Legal Problems With Proposed Tobacco Deal [11/18-5]

Below are excerpts from an article in the Legal Times by Alan B. Morrison, a noted and well-respected consumer activist, about some of the many legal problems in the proposed tobacco deal:

What [Attorney General Mike Moore and other deal supporters] don't like to say is that in exchange for the measures that they hope will stop teen-age smoking, they are willing to make a trade-off that will do enormous damage to the civil justice system.

Naturally, the lengthy legal documents don't talk about trade-offs or specifically identify the losers and the winners under the tobacco deal. But there is no doubt who falls into which category.

Just listen to the supporters of the deal, such as the Center for Tobacco Free Kids. Aside from the $155 billion to $165 billion that will go to the state treasuries, almost all the benefits they mention are for preventing future tobacco use and, to a lesser extent, smoking cessation.

The rights of current smokers are sacrificed in the hope of saving future generations. It is true that individual smokers retain the right to sue. But I also have the "right" to try out for the Olympic pole vaulting championships in the year 2000. The chance of any of us succeeding is minuscule. In my case it is because of my innate inabilities.

For tobacco victims, the cause is the significant burden that the deals add to the already formidable task of convincing a jury that a smoker deserves compensation for what many people see as a voluntary act, or that a nonsmoker's illness was actually caused by smoke from the cigarettes and cigars of others.

As the American Medical Association--no great friend of the civil justice system--concluded in its July 31 report about the global deal, these new obstacles "effectively eliminate the most significant deterrent effects from civil liability, and hence any future incentive for the industry to enter into further agreements expanding the regulatory regime that applies to tobacco."

The No. 1 barrier is the federal repeal of the state-law right to sue for punitive damages. Given the industry's massive cover-up of its knowledge of the deadly effects of tobacco and its addictiveness, punitive damages would almost certainly have been awarded in the state attorney general cases and in the private class actions.

Because the industry also knew punitive damages would be awarded in many thousands of future cases brought by individuals, it agreed to accept regulation by the Food and Drug Administration, and to change its advertising and promotional practices directed at young people, but only if Congress ended the threat of punitive damages.

Eliminating punitive damages does not simply lower the amount that may have to be paid in each case, but it also significantly reduces the likelihood of industry ever having to pay anything. Tobacco cases are always expensive, and industry always fights hard, with highly skilled counsel and virtually limitless bankrolls. Without the possibility of punitive damages, most lawyers will be unwilling to represent smokers against such a formidable opponent.

Another new litigation barrier is truly a stroke of public relations genius by the industry. One reason that tobacco companies have avoided both regulation and paying for the deaths that they have caused is that they have kept the most incriminating evidence secret. If the settlement goes ahead, they can continue to assert their expansive, if not entirely bogus, claims of privilege.

In fact, the deal makes the situation worse for most victims because it establishes a central court, consisting of three federal judges, who will decide all claims of privilege, once and for all. This scheme, which is being sold as a benefit, hurts victims who will have to go to an unfamiliar and quite likely unsympathetic court to get disputed documents.

They will be required to wait in line (perhaps until their trial is over) for any documents they want that have not yet been processed by the special court. And if someone has already been denied access to those items, that ends the matter, even if the new requester has evidence and arguments that were never raised the first time.

Finally, class actions and all other forms of aggregation that make cases easier and less expensive for plaintiffs are barred by the deal. These "anti-efficiency" rules would apply in every court in the country--federal and state. Such a massive intrusion on the rights of states to run their own court systems is unprecedented in American legal history.

This deal will force those who are already tobacco's victims to pay for the future health of others, both by having their money taken from their pockets today when the industry raises prices to pay for the deal, and then by denying them the right to sue the industry for damages when the inevitable medical bills, lost wages, and human suffering arise.

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