$800 Billion Up in Smoke: Court Throws Out Massive Class Action on Light Cigarettes

free-no-smoking2.jpgThe tobacco industry won a major appeal today when the Second Circuit threw out an $800 billion class-action lawsuit based on allegedly misleading light cigarettes ads. While light or low-tar cigarettes have proven the most promising area of litigation for plaintiffs, there is a strong trend against massive class actions.

The class action sought to represent millions of smokers of light cigarettes across country. Notably, the problem was not the underlying claim but the lack of commonality in the class since it was impossible to know if individuals like the taste or the ads. In 2005, the Illinois Supreme Court threw out a $10 billion case. For that opinion, click here.

The unanimous panel ruling reversed a decision of trial judge Jack B. Weinstein — considered one of the most influential jurists in creating mass tort law. Weinstein helped establish the field with mass tort cases addressing Agent Orange, asbestos, tobacco, Zyprexa and handguns. A study recently by the New York Sun indicated that plaintiffs strove to be assigned to Weinstein due to a pro-Plaintiff reputation.

The ruling comes as industry waits for a ruling from the Supreme Court on whether claims involving light cigarettes are preempted by the fact that the Federal Trade Commission allowed the marketing of the product as light. The Maine case is Philip Morris v. Good, et al. (07-562). Click here and here.

There have been a series of defeats against Plaintiffs in massive tobacco cases, click here. I have always been skeptical of the ability to maintain these cases and critical of the federal lawsuit, click here and here.

The New York lawsuit had more promise because they were based on fraud rather than the classic hazardous claims (which run into problems with assumption of the risk and proximate causation issues).

For the full story, click here and here.

14 thoughts on “$800 Billion Up in Smoke: Court Throws Out Massive Class Action on Light Cigarettes”

  1. Hi Mespo and dear Patty C,

    This will be my last post for a few days. I am going to take some rest and am going to miss out on all the fun! But in your two sets of capable hands, I am sure the salon will do well indeed!

    Thanks for the well wishes. I am fine, just tired from after effects of radiation treatment. Nothing to be too worried about, mostly a fatigue that comes and goes. Last year I participated in the Relay for Life and went 20 miles. This year I can barely walk a mile! It is to laugh! Anyway, see you all next week! 🙂

    I will have a lot of reading to catch up on!!

  2. You’ve been keeping up better than I, DW! I’ve felt fatigued lately, also-lots of ‘nonsense’ going on.

    Without getting too personal on inet, and if you don’t mind my asking, are your symptoms familiar and related to a chronic condition, it’s treatment, and/or recent over activity? If so, you probably know the drill. Take care of yourself for a couple of days – rest, eat well, gentle exercise-all the good stuff. And see how you feel.

    The change of season is known to affect some people and lord knows there’s plenty of stress to go around for everyone, as well.

    Otherwise, you know who to call for reassurance.

    Let me know how I can support you.

  3. Deeply:

    Keep reading until we get you back up and typing. We’re thinking and praying. You do the healing up!

  4. This blog has really come into its own. Wonderful commentary and contributions… respectful admiration to all the participants on this thread.

    I am not posting much lately, my health is doing one of its periodic things, and I am too exhausted, but wish you all well.


  5. JT:

    oops sorry. I meant to say “Courts have blazed the trail for LEGISLATION to follow.” Too many “ations” I guess.

  6. JT:

    Agreed and your concern about risk assumption can be neatly handled in the matrix by weighting length of time in the activity and discounting the claim using a comparative negligence model. (By the way, I would increase the score for fraudulent inducement of minors into this deadly habit). My concern is less for legislation by litigation than for economic intimidation squelching the genuine public health concerns that are wrapped up in these lawsuits. In matters of great public concern, the Federal Courts have traditionally blazed the trail for litigation to follow. Civil Rights is just one example of the Courts overcoming political hindrances that prevented passage of appropriate legislation until 1964.

  7. Mespo:

    I am all in favor of leveling the playing field but my concern is legislation by litigation and the circumvention of the political process. Moreover, I am not sure that it is fair to ignore differences among smokers, who must bear some responsibility for their own risk-based decisions.

  8. JT:

    In this time of tremendous disparity in resources between the litigants, class action remains the most viable way of leveling the playing field. We all know from asbestos, tobacco, and other multiple claims litigation that the industry acts in concert to defend and sometimes fraudulently derail these individual suits. Cumbersome or not, they represent the best counter-balance to corporate takeover of the tort system. Ask big Tobacco, big Asbestos, and big Pharma, they all like individual suits too.

  9. Patty:

    I think you are right on the money. Much of the public does not realize that certification of the class is usually the death knell for any defense to the claims. The sheer number of claims and their attendant risk for the company almost always insures matrix settlements on terms favorable to the Plaintiffs. This is why the battle is so pitched, and why our increasingly conservative courts will parse any point to deny commonality of claims. Seemingly, they regard class action as social engineering by lawsuit instead of what it truly is which is compensation for wrongs committed. It’s a stacked deck against Plaintiffs from which Weinstein would not deal, but his higher brothers apparently would. “Right because they are last,” indeed.

  10. Patty C:

    Good point. My objection is not to individual lawsuits (though some I believe are appropriately barred by assumption) but to these massive class actions against an entire industry. I think the fraud cases to be particularly interesting and perhaps the most promising line of litigation. However, this case was simply to large to maintain.

  11. Without having read any of your links, JT, I doubt it is either ‘the taste’ or ‘the ad’ but the rather dubious ‘notion’ of Light cigarettes which is negated by the science which shows they are not only NOT less harmful, they are at least equally harmful to the so called ‘full flavor’ variety and probably more so because people smoke(d) more AND because of the Lite filter construction.

    Remember, it’s in the tobacco company’s interest to keep smoker’s hooked – for life…

Comments are closed.