WHEELING - The trial for personal injury tobacco cases will be moved to Ohio County and tentatively begin in March, Ohio County Circuit Court Judge Arthur Recht told lawyers on both sides Thursday.
The trial will be the second part of the tobacco litigation, the first of which, a medical monitoring case, was completed in 2001. The second part deals with personal injury cases against the major tobacco companies, including Philip Morris USA, Brown and Williamson Holdings, R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co. More than 1,000 individual cases have been filed against those companies.
Recht said the trial will be handled in two phases, with the first phase asking the jury to decide if cigarettes are a defective product and if they are reasonably safe for the purpose for which they are intended. Jurors also will be asked to consider if the conduct of the tobacco companies justifies punitive damages. The first phase of the trial is scheduled to begin March 21, running from 8:30 a.m. to 5 p.m. four days a week until it is completed, Recht said.
"Not everyone will be totally happy with this, but we have to start somewhere," he said.
Kenneth McClain, representative of the plaintiffs in the case, voiced his concern with the trial being moved to Ohio County, as did Timothy Barber, who said he believed Recht was only moving the trial to Wheeling for his own convenience.
"You are right," Recht told him, adding he had twice tried to hold the trial in Kanawha County where it was filed and had trouble finding jurors. "We did the medical monitoring case here and had no problems finding a jury."
Recht previously said part of the problem in finding jurors was the polarizing nature of the issue itself. On Thursday, he informed the assembled attorneys that a survey used to find potential jurors was also partly to blame, as it seemed to be too black and white in its questioning.
"It may have contributed to the problem rather than assist us in finding a jury," he said.
To combat this, Recht asked both sides to review a questionnaire used for the medical monitoring portion of the trial and make changes to make it relevant to the current trial. That questionnaire, expected to be ready to mail Feb. 4, will be sent to 1,500 potential jurors. Of those, six jurors and two alternates will be chosen.
McClain, however, said Recht's new idea for finding jurors is a good one and should be tried in Kanawha County to see if it has an effect.
"Since this was filed in Kanawha County, I think it is worth a try to see if it would work there," he said.
Recht remained steadfast on holding the trial in Wheeling, though McClain said he planned to submit his objection in writing. Additionally, Recht asked for the attorneys from both sides to submit any conflicts in scheduling they may have with the trial date. He said time restrictions would not be put on either phase of the trial, the second of which will take place if the jury finds tobacco companies to be at fault in the first phase.
The second phase, which would not begin until later in 2011, would have individual six to 10 cases heard at a time by multiple judges, Recht said.