The nation's largest consolidation of smokers suing cigarette makers -- roughly 1,100 plaintiffs -- can address the need for punitive damages in the first phase of a two-part trial plan.

The tobacco case was supposed to follow what some call the asbestos litigation model: Liability for all defendants is addressed en masse in the first trial phase. That jury will decide what, if any alleged acts the defendant companies are responsible for, and if that jury decides the companies are liable for punitive damages, it will set a punitive damage multiplier. In the second phase of the trial, when plaintiffs take their specific claims to a new jury, any economic damages awarded then would be multiplied by the phase one figure to reach total damages for a plaintiff.

Ohio County Circuit Judge Arthur M. Recht has been overseeing the case, but after a controversial 2003 U.S. Supreme Court opinion, he threw out the West Virginia case's original trial plan. Recht spent more than a year determining whether State Farm Mutual Auto Insurance Co. v. Campbell prevented the plaintiffs from pursuing punitive damages against all defendants at once. In that case, the Supreme Court said a plaintiff's claim for punitive damages must bear a relationship to a specific defendant.

Recht said that meant a phase one trial could not include punitive damages, but the state Supreme Court disagreed in a unanimous opinion written by Justice Elliott E. "Spike" Maynard.

The court said the State Farm case does not preclude the smokers from proceeding with a bifurcated trial plan, a decision that also revalidates the asbestos litigation model.

"After carefully considering the parties' arguments and the Supreme Court's decision in Campbell, this Court finds that Campbell, which did not involve mass tort litigation, does not per se preclude the circuit court's original trial plan," the opinion states. "... Our conclusion in this case simply is, first, we find nothing in Campbell that mandates a re-examination of our existing system of mass tort litigation. Second, we find nothing in Campbell that per se precludes a bifurcated trial plan in which a punitive damages multiplier is established prior to the determination of individual compensatory damages. Beyond this, we leave more specific issues for another day."

Recht said he will convene the parties in late January to discuss whether the original case management order is satisfactory or a new one needs to be created. Nothing in the Supreme Court's opinion precludes them from using the original trial plan, he said.

"They gave me direction to do what I think is right. ... I now want to move this case so (phase one) is finished in 2006," Recht told The State Journal, explaining that flood litigation will begin in his court the following year.