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West Virginia Suit Goes to Trial Again

Jury selection begins today in a landmark lawsuit aimed at forcing the tobacco industry to provide free annual medical tests for healthy smokers.

The lawsuit, against four of the nation's biggest tobacco companies, covers some 250,000 West Virginians who have smoked the equivalent of a pack a day for five years but who are not yet sick. The class-action lawsuit has been carefully structured with restrictions on what can and cannot be said to preserve its status as a class action, according to Reuters.

The first attempt to try the case ended with a mistrial in January after a witness made an apparently inadvertent reference to addiction. That was one of the words banned from testimony because the tobacco companies argued it raised issues of individual behavior and reasons for smoking, compromising the cohesion of the class.

It is the first lawsuit of its kind to go to trial in the United States, essentially a product liability case with medical monitoring as the proposed remedy for wronged consumers, the report said.

Lawyers and witnesses must focus only on issues that are common to any smoker, avoiding those that are unique to any particular smoker. The case must focus on the conduct of the tobacco companies, Ohio County Circuit Judge Arthur Recht said.

In the retrial, witnesses can mention addiction but not the reasons people start to smoke or their ability to stop.

Lawyers for R.J. Reynolds, Philip Morris, Brown & Williamson and Lorillard can suggest that people should quit smoking to stay healthy, but no one can discuss whether smokers can quit.

Opening statements are set for Sept. 10, with six jurors and four alternates expected to sit through testimony into December.
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