Posted on 09/04/2001 5:52:02 AM PDT by Just another Joe
Words pose health risk for suit over smoking
Vicki Smith - Associated Press
Monday, September 3, 2001
Wheeling, W.Va. --- A landmark lawsuit aimed at forcing the tobacco industry to provide free annual medical tests for healthy smokers is a potential minefield for the dozens of witnesses expected to testify.
Jury selection begins Wednesday in the class-action lawsuit, which has been carefully structured with restrictions on what can and cannot be said to preserve its status as a class action.
The lawsuit, against four of the nation's biggest tobacco companies, covers some 250,000 West Virginians who have each smoked the equivalent of a pack a day for five years but who are not sick.
It is the first lawsuit of its kind to go to trial in the United States. It essentially is a product liability case with medical monitoring as the proposed remedy for wronged consumers.
Lawyers and witnesses must focus only on issues that are common to any smoker, avoiding those that are unique to any particular smoker. The case must focus on the conduct of the tobacco companies, the judge said.
The first attempt to try the case ended in a mistrial in January after a witness made an apparently inadvertent reference to addiction. That was one of the words banned from testimony because the tobacco companies argued it raised issues of individual behavior and reasons for smoking, compromising the cohesion of the class.
"We are in somewhat of a thicket created by the desire to proceed as a class," said the judge in the case, Ohio County Circuit Judge Arthur Recht, a former state Supreme Court justice experienced in mass litigation.
In this retrial, witnesses can mention addiction but not the reasons people start to smoke or their ability to stop.
Lawyers for R.J. Reynolds, Philip Morris, Brown & Williamson and Lorillard can suggest that people should quit smoking to stay healthy, but no one can discuss whether smokers can quit.
Witnesses can discuss tar, but they can't talk about the ways smokers compensate to inhale more of it, such as covering tiny air holes near filters with their fingers.
The taboo issues have become known as the potentially explosive "C words": cessation, compensation and choice. Any one of them could derail the trial.
Opening statements are set for Sept. 10, with six jurors and four alternates expected to sit through testimony into December.
A class-action medical monitoring case also is in the courts in Louisiana, but it differs from West Virginia's in several ways. For one thing, the Louisiana case also asks the tobacco companies to help smokers quit.
Jury selection for the Louisiana trial took two months this summer. Testimony was tentatively set to begin this Wednesday, but it might be delayed by a pending appeal on the jury selection method. A gag order prevents lawyers from discussing the case. Medical monitoring in the West Virginia case means annual lung-function tests for people 45 and older, and more sophisticated annual testing for those 50 and older.
The tobacco companies contend the tests the smokers want are experimental and unproven at diagnosing disease early enough to make a difference in the outcome.
The smokers' case is built on thousands of internal industry documents and public records, which the plaintiffs will use to try to show cigarette makers designed a defective product and pursued the most effective ways to deliver nicotine without regard for health risks.
Let me tell you why - these folks don't want any personal responsibility. They want the free ticket to say, "It wasn't my fault".
They want all responsibility to be taken by the tobacco companies for their own choice to smoke.
If you can sue the tobacco companies, you should be able to sue the government agencies as well, who share, no far exceed, their share of the "take".
And that's a fact.
Most of the money garnered by the states from their rape of big tobacco HAS gone into the general fund to keep the states from going bankrupt.
It seems like ALL government just can't control its' spending.
Which is why even given all the hot air and blustering done by the Fed. Gov., cigarettes will never be outlawed. The government is not going to allow itself to take that sort of a financial hit.
You have a very valid point - but the people out to get smokers don't see it that way. They see the government as the ones who have to help. Again, a lack of personal responisibility.
Banning WORDS now, OMG!
That's where the personal responsibility comes in.
The first one's free, the next you buy for me.
The LIBERALS shake-down with great success, all succesful America businesses. Their aim is to control all finances. The biggest shake-down is Microsoft. Bill Gates pushed America's technology, PC, Intenert, telecommunication. When the LIBERALS insisted on shooting the Golden Goose, Mr Bill Gates, withdrew his support of technology, now the stock market is in the toilet.
I am disappointed that George W., Justice department continues the actions against Microsoft. If Microsoft was in a different country, I assure you that it would be a considered a national teasure and not treated as a liability. ONLY in LIBERAL AMERICA!
But Joe, if they take personal responsibility in this matter, then they would have to take it in all matters, and that would defeat the purpose of the nanny state.
The poor whiney wimps who choose not to quit, have no right to go after a company that does not force them to smoke in the first place.
This society has become lawsuit and "it's not my fault" happy. With the prevailing winds allowing anyone and everyone to sue anything and everything on the flimsiest of reasons with the smallest amount of evidence... just because you prefer the "victim" mentality, doesn't mean the rest of us do.
Stand up, tell people.. "Yeah, I smoke, no one held a gun to my head to make me". Oh wait, there's that personal responsibility thing again.
That's right. WFTD class better look out! LOL
They tell me that everyone is concerned about their rights, but don't believe they have any responsibility. In other words, you have a right to have a company provide you with a 100% safe product, but no responsibility to exercise commonsense in the use of that product (eg. you aren't entitled to damages if you buy hot, black coffee at the McDonalds drive-thru, put it between your legs, then squeeze hard when you slam on the brakes at the traffic lights because you were eating your Big Mac, rather than watching the road...well, you wouldn't be in a sane society [this case caused disbelief when the lady succeeded]).
When I was in law school 10 years ago, one of the principles of the law of negligence they taught us was contributory negligence. In summary, if the provider of a product with a defect in it should reasonably have forseen the possibility of that product doing harm, they are negligent and liable for damages. However, if the person who has been injured contributed to their injuries by doing something unreasonable (ie. something stupid, or knowingly assumed the risks), any damages claim was reduced in proportion to the share of the blame borne by the injured party.
It seems the courts and society have focused solely on negligence and forgotten the principle of contributory negligence.
This also seems to be a mindset introduced by the babyboomer generation. I admit that it is arguable that in previous generations, the balance was too far the other way, but when I was a child, if I fell off the monkey bars and broke my wrist, it was just and accident that happened, not an actionable wrong. Is there a member of that generation out there who can shed some light on why this might be the case?
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