Simon II Q&A

TPLP's Q&A for In Re: Simon II Litigation (No. 00-cv-5332 E.D.N.Y) Updated November 26, 2002
Q	What is the "Simon II" mandatory national tobacco class action?
A	This class action is about taking all of the legal claims of individuals with specific cigarette smoking-caused injuries diagnosed since April 9, 1993 and before some time in the future when official notice to the class is sent, and the estates of those who died as a result of such injuries, and consolidating all of their claims for punitive damages against the major U.S. tobacco companies into a single case in a Brooklyn, NY federal court. A federal judge, Jack B. Weinstein, certified the national class on September 20, 2002.
Q	What is the difference between punitive damages and compensatory damages?
A	Compensatory damages are damages awarded to a plaintiff for things like medical expenses, lost wages, and pain and suffering. Punitive damages are awarded where the conduct of the defendant is considered specially reprehensible and is intended to punish the bad behavior and deter future bad behavior.
Q	What does it mean for this to be a "mandatory" class?
A	A "mandatory" or "non-opt-out" class means that everybody who meets the class definition is automatically a class member regardless of whether they would rather seek punitive damages in their own lawsuit. If the case fails for the plaintiffs, all of the class members' punitive damages claims also fail.
Q	But what about all the people in Florida who are already part of the Engle class action that led to a jury's $145 billion punitive damages award a couple of years ago?
A	The class members in the Engle case are specifically excluded from the class in Simon II along with anyone whose claims have already been decided by a court.
Q	Okay. How can someone join the class?
A	Because it is a mandatory class, joining is not an issue. Everyone who fits the class definition is already a member. If and when there is a final judgment in the case, the court will oversee a process for notice and instructions to be provided to class members.
Q	How would a trial work?
A	We don’t know for sure, but the trial judge, Jack B. Weinstein, proposed the following procedure: He would empanel a jury in Brooklyn, NY. That jury would first estimate the total amount of potential claims for class members' compensatory damages. That figure would not be awarded but would help to guide jurors as they determine whether punitive damages should be awarded and, if so, how much. The judge discussed handling each smoking-caused disease separately in terms of determining levels of punitive damages. Some representative class members' claims for compensatory damages would likely occur during the trial. The jury could award punitive damages only after determining whether punitive damages are called for, and would only make that determination if it finds that compensatory damages claims are valid. If punitive damages were awarded, individual class members would present proof of their qualifying smoking-caused disease and receive a share of the punitive damages from the appropriate disease fund. The trial could easily last more than a year. Of course, if the jury found that no punitive damages or only small punitive damages are appropriate, the entire class would lose out.
Q	I've never head of any case like this! Can the judge really make every sick smoker in the country join this class?
A	Maybe. Judge Weinstein's order is being appealed by the tobacco company defendants to the U.S. Court of Appeals for the Second Circuit. If that court takes the case, its opinion will likely answer the question of whether the judge can do this.
Q	What about a settlement like the one between tobacco companies and the states?
A	Such an outcome is certainly plausible. The certainly of trial is often a powerful incentive for parties to enter settlement talks. It is possible that the parties in a settlement would try to expand the class to include all smokers whose injuries are attributable to misbehavior by the tobacco companies before the date of class notice, even if they are diagnosed after that date.
Q	The tobacco companies have been killing their customer for decades. What kind of punitive damages award would be appropriate to punish such an enterprise?
A	While nobody can predict what a jury will award or how settlement talks turn out, a result in the hundreds of billions of dollars range would not be surprising to most industry observers.
Q	If this case only deals with the punitive damages claims of smokers, can't compensatory damages claims be handled separately?
A	In theory, yes. However, attorneys would probably be disinclined to take on the expense and hassle of tobacco litigation if only compensatory damages were available. While the dynamics in the legal profession may change, it is likely that the resolution of punitive damages would, for all practical purposes, end litigation for compensatory damages as well.
Q	Who represents the class members?
A	The class attorneys approved by the court are: Elizabeth J. Cabraser, Perry Weitz, M. Frederick Pritzker, Norwood Wilner, Stanley M. Chesley, Dianne M. Nast and their respective law firms. Elizabeth J. Cabraser is appointed as the lead counsel for the plaintiffs.