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A federal judge yesterday expressed skepticism over a proposed class action lawsuit that would seek as much as $200 billion in damages against the tobacco industry for its allegedly deceptive marketing of light cigarettes. In a day-long hearing, Eastern District Judge Jack B. Weinstein wondered how the plaintiffs could define a viable class-and accurately assess damages-when the tens of millions of people who have smoked light cigarettes might have chosen to do so for any number of reasons. While the plaintiffs in part rely on a study that shows 90 percent of light-cigarette smokers were attracted by perceived health benefits that experts now claim do not exist, Judge Weinstein said consumers could have relied on those perceived benefits to varying degrees, or even known that those health benefits were illusory. “How many people deep down knew they were getting something dangerous, but were willing to pay for the illusion it wasn’t?” Judge Weinstein said. He added: “You can’t get away from the contention of the defendants that every smoker is somewhat different.” Michael D. Hausfeld of Cohen, Milstein, Hausfeld & Toll in Washington, D.C., a firm for the plaintiffs, said the tobacco industry’s marketing had the goal of shifting its buyers to light cigarettes, beginning in 1971, because of growing health concerns about smoking. If they had not, he said, smokers would have “quit in droves”-a comment that was greeted with chuckles from the audience. “The tobacco industry foisted a huge deception on the consuming public,” Mr. Hausfeld said. A Brooklyn jury, he said, would have no trouble understanding what it means to be “cheated.” Mr. Hausfeld said light-cigarette smokers had essentially overpaid-by as much as 50 percent to 80 percent per pack of cigarettes-for a product that promised something it could not deliver. He said the plaintiffs were eligible for treble damages, which could amount to $600 billion. Theodore M. Grossman of Jones Day in Cleveland, which represents defendant R.J. Reynolds Tobacco Company, called the 90 percent figure a “nonsense statistic” and said the plaintiffs had “no clue what the numbers are” in terms of how many people relied on the word “light” when choosing their brand of cigarettes. Mr. Grossman said the plaintiffs arrived at the 90 percent figure by asking smokers what they would do if presented with the opportunity to buy one of two cigarettes, both with the same taste but one with fewer health risks. “[It's] a question that only a suicidal person could answer in the negative,” Mr. Grossman said. He said that an expert for the plaintiffs had also found that 90 percent of light-cigarette smokers liked the taste of their cigarettes, and would continue to smoke them if they were told that they had the same health risks as other cigarettes. Murray R. Garnick of Arnold & Porter in Washington, D.C., which represents defendant Philip Morris USA, Inc., said that for the plaintiffs to succeed on a civil claim under the Racketeer Influenced and Corrupt Organizations Act, they would have to establish a reasonable reliance on an alleged misrepresentation. “The bottom line is the plaintiffs have to figure out what percentage of class members believed light cigarettes were safer,” Mr. Garnick said. Mr. Grossman said, “We have a class of virtually no one.” Judge Weinstein pointed out that tobacco companies sold light and regular cigarettes at the same price, further complicating how the plaintiffs could identify damages to the class. “You just can’t allow a jury to grab a number out of thin air,” the judge said. “There has to be some basis in reality.” The defendants asked the court to grant their motion for summary judgment. Judge Weinstein reserved decision. The case, McLaughlin v. Philip Morris USA, Inc., 04-CV-1945, was filed in 2004 and rivals, in terms of lawyers and paperwork, some of the largest cases Judge Weinstein, 84, has handled in his career, including mass torts involving firearms, asbestos, and Agent Orange. About 40 attorneys took seats in the well and jury box yesterday, and the judge’s bench was piled high with boxes and bound documents (the judge sat at a table closer to the parties). Another voluminous document-a 1,742-page opinion by Judge Gladys Kessler of U.S. District Court for the District of Columbia-may also play a role in the case. Last month, Judge Kessler, ruling in a racketeering suit brought by the U.S. Justice Department, said the tobacco industry had defrauded consumers through false marketing and promotion of light cigarettes as less harmful than regular cigarettes. The day after the ruling was released, Judge Weinstein asked both parties in his case to brief the issue of collateral estoppel. The tobacco companies have claimed that Judge Kessler’s ruling should not prevent them from relitigating issues that she decided in her case. Tom Perrotta can be reached at [email protected]

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