Blowing Smoke

Oh no, not again. Jack B.Weinstein, a Lyndon Johnson appointee to Brooklyn's federal bench and legal loon extraordinaire, is now dipping into wacky tabaccy litigation, having decided yesterday to allow a $200 billion class action suit to proceed in his courtroom allegedly on behalf of smokers of "light" cigarettes. That amount could inflate to $600 billion if plaintiffs succeed in turning this into a Racketeer Influenced and Corrupt Organizations case, as they hope to do. The suit charges that tobacco companies knew lights were just as bad for a poor smoker's health as regular cigarettes but fraudulently sold them anyway and now should have to pay the plaintiff's bar, er, individual "victims" as penance.

The case itself is likely to be a nightmare. It has already been wending its way through the courts since 2004, charging that tobacco companies like Philip Morris USA and Lorillard responded to growing health concerns about cigarettes by starting to market "light" cigarettes in the early 1970s despite, at least according to the plaintiffs' attorneys, internal corporate memos noting that the health risks were the same. Judge Weinstein's decision yesterday to certify the class of plaintiffs in this case effectively lumps tens of millions of smokers into one big litigious class.

The plaintiffs in the suit are now all those who have bought light cigarettes over the past 30 years, period. And that might not be the last word, because Judge Weinstein in his ruling has left the door open for the suit to expand to cover people who bought "low-tar" cigarettes as well. We would say this was like asbestos litigation, except that it's so much more devilish.

Whereas in asbestos class actions and their spawn, silicosis claims, plaintiffs had to go to the trouble of manufacturing evidence to "demonstrate" medical harm, they won't even have to do that here.This suit simply claims that people wouldn't have paid as much for light cigarettes had they known the smokes were as dangerous as regular cigarettes, and to prove that the plaintiffs have had to muster only a putative opinion poll or two.

Lest anyone think the plaintiffs had to engage in some fast lawyering to slip such nonsense by a federal judge of 40 years' experience, think again. Judge Weinstein is, to quote a Wall Street Journal editorial from 1984, "the most skillfully activist judge on the federal bench." One of his first adventures in mass-tort litigation came that year, when he pressured a bevy of chemical companies into accepting a $180 million settlement with veterans over Agent Orange before averring, barely five months later, that the plaintiffs hadn't had much of a case.

The early 1990s found Judge Weinstein presiding over asbestos lawsuits. By the end of that decade, he was venturing into gun litigation, presiding over several lawsuits filed by the National Association for the Advancement of Colored People and the City of New York that could generously be described as "inventive." He was reversed on appeal. When one reads about Judge Weinstein, the phrase "friendly to plaintiffs" keeps popping up. He's made mass torts something of a hobby, given the number of them over which he has presided and the fact that his senior status on the bench, attained in 1988, has given him wide latitude in selecting his cases.

Mix it all together and you get a legal disaster waiting to happen. This case, and especially Judge Weinstein's ruling, is certainly nothing to be taken lightly (no pun intended). The last major wave of tobacco litigation turned out to have little to do with health claims and a lot to do with greed on the part of state politicians and trial lawyers, many of whom are still fighting with each other over billions of dollars in fees. The latest tobacco case illuminates what the trial bar can do these days with nothing but a wing, a prayer, a poll, and a sympathetic judge.