A group of patients suffering from smoking-related diseases is dropping its attempt to get a share of Tennessee's multibillion-dollar tobacco settlement.

Instead, the patients, represented by Knoxville attorney David Lee and Nashville attorney Dixie Cooper, have decided to sue the tobacco companies directly for an additional settlement. The change in strategy recognizes the fact that states are largely ''immune'' from being sued under the 11th Amendment to the U.S. Constitution. But that doesn't mean that Tennessee ultimately will not have to share the proceeds of its tobacco settlement, which is expected to total $4.8 billion over 25 years. A separate lawsuit challenging the state's tobacco settlement on behalf of low-income and disabled smokers has been appealed to the 6th Circuit Court of Appeals in Cincinnati after it was dismissed by U.S. District Court in Nashville. ''We're still confident the court of appeals will overturn the trial court's dismissal and … send it back,'' said Connecticut lawyer Antonio Ponvert, one of several lawyers handling the case. That's because, under federal Medicaid law, when a state collects damages, ''it must give a portion to the injured smoker,'' he said. The tobacco settlement agreement was signed in 1998 by 46 state attorneys general, including Tennessee's, to reimburse states for the medical costs associated with smoking. Settlement funds have been used for a variety of purposes. Tennessee, for example, will spend nearly $560 million of its settlement funds to balance the state budget this year. Last year in separate lawsuits filed in state and federal court, Lee and Cooper sued to get a share of the state's tobacco settlement for their clients. Now they have launched a new strategy that in a sense repeats the efforts of the attorneys general — suing the tobacco companies directly for an additional settlement. ''This should be a win-win,'' Lee said. ''The state keeps its (settlement) money, and the smokers get money from the tobacco industry. It could effectively double the size of the state settlement.'' On Monday, Lee filed an amended complaint in Davidson County Circuit Court that dropped the state as a defendant, leaving only the tobacco companies. The next step, said Cooper, is to ask Circuit Court Judge Hamilton Gayden to postpone consideration of the state complaint, so the lawyers can concentrate their attention on the federal case. The legal team was bolstered recently by the addition of prestigious Birmingham, Ala., attorney Dennis Pantazis, who specializes in class-action cases. Lee said he hopes Pantazis can help win class action status for the federal case, from which the state also may be dropped as a defendant. The strategy, he said, depends on the ''made whole'' doctrine accepted by the Tennessee Supreme Court in a 1999 case. According to that doctrine, the tobacco industry should not be able to reimburse states for the medical costs associated with smoking, ''without money going to the people who were injured,'' Cooper said. Cooper said she hopes a hearing on the merits of the case could be held within three to six months. Time is of the essence, she said, because many of her clients are ''very, very sick (and) a lot of people are dying.'' One of Cooper's clients is unhappy with the decision to drop the state as a defendant. ''The government is behind it just as much as anybody,'' said Charles Temple, who filed an initial, handwritten complaint in federal court in 1999 to challenge the state's tobacco settlement. ''They depended on the big taxes coming from (sales of tobacco products).'' Cooper said she understands the frustrations expressed by Temple, a 70-year-old former chain-smoker from Lebanon who is dying from end-stage lung disease. The tobacco settlement agreement, she said, ''deliberately left out the injured people and has done nothing to try to get them compensated.'' ''I'm trying to do the best I can to get people like Charles Temple compensated for their injuries,'' Cooper said. ''There is no point in going to court against the state alone. If you know you're going to get knocked down, you have to approach it from a different direction.'' John A. McReynolds Jr., a Knoxville lawyer representing the Liggett Group Inc., one of the defendants, declined to comment about Lee and Cooper's new strategy, and representatives of the state attorney general's office could not be reached for comment yesterday. Ponvert, who is challenging tobacco settlements in 12 states, including Tennessee, said he could not predict whether Lee and Cooper will be successful, but he agreed that the immunity defense is a powerful obstacle to pursuing claims on behalf of smokers. All but one of his cases have been dismissed by lower court judges because of the immunity argument. That has not dissuaded him, however. Ponvert said he and his colleagues have appeals pending in the 2nd Circuit Court of Appeals in New York, the 11th Circuit Court of Appeals in Atlanta and — in the Tennessee case — the 6th Circuit Court of Appeals in Cincinnati.

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