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New York Appeals Court Rejects Class Certification; Smoking Case Depends On Evidence From Each Smoker 

In the brief but blunt opinion, the court said that these kinds of claims against cigarette manufacturers are utterly dependent on a jury's resolution of individual issues, which requires looking at the facts on a case-by-case basis. The plaintiffs' lawyers had sought to distinguish this case from previous smoking class-action litigation by telling the court that questions of addiction would not be part of their claims. However, the court said such issues cannot be ignored and must be determined individually. The decision, in the Geiger case, was released late Wednesday.

Issues such as addiction and legal causation, the court said, "must be resolved on a case-by-case basis, and thus, the difficult questions of causation and the extent of the injuries weigh against class-action treatment."

Additionally, the court noted that the plaintiffs' claims based on allegedly defective cigarette designs - in which plaintiffs alleged the companies had manipulated nicotine levels and failed to develop safer products - could not be resolved in a class-action trial. That was so, the court said, because "cigarettes are not a generic product." The court said the jury would have to consider evidence regarding each type and brand of cigarette smoked by each member of the proposed class.

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Class Action Certification Denied 

"Today's decision by the Supreme Court of New York, Queens County, is yet another demonstration that smoking and health lawsuits cannot be maintained as class actions.

"In this case, Justice Nathan Berke rejected the plaintiff's application for class certification, because 'the number and significance of individual issues overwhelm those which are arguably common to the class.' The court ruled, for example, that 'lung cancer has many risk factors such as heredity, alcohol, occupational exposure, environmental exposure, diet, and smoking, and throat cancer has diverse risk factors such as periodontal disease, marijuana use, and tobacco use.' Each of these factors, the court said, would have to be explored on an individual basis. . . "Daniel J. O'Neill, an attorney for Brown & Williamson Tobacco, stated that the court's decision reflects a clear recognition that smoking and health cases must be litigated on an individual basis, and not on a class basis. He said that the court's decision was thorough and compelling."

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