The nation's largest consolidation of smokers' lawsuits continued its march toward a late spring 2007 trial during a hearing at Ohio County Circuit Court Oct. 16. Judge Arthur M. Recht refused to give plaintiffs' attorneys another extension on the time allotted to locate relatives of plaintiffs who died before they could give their depositions in the case. The plaintiffs are suing cigarette makers for damages, accusing them of manufacturing products that caused their illnesses or deaths.

What started as about 1,100 plaintiffs has been whittled to roughly 800 smokers suing cigarette makers. The defendants in the case include cigarette manufacturers Philip Morris USA, R.J. Reynolds, Brown & Williamson, Lorillard and British American Tobacco.

No More Time

Recht already gave plaintiffs a 30-day extension on finding relatives who could pursue the wrongful death claims, but that period expired in September. Missouri-based Ken McClain, the lead plaintiffs' attorney, said they were able to locate about half the total number of relatives needed, but heirs for an estimated 160 plaintiffs remained unaccounted.

"Even with four people working on it full time ... we can't find them," McClain said. "We are trying to find the other 160. It's a hard thing to track them down. ... Assuming that (160) is the number, we are asking the court for another 30 days."

Jeff Furr, an attorney for R.J. Reynolds, which also owns Brown & Williamson, said the defense opposed the first 30-day extension and was against any additional time allowed to locate family members of possible plaintiffs who already had died.

"For those plaintiffs who have failed, yet again to provide ... the minimum discovery (information) to the defendants as indicated in the case management order, let's put them behind us and out of this case," Furr said.

Recht said the issue "has been a thorn from the beginning."

"The whole idea, for better or worse, was to try to strike a compromise that hopefully was as fair as could be arranged," he said before denying the motion for another 30-day extension. "... The time period was set for the 18th of September, and I'm going to stick to it. Even to get to that was a compromise."

Summary Judgment

Another issue tackled during the hearing involved whether Recht would grant summary judgment to the defendants or dismiss the claims of some plaintiffs who may have waited too long to file their lawsuits.

Generally speaking, a person has two years from the date of injury or learning of the injury to file a personal injury lawsuit.

Defense attorney Andrew Gaddes, who represents Philip-Morris USA, said some of the information they were given on plaintiffs indicate some of those people suing the tobacco companies were diagnosed with a smoking-related illness more than two years before they sued.

Recht said the West Virginia Supreme Court of Appeals is not specific on whether those kinds of issues can be handled by the judge alone or by a jury. A 1997 Supreme Court opinion states summary judgment issues should go before a jury, but a 2005 opinion said judges can decide some of those kinds of cases as a matter of law without a jury. One of the key differences is whether the facts affecting a plaintiff's claim are in dispute.

In the tobacco case, the plaintiffs' attorneys argued defense counsel does not have all the information needed to determine whether those plaintiffs in question were within the two-year statute of limitations.

"I guess there is no bright line -- that's what the Supreme Court is saying -- as to whether summary judgment is available if there are no triable issues of fact," Recht said.

Without more information on those plaintiffs, it's difficult to determine whether their lawsuits were timely, he said. It is simply too early in the case to rule on whether summary judgment is appropriate for those plaintiffs, and Recht denied the defense motion to dismiss that group of smokers.

Venue, Jury Issues

A few other topics raised during the Oct. 16 hearing involved how many prospective jurors should be added to the next Ohio County jury pool and whether the tobacco lawsuit even should be staged in the county.

Attorneys on each side agreed they would need to be able to choose from among at least 200 pre-screened jurors -- meaning 200 people who are available to serve on a jury for what is projected to be a long trial.

Ohio County Circuit Clerk Brenda Miller said that would mean adding 500 additional slots to her next jury pool, which will be notified next month. Adding another 500 should give the tobacco case enough eligible jurors for the lawyers to screen out those with any bias related to smoking and assemble a full jury plus alternates.

But one of the plaintiffs' attorneys questioned why the trial was supposed to be held in Ohio County. Charleston lawyer Tim Barber said most of the in-state attorneys involved in the case were from the Charleston area, and most of the lawsuits were filed in counties other than the Northern Panhandle.

"I really don't think the appropriate place is Ohio County," Barber said.

Recht said it's a matter of convenience. As a member of the mass litigation panel, Recht is handling this trial, and he is based in Ohio County. But Barber said even though it is convenient for the judge, nearly all the lawyers involved are based elsewhere.

"I think it's not a good jurisdiction for try this case," Barber said.

Recht said he would consider changing the venue if everyone involved wanted to move the trial, but Furr spoke up and said he had no problem holding the trial in Wheeling.

Incidentally, Furr was the lead defense attorney in the massive medical monitoring class action lawsuit against the tobacco industry that ended in 2001 with a defense verdict in Ohio County Circuit Court. That lawsuit -- and the cigarette makers' victory -- made national news.