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In Re: Tobacco Litigation (Individual Personal Injury Cases). Plaintiffs' Response to Certain Defendants' Motion for Partial Judgment on the Pleadings. Cause No. 00-C-5000

Date: 31 May 2000 (est.)
Length: 5 pages
98289281-98289285
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Fields

Author
Calwell, S.
Carriger, D.
Skaggs, J.H.
W, D.M.
Type
PLEA, PLEADING
Area
ANDERSON,TOM/OFFICE
Recipient
Kaufman
Recht
Recipient (Organization)
Wv Circuit Court Oh County
Named Person
Falise
Weinstein
Document File
98288940/98289531/West Virginia - Mlp Documents Provided by Thompson Coburn
Date Loaded
10 Apr 2002
Litigation
Feda/Produced
Characteristic
EXTR, EXTRA
Site
N173
Request
R1-080
Master ID
98288941/9530

Related Documents:
Author (Organization)
Law Offices of Stuart Calwell
UCSF Legacy ID
vem53c00

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Page 1: vem53c00
05/31/00 WED 18:29 FAX 304 345.5989 9 AM . „uqaqqooaa 7-92[ Y.GG7/GUd ~-b~~012 405 Capitol Street, Suite 607 Charleston, West Virginia 25301 Counsel for Plaintiffs 304/343-4323 Kenneth B. MoClain, Esq. HUMPHREY PARRIN67ON & MCCLAIN . 221 West LexinAton, Su te 400 P.O. Box 900 Independence, MO 64051-0900 816/836-5050
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9008 *JU43443664 1-822 Y,U03/U09 i_tltc IN 'riiE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA - In Re: TOBACCO LITIGATION CAUSE No. 00-C-5000 (INDIVIDUAL PERSONAL INJURY CASES) (Judge Recht and Judge Kaufman) PLAIN.rIFpS' RESPONSE TO CERTAIN DEFENDANTS' NIO IO FORQARTIAL JUDGEMENT ON THr; PLEADINGS 0 05/31/00 WED 16:28 FAX 304 345,5989 A= The Plaintiffs respond to the motion to dismiss filed by certain of the defendants as follows: 1. The defendants' motion raises client-specific issues, which by previous orders of the Court should be left to the later phases of these co~solidated cases. 2. The defendants' motion does not state its grounds in sufficient detail to allow the plaintiffs' a reasonable opportunity to respond. The motion is accompanied by a conclusory brief, and makes limited ra:ferences to the specific complaints. The complaints are l6:ngthy and detailed, and contain innumerable allegations of facts. The moxion does not address with specificity the allegations contained in the complaints. Its states in the most general term a blanket assertion that a signifioant portion of the plaintiffs' claims should be dismissed, with no supporting argument.
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AG&M . . fa 011 *.ucoc.~eoe4 i-92G Y-096/UU9 r-oGo IN THE CIRCUIT COURT OF OHIO COUNTY, WESt VIRGINIA tN RE: TOBACCO CASES CIVIL ACTION NO. 00-C•5000 BLAIN V. R.J. REYNOLDS TOBACCO COMPANY, ET AL., CA. NO. 99-C-8M1 HUFFMAN V. PHILIP M+CiRRIS; INC.. ET AL., C.A. NO.98-C-2-: 6 JIVIDEN V. THE AMERICAN TOBACCO COMPANY. ET AL. C.A. NO. 98-C-C-278 MORRIS V. R.J. REYNOLpS TOBACCO COMPANY, ET AL. CA. NO. 98-C-492 NEWKIRK V. R.J. REYNt)LOS TOBACCO COMPANY C.A. N0. 98-C-t699 CERTIFlCATE OF SngVICE !, John FI. Skaggs, do certify that service of the foregoing `PLA1NTfpFS' RESPOJJS: Tf~ CERTAIN 01=F DA VTS'MOTION FOR_PARTIAL JUOGEMENT ON THE PLE lNGS;_ has been made upon th.: parties via facsimile transmission and by placing a true copy thereof in the re gular ccurse of the United States mail, postage prepaid on the 31 si da y' o'' May, 2000, addressed as follows: Pamela Kandzari, Esq. ALLEN GUTHRIE MCHUGH 7300-Bank One Center PC Box 3394 Charleston, WV 25333-3394 05/31/00 WED 16:29 FAX 304 345 5989 ~ Stuart Caiwell I?sq 're 36r/0 John H. Skaggs. Esquire SB#3432 TMe LAW OFFICEEi OF STUART CALWELL
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AG&M T~V4J44ACi3 Q 009 I-tltt r.OV4IUW r°n(y 3. Tnis.Court should follow the lead of Judge Weinstein In the recent decision of Pelise vs 1he America,g Tobacco Comoany Pt al -•F. Supp.-., 2000WL 534651 fE.D.N.Y., May 1, 2000) in which the court ruh:d that allegations of fraud directed at a class could be proven as to the class members generally, without proving individual reliance. Specifically, the court stated: Where, however, the fraudulent scheme is targeted broadly at a large proportion of the American public the requisite showing of reliance is less demanding. Such sophisticated, broad-based fraudulent schemes by their very nature are likely to be desigr5ed to distort the entire body of public knowledge rather than r,o individually mislead millions of people. Form the perspective of the fraudulent actors, clear efficiencies are gained by co-opting the media and other outlets of information as unwitting tools for the pervasive scheme. Fali,ee va. The pmeCican TQbacco Company, e al. Supra., at page 15. (Attached hereto as exhibit A.) 4. While .Fa'lse was addressing a civil-RICO allegation, the same rationale applies here. It would allow the defendant the benefit of the sche'ne to allow these claims to be dismissed because any 05/31/00 WED 18:28 FAX 3044345 5989 given incividual fails to state with particularity on what date he saws or read which of the hundreds and thousands of misleading and falso statements made by the tobacco industry. The rt:asonable response is that each plaintiff was a member of the target audience and responded as the Industry and its advertising experts roxpected--they consumed the tobacco industry's products. The alledation of the wrongful conduct in the form of the
Page 5: vem53c00
Q 010 +cu4a447564 rb2d r.IlWiuus r-cc. misleading advertising and fraudulent concealment, directed af-~F- class of which the plaintiff is a member, is more than adequate notice of the claim. 5. The motion to dismiss should be denied following the rationale of FaI' e. In the a)ternative, ihe defendants' motion raises significant issues fo• the individual cases that should be deferred to the later pnases o'F these cases. WHEREFQRIc, for-the above stated reasons, the plaintiffs pray that the, motiun and all relief sought therein be denied, or, in the alternative, that rhe consideration of the motion be deferred to the individual phases of the proceedings. T e Plaintiffs. By counsel. 05/31/00 WED 16:28 FAX 304 045._5889 AGM 'I'HE LAW UFFIC4'S OF Sl`U{1RT CALWELL, PLLC. Stuart Calwelt, Esq. John H, Skaggs, Eaq. David Carris3er, Esc, Suite 607 405 Capitol Street Charleston, West Virginia 25327 (304) 343-4323 f30q.)• 34a-,3684 facsimile gq~ell ca1tVBIII~W.~;~ . iskaqas calmrelllaw.cc~_ . ~eerrigerCdealwelllaw.eo n 3

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