New York Judge Orders Smokers Combined in One Nationwide Class Action
In a ruling that could establish the "groundwork for a tobacco case that would dwarf all others," Brooklyn U.S. District Court Judge Jack Weinstein on Thursday ordered that "millions of injured smokers be lumped into a nationwide class" that would share a single pool of punitive damage awards, the Los Angeles Times reports. Weinstein's order creates a class of all U.S. residents who have smoked since 1993 and have been diagnosed with at least one of 16 specific diseases, including emphysema, heart disease and cancer of the lung, throat and bladder. The class would split a "single pot of punitive damages" from a potentially "giant" billion dollar fund paid for by the tobacco companies named in the suit -- Philip Morris, R.J. Reynolds, Lorillard Tobacco, Liggett Group, UST and Brown & Williamson and its parent British American Tobacco. There are currently no estimates on the size of the class, but "it could be enormous," according to the Times. There are no provisions for people who choose to forego the class-action case and file separate lawsuits. Excluded from the class are nonsmokers with any of the 16 ailments and those whose suits against tobacco companies have already been decided, including plaintiffs involved in a Florida class-action suit against tobacco companies. The ruling is designed to change the "lottery system" of tobacco suits "in which a few plaintiffs may reap a windfall in damages while a greater number suffering from identical smoking-related ailments win nothing at all," the Times reports. Elizabeth Cabraser, lead plaintiff's council, said the ruling would make it easier for people who want to sue the tobacco industry but cannot find a lawyer. Tobacco company lawyers said they will appeal the ruling.
Weinstein's order will "likely be rejected" because federal courts usually reject class-action status for tobacco cases on the grounds that the individual differences among smokers -- such as when they started and how much they smoke -- "overwhelm common issues," the Times reports. The order "is inconsistent with where the law is on the issue of aggregating claims and treating them as class actions, especially in tobacco cases," William Ohlemeyer, vice president and associate general counsel with Philip Morris, said. Stephen Gillers, a New York University law professor, said there is "almost no chance that the [U.S. 2nd Circuit Court of Appeals] will allow this to go forward in this way."
If Weinstein's ruling is not overturned, a three-part trial will begin Jan. 20, 2003. In the first phase, the jury would decide if the tobacco companies are liable and approximate the compensatory damages, which would be used as a point of reference to establish punitive damages. The jury also would settle the individual claims of the 14 class representatives. In the second phase, the jury would decide if punitive damages are warranted and if not, the case would end. If the jury decided to award punitive damages, the third phase would determine the amount of such damages and the amount to be paid for each disease. The court then would allocate punitive damages to plaintiffs' submitting "appropriate proof." The order does not indicate if "proof means first winning compensatory damages at a separate trial, or whether medical records alone would suffice." All punitive damages not awarded to class members would be used for medical research, according to the order (Levin, Los Angeles Times, 9/21).This is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.