Complex Litigation: Tobacco Light Action Dims

Abstract

Commentary and analysis of the Second Circuit decision in McLaughlin v. American Tobacco Co. (2d Cir. April 3, 2008), repudiating district judge Jack Weinstein’s class certification of so-called “light” cigarette smokers. The plaintiffs pursued the class action under civil RICO claims. The Second Circuit’s decision curtailed the utility of using civil racketeering claims as a basis for classwide mass tort relief. The court concluded that the proposed smokers’ class suffered from “an insurmountable deficit of collective legal or factual questions.” The decision also dealt a blow to the possibility of aggregate fluid-damage models for economic harms, often asserted in class litigation. The court held that the fluid recovery approved by Judge Weinstein offended the Rules Enabling Act, as well as the due process clause. This article surveys the history of mass tort litigation pursued against tobacco companies and the evolution of theories of recovery over time.