FOR IMMEDIATE RELEASE  

Contact: Edward L. Sweda
 Richard A. Daynard
(617) 373-2026

e-mail to media[at]tplp.org (use @sign)

September 14, 2006

MAJOR LITIGATION SETBACKS FOR TOBACCO INDUSTRY IN THE UNITED STATES
TPLP PLANS LITIGATION CONFERENCE IN MIAMI.

            During the last four months, there have been several court decisions that have bolstered the prospects of plaintiffs who have sued tobacco companies.

May 18.  Haglund v. Philip Morris, 847 N.E. 2d 315 (pdf).  The Massachusetts Supreme Judicial Court unanimously rejected the tobacco industry’s blame-the-smoker-for-smoking defense.  This is the first court opinion in the country that has squarely held that, as a matter of law – except in extremely rare and unlikely cases – the so-called “personal choice” defense is unavailable to the tobacco companies.  Thus, a consumer can proceed with a strict liability tobacco lawsuit in Massachusetts even while knowing that there is something wrong with the product. All the consumer has to prove is that it was possible to make a less dangerous product (e.g., one without nicotine, which would not be addictive and hence not smoked in quantities large enough to cause disease), and that the product caused the consumer’s illness.

            July 6.  Engle v. Liggett Group, 2006 Fla. LEXIS 1480 (pdf).  The Florida Supreme Court upheld findings that cigarette manufacturers were negligent, committed fraud and fraudulent concealment and that their products are defective, unreasonably dangerous, addictive, and the cause of 16 major diseases.  The res judicata effect of the Florida Supreme Court opinion will carry over to individual claims for compensatory and punitive damages by upwards of 100,000 class members, meaning that these facts will be considered established in their individual cases.  See http://tobacco.neu.edu/litigation/cases/pressreleases/ENGLEVFLSUPCT2006.htm

            July 21.  Arnitz v. Philip Morris, 933 So. 2d 693 (pdf).  See http://tobacco.neu.edu/litigation/cases/pressreleases/Arnitz.htm  The Court of Appeal of Florida, Second District upheld a plaintiff verdict, ruling that a plaintiff is allowed to raise the issue of comparative negligence as a tactical matter in the absence of the tobacco company defendant’s pleading of comparative negligence as an affirmative defense.  This permits juries to rule for plaintiffs even if the jurors also think (as they often do) that the plaintiffs were also at fault.

            August 9.  Aspinall v. Philip Morris.  A Massachusetts Superior Court judge rejected Philip Morris’ motion for summary judgment in a “light” cigarette class action.  The judge rejects the argument that the Federal Cigarette Labeling Act preempts the plaintiffs’ claims and disagreed with the Illinois Supreme Court’s majority opinion in Price v. Philip Morris on the question of whether the Federal Trade Commission’s use of consent orders constitutes “specific authorization” of industry conduct by a federal agency, thus shielding the industry from liability under state consumer protection statutes.  Since the Massachusetts Supreme Judicial Court in 2004 had greenlighted the case on the remaining issues, the case can now proceed to trial.

            August 17.  United States v. Philip Morris USA, Inc., 2006 U.S. Dist. LEXIS 61412 and 61216.  See http://tobacco.neu.edu/litigation/cases/DOJ/kessler_decision_0806.htm  U.S. District Court Judge Gladys Kessler ruled that the Government had proven its case and found that the tobacco company defendants have violated the Racketeer Influenced Corrupt Organizations Act (RICO).  The Court orders specific remedies; see http://coop.dcd.uscourts.gov/99-2496-082006b.pdf . 

            August 22.  Thompson v. Brown & Williamson Tobacco Co.  The Missouri Court of Appeals, Western District upheld a plaintiff verdict and rejected all appellate arguments made by the tobacco company defendants, including the contention that Congress has preempted state law claims, that “common knowledge” of the dangers of smoking obviated the defendants’ duty to warn in a negligence claim and that a defendant can withdraw an affirmative defense of comparative negligence and prevent the plaintiff from seeking a comparative fault instruction, even when the evidence presented at trial supported such an instruction.

Industry Wearing Rose Colored Glasses

            Regarding tobacco litigation, certain tobacco-friendly stock analysts have focused virtually exclusively on whether and when Altria will spin off Kraft Foods and have disregarded or downplayed legal developments that have gone against tobacco’s interests.  For example, David J. Adelman of Morgan Stanley boasted on September 5 that “major industry victories in the large-scale threats” have “clearly positioned the US tobacco industry in its strongest legal position in at least the last decade.”  Yet Adelman is apparently unaware of the August 9 pro-plaintiff ruling in the Aspinall case, claiming in his September 5 report that “[t]here has been little recent activity in this case.” Adelman described the Illinois Supreme Court’s ruling in Price as one that the Aspinall plaintiffs “presumably found fairly discouraging for the long-term prospects of their claim” when, in fact, the Massachusetts Superior Court judge specifically rejected the reasoning of the Price majority opinion and denied Philip Morris’ motion for summary judgment.   

            They have also portrayed the Engle and Department of Justice rulings as victories for the tobacco industry. However, reality is starkly different.  The Florida Supreme Court’s opinion reversed the vast bulk of the May 2003 opinion from the Third District Court of Appeal (which actually was a total victory for the tobacco company defendants), reinstating most of the jury’s verdicts against the tobacco industry.    Judge Gladys Kessler’s comprehensive, 1653-page opinion found that the Government had successfully proven its case that the tobacco company defendants had violated RICO.  These companies are now adjudicated racketeers.

            The latest proof that these companies have not transformed themselves into responsible corporate citizens – as they have claimed as part of a multi-million-dollar public relations campaign -- came on August 31 when the tobacco company defendants moved to have Judge Kessler not apply her ban on false descriptors such as “light” and ‘Low Tar” and her requirement of corrective statements to sales outside the United States.  As the Washington Post in its September 5 editorial (“Big Tobacco, Lawless As Ever,”) put it: “If we can’t continue to defraud Americans into killing themselves, they effectively asked, can we at least keep suggesting to billions of people abroad that some cigarettes are safer than others?”

            In light of these pro-plaintiff legal developments, the Tobacco Products Liability Project (TPLP), a project of the Public Health Advocacy Institute based at Northeastern University School of Law in Boston, plans to conduct a litigation conference in February 2007 in Miami, Florida.

-- 30 --

The Tobacco Products Liability Project (TPLP) is a project of the Public Health Advocacy Institute assisting attorneys involved in tobacco-related litigation. The Public Health Advocacy Institute is committed to advocacy and research to further law in common cause with public health. PHAI is a non-profit corporation located at Northeastern University School of Law in Boston, Massachusetts. More information about PHAI is available at www.phaionline.org.