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CHARLESTON, W.Va.-West Virginia will appeal the dismissal of most of its suit against the tobacco industry.

The decision handed down earlier this month dismissed 11 counts of the complaint the state filed in 1994. West Virginia's suit seeks reimbursement for health care costs incurred by the state's employees medical plan and Medicare to treat smoking-related illness.

The two remaining counts are for breach of West Virginia's consumer protection and antitrust laws. A motion to dismiss these counts is pending. In a six-page decision, state Circuit Court Judge Irene Berger said the two state agencies bringing the suit, West Virginia's Public Employees Insurance Agency and the Department of Health and Human Resources, lacked the statutory authority to maintain the action.

Because the ruling is based on a reading of specific language in West Virginia's laws, and not on the merits of the case, it should not hurt tobacco litigation filed in other states, according to Deborah McHenry, West Virginia's managing deputy attorney general. She expressed confidence the decision will be overturned on appeal as it "has no basis in the facts or the law."

Gregory Little, senior assistant general counsel for one of the defendants, New York-based Philip Morris Cos. Inc., expressed support for the decision. "We are delighted with Judge Berger's opinion, and we look forward to seeing a wave of similar dismissals of these baseless claims throughout the country in the coming months," he said in a written statement.

Meanwhile, speculation continues about a possible settlement for all tobacco litigation. Tobacco companies have denied these rumors. A spokeswoman for Philip Morris said: "There are no negotiations going on regarding a comprehensive solution of tobacco issues. But we will be willing to consider any reasonable ideas that are presented to us that are in the best interest of our shareholders."