FOR IMMEDIATE RELEASE                                          Contact:  Richard A. Daynard

November 14, 2001                                                                             Mark Gottlieb or

                                                                                                                 Edward L. Sweda

                                                                                                                  617-373-2026

 

 

 

WEST VIRGINIA JURY ISSUES DEFENSE VERDICT IN FIRST CIGARETTE MEDICAL MONITORING CLASS ACTION

 

July found class members at heightened risk for disease, but determined that medical screenings for the entire class was an unreasonable remedy.

More than 1,200 cases involving sick smokers are pending in West Virginia

 

Today, a West Virginia jury found the tobacco industry not liable for funding a medical monitoring program for a class of healthy cigarette smokers who have smoked at least an average of a pack a day for five years.  The trial, which began on September 10th, ended with a verdict after the jury of six deliberated for a day and a half. As required under West Virginia law, the verdict was unanimous.

 

BACKGROUND

 

The case, officially known as In Re: Tobacco Litigation (Medical Monitoring Cases) but more commonly called Blankenship after the name of the first named representative class member, was the first medical monitoring case against the tobacco industry to go to trial.  Another such trial is scheduled to commence in New Orleans later this year. 

 

The idea of a medical monitoring case is that the defendants’ course of conduct has put class members at a heightened risk of injury, but the injury has yet to occur. The future injuries would include lung or other smoking-caused cancers, emphysema, and heart disease.  The proposed remedy, medical monitoring, involves setting up a system at the defendants’ expense to pay for medical screenings and testing to minimize the risk to the class of future harm. Such a monitoring program would be supervised by the Court.

 

The class included all West Virginia residents who:

·  ·On or after Jan. 31, 1995, purchased and smoked cigarettes manufactured, marketed and/or sold by defendants;

·  ·As of Dec. 4, 2000, had a minimum of a five “pack year” smoking history (A “pack year” quantifies a person’s smoking history. A pack year is equivalent to one pack of cigarettes for one year, one-half pack for two years, etc.);

·  ·Have not been diagnosed with any of the following smoking-related diseases: cancer of the lip, oral cavity or pharynx, esophagus, stomach, pancreas, larynx, trachea, bronchus or lung, cervix uteri, bladder, kidney or other urinary organs; coronary heart or cerebrovascular diseases; bronchitis, emphysema or chronic airway obstruction; and

·  ·Have not received health care paid or reimbursed, directly or indirectly, by the State of West Virginia.

 

The defendants were: Philip Morris, Inc., R.J. Reynolds Tobacco Co., Brown and Williamson Tobacco Corp., Lorrilard Tobacco Co., and Liggett & Myers Tobacco Co.  The trial was held in the Circuit Court for Ohio County, W.Va. (Wheeling) of Judge Arthur M. Recht.

 

This was the second trial for the Blankenship case.  The first trial, held in January of this year, was declared a mistrial when a witness indirectly referred to addiction during testimony.  Judge Recht had ruled that the topic of addiction was off-limits to the jury and shut down the trial after the witness’ reference was made on the stand.  The judge later rejected tobacco defendants’ efforts to have the class decertified and the case dismissed and, instead, scheduled a second attempt at the trial for September.  This time, however, the topic of addiction was not considered so prejudicial or irrelevant that its mention would warrant another mistrial.

 

The case was originally filed in 1997.  It was conditionally certified as a class on December 4, 2000.The plaintiffs’ case relied on theories of negligence, strict liability, and negligent performance of a voluntary undertaking. The medical monitoring sought would include the relatively new lung screening procedure known as spiral CT scans for the detection of lung cancer.  It would also include standard pulmonary function tests to determine the presence of respiratory disease.

 

The defendants argued that class members knew the risks to their health but continue to smoke nevertheless.  As such, the tobacco companies argue, the class members bear full responsibility for their own health.  In the alternative, the defendants argued, the new lung screening technology sought has not been proven to be effective or even safe.

 

Testimony during the two month trial included the following:

 

  • Prof. Thomas Donaldson of Wharton Business School testified for the plaintiffs and asserted that four cigarette makers violated the basic principles of business ethics for many years.

 

  • Dr. David Burns, who edited the majority of U.S. Surgeon General’s reports, defended the medical monitoring plan.  The spiral CTs are "the most exciting technological advance in lung cancer -- and the ability to do something about it -- as long as I've been practicing medicine.”

 

  • Dr. Julius Richmond, a former U.S. Surgeon General during the administration of President Carter, testified that early detection of disease is possible with both spirometry and spiral CT scans.

 

  • Dr. William Farone, director of applied research for Philip Morris from 1977 to 1984, testified that tobacco companies have cut tar levels and otherwise advanced the science of cigarettes, but smokers may not be any better off because biological testing wasn't done on the finished products.  It was a comment made by Dr. Farone in January that resulted in the judge’s decision to declare it a mistrial.  No such problem arose in this trial

 

  • Dr. Harmon McAllister, former scientific director for the industry funded Council for Tobacco Research, testified for the industry that the tobacco companies. never influenced the content of their research.

 

  • Dr. Donald Louria, former chairman of the Dept. of Preventative Medicine at the N.J. School of Medicine and Dentistry said in his testimony for the industry  that, without proof that it will save lives, there is no reason to create the mass medical screening program that healthy West Virginians are demanding in their case.

 

  • Donald DeBethizy, a toxicologist for RJ Reynolds who oversaw testing there for 15 years, testified that Reynolds has done in-house biological testing on its own and its competitors' brands since the mid-1970s as part of an effort to produce a “safer” product.

 

  • Dr. Philip Goodman, chief of thoracic imaging at Duke University testified for the industry that the test the plaintiffs seek is unproven in both detecting early stage lung cancer and in saving lives.

 

COMMENTS:

 

“Any honorable company would have offered medical monitoring without a lawsuit,” said Richard Daynard, Professor of Law at Northeastern University School of Law in Boston and Chair of the Tobacco Products Liability Project.

 

Mark Gottlieb, an attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston, noted that, “while this jury rejected the relatively novel remedy of medical monitoring for healthy smokers, it does not mean that sick smokers’ claims would fail in West Virginia.  The proposed remedy was rejected in this case really has no bearing on traditional smokers’ cases.”

 

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project noted that, “more individual tobacco cases are pending in West Virginia than in any other state.”

 

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