The federal district judge Jack B. Weinstein of Brooklyn, who has a long experience in handling mass injury cases and who has handled suits involving asbestos and Agent Orange and has 10 tobacco suits pending right now, virtually invited the plaintiff lawyers to file a class action in his court.
This strategical move on the part of plaintiffs' lawyers is new and creative because all the previous tobacco class actions were dismissed because they sought both punitive and compensatory damages. This suit seeks only punitive damages, and therefore deals only with common issues of fact - the conduct of the defendants. Thus, it may make a class action status easier to grant.
Also, this case differs significantly from the two cases recently decided by the Supreme Court in that this law suit was not filed as a consolidation for the purpose of a settlement action.
This highly unorthodox legal approach is another attempt by plaintiffs' lawyers to win the biggest money litigation in history.
The tobacco industry already has agreed to settlements that commit cigarette companies to pay nearly $250 billion over 25 years. But the industry still faces many other lawsuits that have forced the companies to spend hundreds of millions of dollars in defending themselves and have affected the stock market.
Although lawyers for tobacco industry have expressed confidence that the $145-billion punitive damage verdict in that case will be overturned, they face trials in West Virginia and Louisiana that also could yield large punitive awards, said John Coffee, a professor at Columbia Law School.
If Judge Weinstein certifies the class as all tobacco smokers in the United States, a verdict or settlement greater than the $145 billion recently awarded in a Florida class action that is now on appeal is likely to follow.
However, this proposed action could in a way benefit the tobacco companies because it could provide the companies the sort of financial certainty they have been seeking without success in attempts to resolve tobacco lawsuits.
But William S. Ohlmeyer, a vice president and associate general counsel of Philip Morris, the nation's leading cigarette maker, was in no hurry to settle this matter, stating that the company "will oppose any effort to certify any of these cases as class actions, two dozen state and federal courts in other cases have concluded that you can't treat tobacco cases as class actions."
A class action could be created over the industry's objections, although appeals could take many years.
The law suit alleges that cigarette companies conspired for more than four decades to conceal the danger of their products and the addictiveness of nicotine - a key ingredient in cigarettes, thus leading to 400,000 cigarette-related deaths every year and to high public health costs.
"The aggregate harm to plaintiffs and society caused by defendants' misconduct, and the need to punish and deter defendants, is so extreme" that only a single, nationwide case can effectively vindicate the rights of injured smokers, said attorneys for plaintiffs.
If a class of smokers was certified, any punitive damages awarded would not go to individuals. Instead, the money would be placed in a fund to be used for "the greatest possible public benefit," such as medical and scientific research and public health programs.