WASHINGTON -- A federal judge in New Orleans agreed yesterday to let tens of millions of smokers link up in a blockbuster lawsuit that seeks billions of dollars in damages on a new but simple claim: that the industry intentionally makes cigarettes addictive to destroy smokers' ability to quit.
The single-case approach, which is deeply threatening to tobacco companies, is a key part of the strategy of some of the nation's most successful law firms, joining forces to try to best an industry that up to now has fought off almost all the legal claims of smokers.
If it withstands a planned appeal, the ruling by Judge Okla Jones II would severely limit the "divide and conquer" tactic of industry lawyers -- a tactic that has usually defeated individual smokers or their survivors.
Judge Jones gave the vast number of smokers who would be affected by the case a chance to have their lawyers make key legal claims in one trial. A finding that the industry did wrong in causing smokers to become addicted would apply to everyone's individual case.
But in other facets of the 34-page ruling, the judge gave the industry a chance to try to defeat individual smokers' claims that they personally were entitled to damage payments.
Under the ruling, decisions by the jury that will decide legal issues for all in the mammoth lawsuit would be binding on a "class" of smokers numbering about 50 million, plus their families and heirs.
The dispute could take his court on a legal excursion into cigarette manufacturing practices dating back to 1943.
The judge remarked: "With this decision, the court embarks on a road certainly less traveled, if ever taken at all." The "massive litigation," he added, "will be a daunting task with long, difficult days ahead."
Any final verdicts in the case, including any awards of damages, are years away. The lawyers who filed the lawsuit sent the judge a plan, 47 pages long, of how to try the case, splitting it up into four phases.
Past lawsuits against the tobacco companies focused on claims that individuals got sick or died from smoking. The new suit is keyed to the claimed harms of nicotine addiction, a dependency that the suit argues is similar to heroin or cocaine addiction.
It contends that the makers of cigarettes have known for decades that nicotine causes addiction, that they intentionally laced cigarettes with enough nicotine to make sure smokers get hooked, and that they kept all of those efforts secret from smokers.
The lawsuit quotes an internal industry document from 1973 as saying: "Think of the cigarette as a dispenser for a dose unit of nicotine. . . . Think of a puff of smoke as the vehicle for nicotine."
Although tobacco companies fended off past health claims by ** arguing that smokers knew they were taking health risks and smoked anyway, the lawsuit in New Orleans says smokers never had a chance to make an "informed choice" to become addicted to nicotine.
The industry's stocks on Wall Street were buffeted by initial reports of Judge Jones' decision, with Philip Morris, for example, falling by more than $2 a share. Prices rebounded later in the day, when the exact scope of the ruling became clear.
As in all matters involving tobacco and the law, there was sharp disagreement from the two sides about what Judge Jones had decided. H. Russell Smouse, a lawyer speaking for Peter G. Angelos' Baltimore law firm, called the ruling "an extremely hopeful opinion for the clearest victims of the tobacco industry, those addicted to smoking." He said that, "without a doubt," the judge had allowed a single trial for the most significant issues in dispute.
The Angelos firm, one of the five dozen law firms that have teamed up in the tobacco lawsuit, has gained prominence by successfully pursuing a massive case that in some ways is like the tobacco legal challenge: The firm's suits won millions of dollars to compensate for injuries or deaths of workers exposed to asbestos.
Typical of reaction to Judge Jones' ruling from cigarette makers was this from the third-largest manufacturer, Brown & Williamson Tobacco Corp.: "The decision still enables the company to defend itself using the proven arguments that have convinced juries in previous trials." It said it was confident of ultimate victory.
R.J. Reynolds Co. said the case would now become "an unwieldy burden" on the courts.
At this stage, the lawsuit makes no claim that anyone suffered physical injury from nicotine. It does, however, claim emotional harm from the effects of the addiction.
The larger claims in the case are that the industry engaged in widespread fraud and deception, forcing nicotine on an unsuspecting public and reaping huge profits from the addiction that cigarettes created.
The lawsuit asks for unspecified damages, probably running into the billions of dollars, and seeks a refund of every cent smokers paid for cigarettes, plus a "disgorging" of the industry's profits from selling cigarettes.
Judge Jones stressed that he was making no ruling at this point on whether the industry did anything wrong at all, caused any of the harms the lawsuit asserts, or owes anybody any money. The sole question he settled was whether the case should go ahead as a "class action" -- that is, a single lawsuit affecting a vast group of individuals making the same claim.
bTC The judge said those who would be linked in the lawsuit are all smokers who have gone to a doctor and were diagnosed as being dependent on nicotine, plus all smokers who had been told by a doctor of the health hazards of smoking but did not quit.
That was far broader than the cigarette companies wanted. They had argued that no group could be identified with close enough legal claims for the same lawsuit. But it was narrower than the lawsuit had originally sought. The lawyers wanted the group to include all smokers who had made at least one effort to quit and had failed.
When a "class" is identified for a lawsuit, everyone in the country who fits into that class must be given a chance to "opt out" of the lawsuit. If they don't, they cannot later file a lawsuit of their own along the same lines.
Judge Jones has not yet decided how smokers are to be told that the group has been defined and that they must "opt out." The lawsuit suggests that notices in the media might be sufficient, but that it might be necessary to put notices on cigarette packs and cartons.
HIGHLIGHTS
* A U.S. District judge in New Orleans certified a lawsuit for a single trial on damage claims by millions of U.S. smokers.
* The suit, which could lead to damages of billions of dollars from cigarette makers, applies to anyone who failed to quit despite a doctor's warning, or was diagnosed as dependant on nicotine.
* The nation's tobacco giants and their parent companies were named as defendants.