Appeal from tobacco companies rejected by W. Va. SC

John O'Brien Nov. 7, 2007, 5:31pm


CHARLESTON, W. Va. - By a 4-1 vote, the West Virginia Supreme Court of Appeals decided Wednesday not to hear the appeal of four major tobacco companies who claim a mass litigation proceeding against them needs to be updated.

Only Justice Brent Benjamin voted to hear the appeal, requested by attorneys for Philip Morris USA, Brown and Williamson Holdings, R.J. Reynolds Tobacco Company and Lorillard Tobacco Co.

According to the Kandi Greter of the Court's press office, no explanation will be given by the majority, which consists of Chief Justice Robin Davis and justices Larry Starcher, Joseph Albright and Spike Maynard.

At issue is the management order of a case involving more than 1,000 plaintiffs who allege their various physical ailments were caused by smoking. Ohio Circuit Judge Arthur Recht plans on having each individual plaintiff's case heard after a jury has already determined general liability and a multiplier for punitive damages.

Accused of fraud, civil conspiracy and general negligence, the tobacco companies claim not all the plaintiffs were similarly harmed. They say punitive damages should be decided on each individual case, not by using a multiplier, and cited a recent U.S. Supreme Court decision.

In her case, Phillip Morris USA v. Williams, Mayola Williams argued the tobacco company's advertising campaign calmed her husband Jesse's fears that smoking was unsafe. He smoked three packs a day and died of lung cancer.

Williams was awarded $821,485 in compensatory damages and $79.5 in punitive damages. The justices decided the punitive damages award was too disproportionate and based in punishing the company for effects on other smokers.

Based on that result, attorneys for the tobacco companies argued in their petition to the Court that creating a multiplier for punitive damages to be applied equally to everyone violated the 14th Amendment in the same manner.

"The inevitable result is to punish the defendant in each plaintiff's case for conduct that did not harm that plaintiff, but which may have armed others. Such a result violates due process," it says.

The plaintiffs say the companies are attempting to stall even further a case that is already 10 years old. Recht has said he thinks his process makes everything easier.

"You see, the problem -- what many times happens, I think, in punitive damages is, you start to overlap when you get into the issues of the size of the award, the ratios, reprehensibility, and that becomes mixed into the whole question of whether or not you're even entitled to punitive damages," Recht has said, according to court filings (which can be viewed here).

"Everything gets -- it's one big stew, and what we try to do in West Virginia is to make it a little easier."

He said the Williams decision doesn't apply to the case.

"There are no nonparties," he said. "I guess that's a terrible -- probably bad English..."

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