A class-action lawsuit filed last week against cigarette makers on behalf of four Utahns might be superseded by one filed last month - at least for smokers younger than 19.
Provo attorney B. Seth Bailey filed the suit last month on behalf of two 18-year-olds and another juvenile, all of whom live in Utah County. The suit seeks class-action certification and could include 30,000 underage smokers throughout the state.The suit, which was assigned to 4th District Judge Ray M. Harding Jr., asks for damages of up to $75,000 per plaintiff. In all, attorneys said, the suit could involve a judgment of more than $2 billion against 19 tobacco companies.
"One of the reasons we decided to file on behalf of young people is that they are the most vulnerable," Bailey said. "I'm just trying to see these tobacco people get what they deserve, and to see these kids get what they deserve."
Seth Bailey and his father, H. Deloyd Bailey, filed the suit on behalf of teens Anna Herrera, Breeanna Herrera and Rachel Grimes. Seth Bailey said he doesn't think the trio of Salt Lake law firms that filed a similar suit Friday - one that wasn't limited to teens but instead sought damages for all Utah smokers - were aware of his lawsuit.
"It was just coincidence, except for the fact that we beat them by three weeks," Seth Bailey said. "We all want to see these suckers bite the bullet."
The question of who filed first could be significant because courts generally favor the first class-action suit if more than one is filed for the same cause. In other states, multiple class-action suits against tobacco companies have sometimes been consolidated, causing bickering among attorneys about legal strategy.
The suit filed by Bailey is unique because it alleges that tobacco companies committed civil battery by causing harmful contact with minors involving tobacco products. Bailey said the claim is strengthened by the fact that the statute of limitations for battery can't begin to run out until after a person turns 18.
The suit also alleges that tobacco companies misrepresented to Utah minors the harmful nature of tobacco products, thereby committing fraud. Other allegations include negligent misrepresentation, breach of duty to prevent minors from obtaining tobacco and marketing defective or dangerous products.
Bailey said he and his father were spurred into filing the suit when they recently saw disclosures from tobacco companies that they specifically targeted teenagers.
"We just thought that was so wrong," Bailey said. "We said we've got to try and do something about these people."
Bailey said he is not aware of any other class-action lawsuit that has limited plaintiffs to minors.
He said he and his father feel strongly that what tobacco makers have done to minors is not right, and that Utah County is a good place to try to prove it.
"If you think about it, there's not a more anti-tobacco area than Provo," he said. "(Members of the LDS Church) have been told for over 100 years that tobacco was harmful."
Stephen Bahr, a sociology professor at Brigham Young University, has conducted research on the smoking habits of minors. Data from 1994, the latest year for which he has statistics, showed that 13 percent of Utah high school seniors had used tobacco products in the 30 days preceding the survey.
By comparison, national statistics showed that nearly 30 percent of high school seniors said they used tobacco products during the previous month, Bahr said.
"The usage in Utah is probably lower than in other areas, but it's higher than some people might think," he said.
Congress is considering a $368.5 billion settlement with tobacco companies that would resolve lawsuits filed by 40 states seeking damages to cover some medical expenses of tobacco users. If OK'd, the settlement would also preclude future class-action lawsuits and bids for punitive damages from tobacco companies, Bailey said.
"What they're really doing is giving the tobacco industry government immunity," he said. "I have some serious questions about the constitutionality of the agreement."
The suit filed by the Baileys names as defendants American Tobacco, Lorillard, Phillip Morris, RJR Nabisco, R.J. Reynolds, Lig-gett Group, Hill & Knowlton, American Brands, Brown & Williamson Tobacco, Batus Holdings, United States Tobacco, UST, Loews, Brooke Group Limited and Tobacco Institute.
Several of the same companies were named as defendants in the suit filed Friday, which was assigned to 3rd District Judge Frank Noel. That suit alleges that tobacco companies raised the level of nicotine in cigarettes to get smokers addicted. The suit asks for punitive damages, a medical fund and stop smoking programs to be paid for by tobacco manufacturers.