CHARLESTON — Lawyers starting a giant product liability trial against cigarette makers couldn’t find enough open minds to fill the jury box.
Circuit Judge Arthur Recht of Wheeling called off the trial on its third day, after only six of 650 prospective jurors qualified for service.
Recht said on Feb. 4 that he would start trial in June with a jury pool of 2,000.
“It is a very polarizing issue,” he said. “Everybody has a view and the more time goes on, the views become more solidified.”
Phase one of the trial in this case wouldn’t address the individual facts or claims in the more than 1,000 suits filed. Phase two would identify victims and award damages. The cases were consolidated for mass litigation in 2000.
The complaint alleges the defendant companies — Philip Morris, RJ Reynolds, Brown & Williamson and Lorillard — could have made safer cigarettes and deceived everyone about health risks.
The current plaintiffs allege that Philip Morris, RJ Reynolds, Brown & Williamson and Lorillard designed defective products and deceived consumers. The trial would determine liability. If jurors hold the companies liable, a second jury would award damages. The trial would focus on corporate conduct and not on individual circumstances.
Defense counsel have included Pamela Campbell, Henry Jernigan, Brace Mullett, Teresa Thompson and Jeff Furr.
Lead plaintiff counsel is Kenneth B. McClain, of Humphrey, Farrington and McClain in Independence, Mo., plus Scott Hall of the same firm. Local counsel includes Cindy Kiblinger and Tim Barber.
Recht said that when he held a tobacco trial in 2001, it took three days to pick a jury.
“The passage of time has made this even more subject to controversy,” he said.
Recht presides over tobacco cases by appointment of the mass litigation panel of the West Virginia Supreme Court of Appeals.
Although the cases came from many counties, the jury pool came entirely from Kanawha County.
Each prospective juror received a questionnaire with more than 100 questions.
Lawyers studied the responses and excused hundreds of prospects.
Prospects that looked like they might qualify received notices to report to Recht’s court.
Recht summoned them one by one to explain the answers on their questionnaires.
Lawyers excused a woman who said people have no right to sue over diseases that are listed on the warning label of a package.
They qualified a woman who said she doesn’t jump to a conclusion until she knows the whole story.
They needed more like her, but they didn’t find many.
Recht said, “It was a disappointment for me and for everybody because schedules have been arranged for months.”
Kanawha Circuit Court case number: 08-C-5000