Plaintiffs' lawyers pooling resources in tobacco cases

LABEL: number of suits tripled

By Simon Avery ~ The Associated Press

LOS ANGELES -- Through 45 years of legal battles, tobacco companies have made only one payment to an individual smoker. But plaintiff lawyers, citing an unprecedented level of cooperation, say they are close to breaking that streak and forcing the industry to change its ways.

Closer cooperation among attorneys is making suits against the tobacco industry more attractive for law firms. So have several recent jury verdicts and the 1998 industry settlement with 46 states that put millions of pages of tobacco company documents in the public domain.

In less than three years, the number of individual suits against the major U.S. tobacco companies has tripled.

"In the near future, cases are constantly going to be brought and paid out," said Cliff Douglas, a plaintiff attorney and president of Tobacco Control Law and Policy Consulting, an Ann Arbor, Mich., firm involved in lawsuits against the industry.

Since litigation against tobacco companies began in 1957, only 12 cases have gone against the industry. Most of those wins are tied up in appeals; some have been overturned.

And despite widespread publicity in recent years surrounding large verdicts against tobacco companies, Brown & Williamson is the only company to make a payment to an individual smoker. The company wrote a $1.1 million check last year to a Florida man with cancer, after appealing his seven-year case to the Supreme Court.

'The fear factor'

Plaintiff lawyers contend the tobacco industry has succeeded by outspending opposing attorneys, who rely on contingency fees for payment and research costs.

But by sharing mounds of legal information, plaintiff attorneys say they have shaved as much as two years off research time and cut case costs by half, to about $200,000 each. Lower costs, in turn, have increased the number of firms willing to take a smoker's claim to as many as 200, up from just a dozen nationwide five years ago.

"The fear factor is falling," said Chuck Tauman, who won $150 million in punitive damages for a client against Philip Morris in March.

It was the second largest verdict awarded an individual smoker in U.S. history. A judge has since cut that award to $100 million, and Philip Morris is appealing the verdict.

Tobacco industry executives aren't worried about plaintiff attorneys' attempts to coordinate efforts, saying it's nothing new.

"It's a public relations strategy designed to attract clients," said William Ohlemeyer, vice president and associate general counsel at Philip Morris. "The reason they haven't been successful is not from want of effort, or talent, or resources. It's because the law does not support their claims."

In recent years, however, decisions increasingly have gone against tobacco companies. Eight out of the 12 plaintiff victories have occurred since 1999. The two largest verdicts ever awarded came in the last 12 months, helping dispel the notion of the industry's infallibility.

The number of tobacco-related cases has grown rapidly. Philip Morris, the nation's largest tobacco company, lists some 1,500 cases against it in the company's most recent filing with the U.S. Securities and Exchange Commission, up from 380 at the end of 1999. R. J. Reynolds, the No. 2 U.S. tobacco firm, says it is party to 1,684 cases nationwide, up from 541 at the end of 1999.

Documents on the Web

Plaintiff lawyers have also been able to strengthen their arsenals with the release of more than 20 million internal tobacco industry documents, largely the result of the 1998 agreement to pay more than $206 billion to 46 states over the next 25 years.

Most of those documents are accessible on the Web or at a depository in Minnesota. Lawyers have cooperated to sort and prioritize the material, making it an invaluable resource for any attorney assembling a case.

Lawyers fighting tobacco firms say their immediate goal is not to drive the companies out of business, but to force them to reduce their liability by making less addictive cigarettes and marketing them more responsibly.

But the industry contends its landmark settlement with the states has already resulted in sufficient regulation. It also says litigation has peaked.

"The present wave of lawsuits can in no truthful or meaningful way be said to have any other purpose but to enrich (plaintiff attorneys') wealth through contingency payments," said Dan Donahue, senior vice president and deputy general counsel of R. J. Reynolds Tobacco Co. "Litigation is not an appropriate tool for changing policy."

Plaintiff lawyers, however, said public opinion seems to be shifting against the tobacco companies.

In awarding $3 billion in punitive damages to a smoker last year (reduced to $100 million by a judge), a Los Angeles County Superior Court jury ruled against a long-standing argument made by the tobacco industry: that smokers knowingly choose to use a harmful product and should be accountable for their own actions.

The winning attorney, Michael Piuze, used internal industry documents to draw a picture of fraud and deception, some of it relating to addiction.

Piuze's terminally ill client, 56-year-old Richard Boeken, was smoking two packs a day by age 13. Besides smoking, he had been a heroin addict and an alcoholic. Piuze successfully argued that Boeken had been able to kick both heroin and alcohol, but despite all his efforts could not break from the addictive power of nicotine.

Boeken died in January, and Philip Morris is appealing the verdict.

Some of Piuze's key information had been uncovered by other successful lawyers, including Tauman.

'Trial in a box'

In turn, Piuze has made hundreds of his documents available on the Web and on compact disk. He's given what he calls his "trial in a box" CD to more than 100 attorneys involved in tobacco suits.

"Today, for the first time, lawyers are actually working together. Once we band together, we get economies of scale," said Piuze, who had never argued a tobacco case before.

On June 3, Piuze is scheduled to return to court representing Betty Bullock, a 63-year-old smoker dying of cancer. One of his key witnesses is Sir Richard Doll, the British researcher who first confirmed the link between smoking and cancer.

Piuze is videotaping Doll's testimony for trial and will open the deposition session to any plaintiff lawyer with a case against the tobacco industry so they also can use Doll's testimony.

"Congress should have already stopped this nonsense long ago, but the industry has a powerful lobby group," said Norwood Wilner, the attorney who won the only tobacco payment. "We will solve it through the tort system."