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The tobacco industry is on a roll. On July 31, a Los Angeles jury handed the industry a win in Reller v. Philip Morris, a single-plaintiff products liability suit filed by a smoker with lung cancer who had alleged, among other things, fraud, failure to warn and concealment. Just three days earlier, the tobacco industry scored a partial win in a Louisiana class action, Scott v. American Tobacco, in federal district court in New Orleans. That suit asked that the industry pay for a plan to monitor the health of smokers. On July 28, a New Orleans jury returned a split verdict, finding fraud but rejecting the plaintiffs’ remedy of a medical-monitoring program. The judge has indicated that there will be a second phase to Scott, which will determine whether the industry will be required to fund a smoking cessation-aid program throughout Louisiana. Add those two wins to Liggett Group Inc. v. Engle, No. 3D00-3400, in which the Florida 3rd District Court of Appeal reversed a $145 billion award on May 21, decertifying a class of 700,000 Florida smokers, and you’ve got a win streak. But attorneys and tobacco industry analysts sharply disagree over whether the recent wins signal a major trend. The news of the Reller victory alone had industry analysts at Smith Barney predicting that Philip Morris’ stock would climb 3 percent to 5 percent. “We believe the victory is very good news for Philip Morris for two reasons,” concluded Smith Barney analyst Bonnie Herzog. “It appears that the company has found an effective strategy to convince a jury in Los Angeles that it is not liable, and this case could be another sign that the litigation landscape is becoming more positive.” Others are less than convinced. Defense counsel in the tobacco cases have always had more wins than losses, said John F. Banzhaf III, a professor at George Washington University Law School in Washington. The scorecard can be misleading, he noted. Also, a loss for the tobacco industry is more serious than a loss for the plaintiffs, because even a small number of losses could bankrupt a defendant, he added. The plaintiff in Reller was represented by Los Angeles’ Michael J. Piuze, who scored two multibillion dollar victories against the tobacco industry on behalf of plaintiffs suing tobacco companies for cigarette-related illnesses in 2000 and 2001. Boeken v. Philip Morris Inc., No. BC 226593, and Bullock v. Philip Morris Inc., No. BC 249 171 (both Los Angeles Co., Calif., Super. Ct.). Frederic Reller, 64, who smoked Marlboros from 1962 until the day he was diagnosed with terminal lung cancer in November 2000, marks the third victory for Philip Morris in the last eight trials on the West Coast, according to the company. It was an important one, said Philip Morris’ associate general counsel William Ohlemeyer, because of the attention generated by the losses in California and the relative immaturity of the litigation there. Ohlemeyer suggested that the future of tobacco litigation is in single-plaintiff lawsuits like Reller. “There has been a concerted effort to aggregate cases and the overwhelming legal precedent is against that,” he said, referring to attempts by plaintiffs to �certify large classes of smokers. MORE SUITS TO COME Plaintiffs’ activists at the Tobacco Products Liability Project at Northeastern University School of Law were quick to disagree with Ohlemeyer. They see litigation as a strategy to improve public health, said senior attorney Edward Sweda. Engle is on appeal, he noted, and there have been successful class actions like the one over “light” cigarettes. Philip Morris’ recent victories are unlikely to deter future lawsuits for long, Banzhaf said, because plaintiffs’ attorneys look beyond recent history to the full spectrum of tobacco litigation, which includes a lot of plaintiffs’ wins. Nor would he bet that tobacco’s future is in the single-plaintiff lawsuit. New theories are developing all the time that may give rise to new class actions, Banzhaf said. “One thing to remind everybody here is that when we first saw the single smoking suit, everybody from plaintiffs’ attorneys to Victor Schwartz [general counsel of the American Tort Reform Association] said it would never make it to a jury,” Banzhaf said.

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