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Tobacco liability trial goes to jury

Chip Ellis
Kenneth McClain, the lead plaintiffs' attorney, tells jurors Tuesday that smokers were fooled into thinking filters made cigarette smoking safer.
Chip Ellis Closing arguments took place Tuesday in a case to decide whether tobacco companies are liable for harm to West Virginia smokers. Jurors will begin deliberations at 8:30 a.m. Wednesday.
Chip Ellis Senior Status Ohio County Circuit Judge Arthur Recht has been handling the case for about 13 years.

Read an updated story from today's court action.

CHARLESTON, W.Va. -- An attorney representing hundreds of West Virginia smokers told jurors Tuesday that tobacco companies could have made cigarettes safer but didn't.

However, Jeff Furr, the lead defense attorney representing tobacco companies, said they tried.

During closing arguments in a case to decide if tobacco companies are liable to West Virginia smokers, Furr said tobacco companies spent billions of dollars trying to make their products safer.

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

The jury of five women and three men also will decide if the companies could be liable for punitive damages. Deliberations will begin at 8:30 a.m. Wednesday.

The trial began April 22 in the ceremonial courtroom of the old Kanawha County Courthouse.

Kenneth McClain, the lead plaintiffs' attorney, told jurors tobacco companies knew the dangers of smoking, but continued to advertise cigarettes in the 1950s and '60s as if they were safe.

He showed a magazine story titled "Smoke Without Fear" to jurors and said companies disputed cigarettes' link to cancer.

Smokers were fooled into thinking filters made smoking safer, according to McClain. Companies designed cigarettes to be highly addictive, he said.

"There was a time -- we have a more jaded view of companies now," McClain said. "It used to be that companies liked us and cared for us."

Furr told jurors that companies did attempt to make safer cigarettes, and customers did not accept them. For example, he said, Carlton, introduced in 1964, "came close to eliminating nicotine and tar."

"There's no such thing as a safe cigarette," Furr said.

"There are products in our society that are dangerous by nature, like guns, knives -- things like that. It's just a part of the natural attribute of the product. And that's the category that cigarettes fall into."

Jurors won't be able to come to the conclusion that the companies are liable, according to Furr, as tobacco's health effects were widely known before 1969 and even before warning labels were added to packs.

"It was generally known or could've been discovered by a reasonably diligent inquiry," he said, noting that's what the jury instructions say must be determined when deciding liability.

"Beginning in the 1890s, school texts taught smoking is dangerous and leads to a shorter life," he said.

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

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. Senior Status Ohio County Circuit Judge Arthur Recht came up with the two-phase model to handle the case.

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.

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.

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


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