Circuit Judge Arthur Recht was unable to find enough jurors qualified to hear the case there.
The jurors will be asked to determine questions related to the companies’ liability, including whether they marketed a defective product. If jurors find for the plaintiffs, they will also determine whether any of the defendants engaged in conduct that can support an award of punitive damages.
The companies have claimed the two-phase plan is unworkable and violates their right to a fair trial. West Virginia’s Supreme Court, ruling on a question certified for appeal by Recht, found in 2005 that the bifurcated trial plan doesn’t violate the Due Process Clause of the U.S. Constitution’s 14th Amendment, clearing the way for the claims to go forward.
Recht told jurors they will be asked to determine whether cigarettes are defective products, whether the companies failed to warn about the dangers of smoking, broke express warranties and fraudently concealed information from smokers.
Jurors will also be asked to decide whether the cigarette makers “acted in a willful, wanton and reckless manner,” permitting the award of punitive damages.
McClain, who spoke for more than an hour, told jurors of the time, decades ago, when people were free to smoke in offices, airplanes, courtrooms and hospitals. Cigarettes were widely advertised by Hollywood stars, athletes and doctors, he said.
“Even Santa Claus was enlisted to sell cigarettes,” McClain told the jurors, showing them a Christmas-themed cigarette advertisement.
’On Your Own’
McClain showed jurors a document called the “Frank Statement” published by the tobacco industry in 1954 in 300 newspapers throughout the U.S., including the local Wheeling Intelligencer, in response to studies showing a link between smoking and cancer.
“They didn’t say, ‘Cigarettes are dangerous and addictive. If you smoke, you’re on your own,’” McClain said. “They said the smokers’ health is the most important thing we do. They said the products we make are not injurious.”
McClain told jurors the jurors would see evidence showing the companies knew smoking is dangerous and that nicotine is addictive.
Jeffrey Furr, a lawyer for R.J. Reynolds and Brown & Williamson Tobacco Corp., said that smokers knew from their own experience, friends and family, the media and other sources that smoking is hazardous to health. Reynolds bought Brown & Williamson’s U.S. operations in 2004.
“Smokers’ own common sense tells them there’s something about what they’re doing that could be bad for their health,” Furr told jurors. In addition, the companies tested their products extensively and tried to develop a safe cigarette, he said.
“For about 60 years, the companies have worked extremely hard to make cigarettes safer,” Furr said. “They haven’t been able to do it.”
Furr told jurors that they will have to view the smokers’ claims in the context of what people knew about the risks of smoking, as far back as the crew of Christopher Columbus’s explorations, who took up tobacco use in the New World, then found it hard to quit. Furr, quoting John Quincy Adams and showing jurors a clip of the Three Stooges, said it has been common knowledge throughout U.S. history that smoking is risky and that quitting is hard.
Courts in Florida are hearing individual trials in as many as 10,000 tobacco personal-injury cases after that state’s Supreme Court in 2006 said that trial courts must apply many of the factual findings of a Miami jury earlier in the case.
Yesterday, a judge in St. Louis declared a mistrial in a suit claiming Philip Morris, the biggest U.S. cigarette maker, deceived Missouri smokers in marketing its Marlboro Lights cigarettes. Jurors said they were deadlocked.
Altria is based in Richmond, Virginia. R.J. Reynolds, a unit of Winston Salem, North Carolina-based Reynolds American Inc., is the No. 2 U.S. cigarette maker.
In addition to Philip Morris, R.J. Reynolds and Brown & Williamson, the suits target Greensboro, North Carolina-based Lorillard Inc.
The case is In Re Tobacco Litigation (Individual Personal Injury Cases), 00-C-5000, West Virginia Circuit Court, Ohio County (Wheeling).
--Editor: Stephen Farr
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