Case of light cigarettes may return to top court

By Judy Harrison, BDN Staff
Posted March 09, 2010, at 9 p.m.

BANGOR, Maine — A lawsuit over the marketing of light cigarettes could be headed back to the U.S. Supreme Court after a federal judge denied a motion to apply facts found in a previous case to the current one.

U.S. District Judge John Woodcock said in a 16-page decision issued Friday that it would not be fair to the litigants to apply the facts found by a judge in a jury-waived criminal trial in a case brought by the U.S. Department of Justice against tobacco companies to the potential class-action civil suit.

The lawsuit contends smokers of Marlboro Lights, Virginia Slims Lights and other light cigarettes were misled into thinking that the cigarettes contained less tar and nicotine than regular cigarettes.

Attorneys for the plaintiffs, who live all over the country, had asked Woodcock to apply the doctrine of collateral estoppel to the current case and adopt the facts found in the 2005 verdict in which a federal judge in Washington, D.C., concluded cigarette makers had violated racketeering statutes.

Efforts to reach attorneys representing cigarette makers this week were unsuccessful.

Bangor lawyer Samuel Lanham Jr., who represents the three Maine plaintiffs, said Tuesday he and other attorneys were “considering all the options,” including a possible appeal to the 1st U.S. Circuit Court of Appeals in Boston.

“Judge Woodcock’s ruling means we have to be put to our proof and we are prepared to do so,” Lanham said.

The next step in the litigation is for Woodcock to consider a motion to certify the case a class-action lawsuit.

The lawsuit is the first multidistrict litigation case ever assigned to federal court in Bangor. Multidistrict litigation, or MDL, is the label the federal judiciary gives cases filed against the same party or parties in federal courts around the nation. Once cases have been combined, a three-judge panel assigns them to one federal judge.

At least 20 lawsuits from around the country were combined last year and assigned to Woodcock, who has not handled one since his appointment to the federal bench in 2003.

Moreover, the original Maine case that led to the 20-case MDL is once again in the hands of Woodcock, whom the U.S. Supreme Court reversed. In a 5-4 decision won by the court’s liberals, the justices ruled in December 2008 that smokers may use state consumer protection laws to sue cigarette makers for the way they promote “light” and “low tar” brands.

The Altria Group Inc. argued on behalf of its Philip Morris USA subsidiary that the lawsuits are barred by the federal cigarette labeling law, which forbids states from regulating any aspect of cigarette advertising that involves smoking and health.

Lanham filed the lawsuit in August 2005 on behalf of Lori A. Spellman of Levant and Stephanie Good and Allain L. Thibodeau, both of Bangor. Each smoked Marlboro Lights for 15 years or more. The plaintiffs are not seeking damages for personal injuries or health problems caused from cigarette smoking.

Instead, the lawsuit alleges that they were hoodwinked into thinking that “light” cigarettes contained less tar and nicotine than full-flavor cigarettes. The plaintiffs are seeking unspecified compensatory, punitive and other damages.

Woodcock granted summary judgment in the cigarette makers’ favor in 2006. The 1st U.S. Circuit Court of Appeals reversed that ruling the next year, and attorneys for the tobacco firm appealed to the nation’s highest court. It was the first case argued during the U.S. Supreme Court’s 2008 term.

The Associated Press contributed to this report.

http://bangordailynews.com/2010/03/09/news/case-of-light-cigarettes-may-return-to-top-court/ printed on July 22, 2014