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From Products Liability Law Daily, June 8, 2015

High Court declines review of verdict for tobacco companies

By Susan Lasser, J.D.

A group of smokers’ petition to the U.S. Supreme Court to review a West Virginia Supreme Court of Appeals decision which upheld a jury verdict that went largely against them in a mass litigation involving personal injury actions against tobacco companies has been denied. The verdict had addressed the first phase of a two-part trial plan, with the upcoming Phase II involving separate proceedings to handle issues unique to each plaintiff (Accord v. Philip Morris USA, Inc., cert. filed April 3, 2015; cert. denied June 8, 2015).

Background. The underlying action involved several hundred personal injury cases filed by smokers between 1998 and 2001 against tobacco companies. The cases were referred to a mass litigation panel, and the West Virginia Supreme Court of Appeals appointed a judge to preside over them. The presiding judge issued a “Case Management Order/Trial Plan” that divided the litigation into a Phase I, which would coordinate general liability issues common to all defendants, including punitive damages; and a Phase II, in which separate proceedings would handle issues unique to each plaintiff. Phase I went to trial, and seven claims were submitted to the jury: (1) product defect, defective design; (2) product defect, failure to warn before July 1, 1969; (3) product defect, failure to instruct for “ventilated filter cigarettes” between 1964 and July 1, 1969; (4) negligent design, testing, or manufacture; (5) breach of express warranty; (6) fraudulent concealment before July 1, 1969; and (7) entitlement to punitive damages. The jury only found for the plaintiffs on their claim that all ventilated filter cigarettes manufactured and sold by the defendant companies from 1964 to July 1, 1969 were defective for a failure to instruct; the jury found for the defendants on the other claims. In a 3-2 memorandum decision, the West Virginia Supreme Court of Appeals (sub nom. In re: Tobacco Litigation (Accord v. Phillip Morris USA, Inc.)) upheld the jury verdict (see Products Liability Law Daily for November 4, 2014, and April 10, 2015 analyses).

Petition. The petitioners argued that there was a conflict in the state courts as to whether wrongful death statutes were completely derivative, partially derivative, or separate and distinct causes of action. The smokers complained that interpretation of the statutes as derivative has led to the removal of the due process rights of wrongful death plaintiffs. The petitioners also challenged the West Virginia Supreme Court’s preemption holding as contrary to U.S. Supreme Court precedent.

The smokers presented two questions for High Court consideration: (1) Whether the Due Process Clause of the 14th Amendment prohibited West Virginia from dismissing with prejudice a person’s wrongful death claims without first providing that person with notice or an opportunity to be heard; and (2) whether the Federal Cigarette Labeling and Advertising Act (FCLAA) preempts use defect claims based on a failure to instruct.

The case is Docket No. 14-1211.

Attorneys: Scott B. Hall (Humphrey, Farrington & McClain PC) for Ronald Accord; Jeffrey S. Bucholtz (King & Spalding LLP) for R.J. Reynolds Co.; Scott Adam Chesin (Mayer Brown LLP) for Philip Morris USA, Inc.; Michael B. Minton (Thompson Coburn LLP) for Lorillard Tobacco Co.

Companies: Philip Morris USA, Inc.; Brown & Williamson Holdings, Inc.; Lorillard Tobacco Co.; R.J. Reynolds Tobacco Co.

MainStory: TopStory TobaccoProductsNews SupremeCourtNews

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