Tobacco Litigation Trials: 1954-present Plaintiffs Find A New Argument

Beginning in the early 1990s, however, with antismoking sentiment growing stronger, several changes in litigation procedures occurred. Plaintiffs' lawyers, drawing upon their experience in recent class action injury claims—among them the Dalkon Shield and asbestos suits of the 1970s and 1980s—began to apply their lessons to tobacco litigation. They started to coordinate their efforts with other attorneys, and they sought new strategies and new legal tactics to eliminate the roadblocks that earlier smoker/plaintiffs had faced. Many of these attorneys had watched smoker friends and relatives die of lung disease, and the similarity of these diseases to those of asbestos victims made the asbestos cases especially useful.

Among the leaders of the third wave of tobacco cases were Michael T. Lewis of Mississippi, who HAD lost a friend to what he believed was a smoking-related illness; Richard F. Scruggs, a successful Mississippi asbestos litigator; and Wendell Gauthier, a New Orleans class action lawyer whose best friend, Peter Castano, had recently died of lung cancer. Gauthier joined forces with Ronald L. Motley of Charleston, South Carolina; John P. Coale of Washington, D.C., who had recently sued Union Carbide on behalf of 60,000 people in the wake of the Bophal, India, chemical disaster; and other tobacco and class action litigators. Together the group formed a coalition of attorneys from 60 firms, each of which pledged $100,000 to help cover litigation costs. They decided that their principal tactic would be a federal class action lawsuit on behalf of the tens of millions of addicted smokers in the United States. The case agreed upon was that of Peter Castano, Gauthier's friend, which they filed in March 1994.

The new legal strategy was not to be product liability but instead deception leading to addiction. In 1998, Surgeon General C. Everett Koop had stated that smoking was addictive. But even earlier in 1994, the Food and Drug Administration (FDA) began investigating the charges that tobacco companies had secretly and deliberately increased cigarettes' nicotine content to enhance their addictive quality. This charge eliminated the weakness in earlier plaintiffs' arguments to the effect that they had known of all the dangers from smoking. According to the arguments in the Castano case, the tobacco companies had concealed the full dangers, and so the plaintiffs could not have been responsible for their contracted illnesses.

Given the resources that the attorneys now had, and the potential payout amount involved, the plaintiffs could now meet the tobacco industry on its own terms with a realistic hope for victory and leverage enough for a possible settlement. But the Castano case opened the attorneys to the usual criticism of class action lawsuits: the lawyers would get rich leaving not much for the plaintiffs, who would not be able to file individual suits in the event of a class action victory or settlement. As a result of these criticisms, some attorneys, such as Norwood Wilner and Gregory H. Maxwell of Florida, continued to sue individually, though they also worked to some degree with the Castano attorneys.