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Litigation: a tobacco lawyer's view

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Tobacco was on the menu in Geneva, Switzerland last October, when around 30 high powered lawyers gathered at the Hotel Metropole, not far from the headquarters of the World Health Organization. It was the monthly meeting of the Association of International Business Lawyers, and the speaker was Bruce Ventura of the US (now Japanese owned) tobacco giant RJ Reynolds. His topic was “Smoking and health litigation”, a review of the industry's legal headaches past and present.

After giving a brief history of US tobacco litigation, Mr Ventura reviewed the main categories of litigation: individual cases, class actions, and health care cost recovery actions. He saw three distinct waves of litigation, from personal injury cases up to the late 1960s, through product liability and “failure to warn” cases in the decade beginning in the early 1980s, to the class actions and health care recovery actions of today. As he saw it, the difficulty in the first phase of proving causation, and the reluctance of jurors to make awards for injuries that were the result of an individual's behaviour, led plaintiffs' lawyers to concentrate in the second phase on focusing jurors' attention on the industry's behaviour. Summarising the first two phases of individual cases as industry success, he repeated the boast that despite some adverse trial judgements, the industry had never lost a case on appeal, nor had “ever paid a centime” in damages.

With regard to the successful US flight attendants' case, Mr Ventura said the industry had settled to encourage a congressional deal, but this was now seen as a mistake. Similarly, the industry had offered a $350 billion settlement deal to Congress as a “Stop the madness!” tactic, but the counter proposal by Congress of a $500 billion deal and limited pre-emption of future liability had been the cause of the settlement's failure. The industry had settled the cases brought by state attorneys general, however, for “political and stock price” reasons. And politics featured large in the rest of the talk: the US federal government's suit claiming $25 billion annual health care costs was “highly political … probably unconstitutional and … an attempt to avoid congressional oversight and approval”.

Speaking of the class action suits started in other countries around the world, the industry saw these as “copy cat” efforts to emulate what Mr Ventura called the US “El Dorado”. But if any of the foreign health care recovery suits succeeded, he told his audience to watch out for “the deluge”. In summary, the industry sees the situation as politicised and volatile, with the US government's suit likely to encourage more private suits. If a single multi-billion dollar suit succeeded, said Mr Ventura, it could bankrupt the tobacco industry. Doubtless, many readers of Tobacco Control would wish every success to all those working on such suits.

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