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Tobacco companies face judgment

CHARLESTON, W.Va. -- Jurors selected from what could be the largest panel ever assembled in the state's history are expected to begin deciding next week if tobacco companies are liable to West Virginia smokers.

Senior Status Circuit Judge Arthur Recht will preside in the trial, which began April 22 in the ceremonial courtroom of the old Kanawha County Courthouse.

Five major tobacco companies are named in the case, in which about 700 West Virginia smokers are trying to establish that they were harmed by using tobacco.

The six jurors and two alternates were chosen from a panel of 8,000 Kanawha County residents, the largest ever summoned in the state, Kanawha County Circuit Clerk Cathy Gatson believes.

West Virginia Supreme Court spokeswoman Jennifer Bundy said, "We believe this may be the largest jury pool from one county called for one case. The only other case to require a jury pool of that size was another tobacco litigation case that was heard in the Northern Panhandle. Several thousand jurors were called, but they came from several counties."

Closing arguments are set for 1 p.m. May 13 and jurors are expected to begin deliberations May 14.

The plaintiffs are trying to convince jurors the tobacco companies were negligent, designed a defective product or fraudulently withheld information about their products.

The jury also will decide if the companies could be liable for punitive damages.

The companies named as defendants are R.J. Reynolds, Brown & Williamson, American Tobacco Co., Philip Morris and Lorillard.

If the companies are found liable, different juries in future trials will determine if damages should be awarded and, if so, the amount, Recht said.

Two previous efforts to seat a jury in Kanawha County proved unsuccessful, Gatson said.

Those difficulties stemmed from potential jurors' strong feelings on both sides of the issues, according to Recht.

"Many felt individuals shouldn't be entitled to sue because they knew what they were getting into [by using tobacco products]," he said. "Others thought that tobacco companies were monsters and couldn't purge their minds of that."

In 2011, Recht declared a mistrial in Wheeling after it became clear the issues in the case were broader than had been anticipated, he said.

The case is being handled as mass litigation even though it is not a class action.

Mass litigation is for cases with "multiple parties that involve complex issues -- not conventional trials," Recht said.

Recht has been handling tobacco litigation for about 13 years. He was appointed as a senior status judge last year after his retirement.

"I feel like it's a part of me," he said.

In 2001, a Wheeling jury ruled in favor of the tobacco companies -- holding that they should not be responsible for smokers' medical monitoring. The state Supreme Court later affirmed that verdict.

Plaintiffs had attempted to require the defendants to pay for periodic doctor visits and tests to determine if smoking was the cause of their health problems.

If the companies are found liable in this case, and other trials are required to evaluate the damage claims, Recht hopes the cases would be divided among other judges.

"I'm 75, and those would take me well past 85," he said.

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.


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