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Tobacco litigation verdict is 1 step in a long case

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More than a decade in the making and it's not over yet for the state's tobacco litigation cases. 

A Kanawha County jury recently returned a verdict finding in favor of the defendant tobacco companies in all but one of six claims. 

Divided into two parts, the case was taken up by the mass litigation panel. It was originally filed against Phillip Morris Tobacco, R.J. Reynolds Tobacco and Lorillard and alleges personal injury from smoking.

The jury found plaintiffs proved cigarettes manufactured between 1964-1969 were defective because of a failure to instruct but ruled that plaintiffs did not prove that all cigarettes were defectively designed, all cigarettes before 1969 were defective because of a failure to warn, defendants negligently designed or manufactured cigarettes, and before 1969 defendants intentionally concealed the dangers of smoking. 

The jury also ruled that plaintiffs did not prove that after December 1973, defendants Phillip Morris, R.J. Reynolds or Brown & Williamson sold Cambridge, Carlton or NOW cigarettes that failed to conform to the terms of an affirmation or did not fit a description of those cigarettes at the time the cigarettes were sold when used in a normal or reasonable manner, the verdict form states. 

The claims come under West Virginia law in the Morning Star case, which provides the definition of a defective product. 

"There are many ways to make a defective product. There are design defects and then there is another group called failure to warn and failure to give instructions. This case involved design defects, failure to warn and failure to give instructions," explained senior status and former Ohio County Circuit Judge Arthur Recht. 

Thus, the jury ruled there is no design flaw or failure to warn, but the defect centered on the ventilated cigarettes. The jury ruled the manufacturer should have given instructions on how to use ventilated cigarettes. 

The idea was that ventilated cigarettes were designed to reduce tar and nicotine; however, if people blocked the ventilation hole and took deeper breaths, plaintiffs argued, ventilation would not have the same beneficial effects. 

This is an argument that Steptoe & Johnson attorney Karen Kahle says could be hard to prove. 

"In order to claim the fault is the cigarette manufacturer … they're going to have to prove by medical evidence that had they instructed them not to inhale and block the hole, they would not have done it. They would have followed that instruction. … Then, they will have to prove that had they received that instruction and followed that instruction, would they have contracted cancer?"

The jury also decided that there would not be an award of punitive damages. 

"This is a huge thing," Kahle said. "You have to wonder how much time and effort attorneys who spoke for plaintiffs are going to put into using this very narrow finding and spent time, effort and money to proceed with those claims when you know it's difficult just to prove the link." 

This case has been a long time in the making. Both this case and the medical monitoring case were filed around the same time. 

The medical monitoring was tried in 2001 ending in a defense verdict, Recht explained. The case then went before the West Virginia Supreme Court and justices affirmed the verdict. 

The first tobacco case, which was filed by West Virginia smokers against tobacco companies and sought medical monitoring, was certified as a class action.

"This particular case, what I did is since we can't certify it as a class action, the most efficient way was to have two phases," Recht said of the current case. 

"Not all mass litigation cases are class actions," Recht further explained. "What makes them non-class actions are the individual issues." 

Around 2002, when the 1st case was over, judges started concentrating on the current case. 

"It's taken a while to get it all ready. We had a tough time finding a jury," Recht said. 

And it was a tough time, indeed. 

One of the first times around, parties sought a jury in Ohio County. However, the pool spanned three counties. In a previous interview with The State Journal, Ohio County Circuit Clerk Brenda Miller said the trial marked the first time in the state's history that a jury was selected from three counties.

"It was quite an undertaking," she said in the previous interview, noting that the original pool consisted of 8,000 potential jurors. "All we needed was six regular jurors and two alternatives." 

Officials tried twice before to get a jury in Kanawha County.  

"We had hundreds and hundreds of jurors," Recht said. "Everyone dealt one way or another in regard to smoking. Some thought it was the smoker's fault. Some thought it was the tobacco company's fault and they could not render a fair, impartial verdict." 

In 2011, parties in the litigation eyed Wheeling again and a jury was selected in three days. 

However, the case ended in a mistrial. Attorneys previously told The State Journal that the mistrial resulted from the allowance of a new claim by plaintiffs that dealt with failure to instruct. 

After that, the case moved back to Kanawha County for the last time in this phase. 

In the next phase of the case, plaintiffs within the category of the verdict will proceed to trial on individual claims. These individual damages alleged include lung cancer, COPD and cardiovascular problems. 

The next step, Recht explained, will be to see how many plaintiffs are in cases involving this type of cigarettes. 

Recht said there is no trial plan set in stone because the panel has to see how many plaintiffs remain. 

"There is a lot to be accomplished procedurally. The jury has spoken and there are no more issues before the jury in this phase. But there are certain procedural rules that we have to address," Recht said.