The reality is that tobacco litigation has settled down into a kind of stubborn trench warfare. Sometimes plaintiffs win, and sometimes the companies win, as they did earlier this month in Akron, Ohio, when a federal jury decided that several tobacco giants did not have to repay dozens of union health plans in the state for smoking-related illnesses.
"This has become a volatile area of the law," says Cohen. "Reasonable minds differ because of the complexity of the issues, and the result is a lot of indecision and contradictory outcomes." Certainty, however, is what the tobacco industry has always sought: initially by successfully squelching or winning every smoking lawsuit for decades, and lately by trying to strike a nationwide deal that included strict limits on lawsuits. Congress did not buy the nationwide deal, and the recent arrangement with 46 state attorneys general does not cover individual lawsuits. That leaves tobacco companies where they don't want to be: exposed.