California Supreme Court Likely to Determine Fate of State Tobacco Litigation Next Year

The Los Angeles Times reports that the California Supreme Court will likely determine whether the tobacco industry will face a "tsunami of lawsuits" and the "risk of billions of dollars in liability" in the state. The Times reports that three consecutive "mega-verdicts" against cigarette makers have moved California to the forefront of the "legal war" against the tobacco industry, and the court will determine the "extent of Big Tobacco's vulnerability" in future cases in rulings expected next year. According to the Times, the court must determine whether plaintiffs can "make almost unlimited use of incriminating" tobacco industry documents uncovered before 1998, when the Legislature lifted a 1988 ban on tobacco litigation passed as part of larger tort reform. The 1988 state law barred lawsuits against companies, such as cigarette makers, that manufactured "inherently dangerous products whose risks were well-known to the ordinary consumer." Tobacco companies contend that plaintiffs "can base their claims only on industry conduct after 1998." However, plaintiffs argue that state lawmakers "meant the 1998 law to be retroactive," and as a result, "evidence from all years is fair game." Plaintiffs have filed about 55 tobacco lawsuits in California, and a win in the state Supreme Court could lead to a "flood of new filings." Martin Feldman, a tobacco analyst with Solomon Smith Barney, predicted that the court will not "bar evidence of industry conduct before 1998" in tobacco litigation. He said, however, that the court may ban the use of evidence uncovered between 1988 and 1998, which "would be helpful" to the industry. "The greater the extent to which the evidence is restricted, the more easily the tobacco industry will be able to defend itself," he said, adding that cigarette makers would still have to "sway California juries." The Times reports that tobacco companies, based on the results of lawsuit thus far, "have their work cut out for them" (Levin, Los Angeles Times, 11/12).