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Last week’s unprecedented certification of a nationwide class action lawsuit against the tobacco industry was immediately heralded as groundbreaking in terms of legal theory and social policy, but tobacco lawyers insist its odds of survival are beyond long. The Thursday ruling by Eastern District of New York Judge Jack B. Weinstein is the first of its kind on two levels: Until last week, a nationwide class of plaintiffs had never been certified to sue the tobacco industry, nor had plaintiffs in a class action sought only punitive damages, foregoing compensatory damages for a later date. The class includes all smokers in the United States who have been diagnosed with numerous smoking-related illnesses, including lung cancer, lip cancer, esophageal cancer and bladder cancer. What’s more, the certified class is “non-opt-out”: Those eligible for it must participate, rather than choose to bring their own individual suits in hopes of winning more money. The liability of the tobacco industry would be limited under the suit in accordance with Rule 23(b) of the Federal Rules of Civil Procedure, though that limit is undetermined. Excluded from the class are smokers who have already won, lost or settled claims against the tobacco industry, as well as those who should have realized they had a tobacco-related disease prior to 1993, or whose diagnoses predate their tobacco use. Also excluded are Florida plaintiffs in a statewide suit, Engle v. R.J. Reynolds Tobacco Co., 94-08273, who won $145 billion in damages two years ago. The tobacco industry has appealed that ruling in Florida state court. Judge Weinstein only issued a short order last week in In Re Simon II Litigation, 00-CV-5332, saying that a more detailed version would be made available as soon as possible. The defendant tobacco companies are Philip Morris, R.J. Reynolds, Lorillard Tobacco, Brown & Williamson and Liggett Group. The ruling came in the wake of repeated but unsuccessful attempts by the judge over two years of litigation to broker a national settlement between the plaintiffs and the tobacco industry. DEBATE INSPIRED Regardless of whether Weinstein’s ruling is upheld by the 2nd U.S. Circuit Court of Appeals, its implications have already inspired debate among attorneys and experts. Steven E. Fineman of Lieff, Cabraser, Heimann, & Bernstein, whose partner, Elizabeth J. Cabraser, has been designated the lead plaintiffs’ lawyer in the case, said Weinstein’s ruling represented the best way to get the most money to the most victims. “Our view is that it’s a rational approach,” Fineman said, noting that individual plaintiffs have, overall, had limited success against the tobacco companies. “I think this evens out the playing field a bit.” John C. Coffee Jr., a professor at Columbia Law School, said the ruling is an attempt to impose order on the chaos of tobacco litigation. “I think this is an historic decision,” said Coffee, who has advised Weinstein’s court at earlier stages of the Simon II litigation. Coffee said that the approach was conservative because it excluded compensatory damages and simply attempted to deal with punishment as it should be dealt with: in one fell swoop. “Punishment should be put to a public purpose, not awarded in a lottery,” he said. “This won’t just give windfalls to lucky winners.” Instead, punitive damages would be divided among the class based on the extent of the members’ diseases and the relative effects of smoking on their health. Unclaimed money would be diverted to a fund for treatment of smokers and education. The alternative for the tobacco industry, Coffee said, is to defend hundreds of individual actions over what could be 20 years. Though few of those claims have been successful in the past, Coffee said a few recent victories by plaintiffs in California have likely made the tobacco industry nervous. But the industry’s response to the ruling makes it clear that they would rather take their chances defending these claims one at a time. “The courts have consistently held that class-action lawsuits are inappropriate in tobacco cases because smokers’ claims for damages involve far too many individual and uniquely personal circumstances,” said Charles A. Blixt, executive vice president and general counsel for R.J. Reynolds, in a statement released Friday. Theodore M. Grossman of Jones, Day, Reavis & Pogue in Cleveland, which represents R.J. Reynolds, said if Weinstein’s ruling were upheld, it would constitute a momentous change in U.S. law. “It’s so outside the bounds of precedent that I know of that it’s impossible to be able to say with any degree of specificity what effect it would have on other cases or the law generally,” Grossman said. He said the class certified by Judge Weinstein is “incredibly diverse” and does not meet the requirements laid out by the U.S. Supreme Court in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), which held that plaintiffs in a limited fund class action must show that the fund is limited by more than the agreement of the parties, and that conflicts among class members have been addressed. Grossman questioned how the suit could be viable yet exclude certain possible plaintiffs, such as those who inhale secondhand smoke, and why the claims of plaintiffs around the nation should be tried under New York law, as Judge Weinstein designated. When told about the suit, Oscar Chase, an expert on civil procedure at New York University School of Law, said the ruling would likely run into problems at the appellate level. “It’s hard to see how it would satisfy what the Ortiz opinion said was essential,” Chase said. “I am not a sympathizer with the tobacco companies, but we don’t think about this on a clean slate. We think about it in the context of the Ortiz ruling.” “It seems that Judge Weinstein has a difficult road to hoe, but it’s not impossible,” he said. Weinstein set a trial for Jan. 20, 2003, though the date could be delayed by an appeal. The first stage of the trial would determine the estimated value of compensatory damages — which Mr. Coffee described as a “virtual determination” — to aid in calculating punitive damages, if a jury later awards them.

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