Supreme Court Lets Stand West Virginia Ruling Striking Plaintiffs’ Tobacco Claims

WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court on June 8 declined to review a ruling by the West Virginia Supreme Court of Appeals rejecting the claims of more than 1,000 state residents against the tobacco industry (Ronald Accord, et al. v. Philip Morris USA Inc., et al., No. 14-1211, U.S. Sup.). 

The Supreme Court let stand the state high court’s Nov. 3 split decision finding that a state court judge did not err in instructing a jury in its consideration of liability and punitive damages issues in a consolidated action against Philip Morris USA Inc., R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Corp. and Lorillard Tobacco Co.  

Bifurcated Action

The suits, filed between 1998 and 2001, were consolidated before Ohio County Circuit Judge Arthur M. Recht, sitting by designation in the Kanawha County Circuit Court.  The suit was bifurcated, with Phase I limited to general liability issues common to all defendants and entitlement to punitive damages and Phase II focusing on individual claims. 

Jury trial in Phase I got under way on April 13, 2013.  The jury was given seven claims to consider:  product defect, defective design; product defect, failure to warn before July 1, 1969; product defect, failure to instruct for “ventilated filter cigarettes” between 1964 and July 1, 1969; negligent design, testing or manufacture; breach of express warranty; fraudulent concealment before July 1, 1969; and entitlement to punitive damages.  On May 13, 2013, the jury found for the tobacco companies on all but one claim:  that “all ventilated filter cigarettes manufactured and sold by Defendants between 1964 and July 1, 1969 were defective because of a failure to instruct.”  The plaintiffs appealed. 

Assignments Of Error

Affirming in a 3-2 decision, the West Virginia high court rejected six assignments of error raised by the plaintiffs. 

Specifically, the court said the lower court did not err in instructing the jury on the standard for strict liability or in submitting affirmative defenses as verdict-directing instructions.  Nor did the court err in dismissing hundreds of complaints with prejudice for failure to provide a deposition or baseline information or in its instruction that punitive damages must be proven by clear and convincing evidence, rather than by a preponderance of the evidence, the court said. 


The court also affirmed the lower court’s ruling that post-1969 claims for fraudulent concealment, statutory fraud and strict liability are preempted by the Federal Cigarette Labeling and Advertising Act.  The court found further that the plaintiffs mischaracterized the court’s instruction on the issue of the safety of cigarettes as requiring a finding that all cigarettes manufactured by the defendants were equally unsafe. 

Finally, the court rejected the plaintiffs’ contention that the court erred by preventing them from questioning the jury panel about an individual’s “personal choice” to smoke. 

Justices Brent D. Benjamin, Menis E. Ketchum and Allen H. Loughry II formed the majority.  Dissenting without published opinion were Chief Justice Robin Jean Davis and Justice Margaret L. Workman. 

Plaintiffs are represented by Kenneth B. McClain and Scott B. Hall of Humphrey Farrington McClain in Independence, Mo.  Among the attorneys representing the tobacco companies are W. Henry Jernigan Jr. of Dinsmore & Shohl and Susan M. Robinson and Sarah A. Martin of Thomas Combs & Spann, all in Charleston, W.Va.

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