Bill Would Let State Sue Over Tobacco’s Toll : Health care: Legislation would permit California to try to recover the costs of treating smoking-related diseases. Currently, cigarette companies are protected.

Following the lead of Florida and several other states, two lawmakers introduced a bill Thursday that would permit California to sue cigarette companies to recoup hundreds of millions of dollars in health care costs for tobacco-caused disease.

The bill by Assemblyman Richard Katz (D-Sylmar) and state Sen. Diane Watson (D-Los Angeles) would remove a specific exemption written into state law that bars most lawsuits against tobacco companies.

The California civil code says manufacturers cannot be held liable for products that are inherently unsafe, such as guns, and are “common consumer product(s) intended for personal consumption, such as sugar, castor oil, alcohol, tobacco and butter.”

Because tobacco has a special status in California law, the venue for the nation’s high-profile tobacco litigation is elsewhere, such as Mississippi, West Virginia and Louisiana.

Earlier this week, Florida Gov. Lawton Chiles sued cigarette manufacturers to recover $1.43 billion in state money spent on treating indigent patients who have diseases caused by smoking. Florida brought the suit after its Legislature approved a bill permitting such litigation.

Katz declared at a news conference Thursday that “it’s time the tobacco industry (take) responsibility for its product” in California, noting that smoking-related health problems such as heart attacks, strokes, cancer and emphysema are “taking a huge toll” of the economy.

Steve Telliano, spokesman for Atty. Gen. Dan Lungren, who would bring such a suit on behalf of the state, said federal law may bar states from suing tobacco companies, though other states have managed to press actions despite federal restrictions. Telliano said Lungren believes that a better approach would be to add a surcharge to cigarettes to cover health costs.

In testimony last year before the Legislature, UC San Francisco professor Dorothy Rice estimated that the state spent $632 million in Medi-Cal money on tobacco-related illnesses in 1993.

Overall, she said, tobacco-caused illnesses cost Californians $10 billion in 1993. The bill, AB 994, also would permit health insurers and medical groups to sue tobacco companies to recoup money they have spent caring for people made ill by smoking or chewing tobacco.

The tobacco industry’s protection against liability suits dates back to one of Sacramento’s classic back-room maneuvers, the Napkin Deal, so named because it was memorialized on a napkin at Frank Fat’s, a restaurant near the Capitol frequented by lawmakers. A poster-size reproduction of the signed napkin hangs at the watering hole.

The pact was struck at the end of the 1987 session, when lobbyists for lawyers, doctors, the tobacco industry and several others involved in ongoing disputes agreed to a five-year truce on legislation or initiatives related to medical malpractice, no-fault auto insurance, product liability and punitive damages.

State Sen. Bill Lockyer, now Senate president pro tem, helped mediate the deal and put pen to linen napkin. He and Assembly Speaker Willie Brown are signatories. Brown said Thursday that he is undecided whether the tobacco protection should be repealed. Lockyer said he probably would support repeal. The tobacco industry is a major political campaign contributor--but so are trial lawyers and the medical community, both of which would like to see the industry’s protection repealed.

Bills to abolish the protection have died every year since 1988. Katz said public opinion is growing against tobacco, and pointed to last year’s landslide defeat of Proposition 188, the initiative to weaken smoking restrictions that was promoted by cigarette manufacturers.

If the bill fails again this year, Katz said, “We are actively going to look at an initiative.”

The California Medical Assn., among the most powerful lobbies in Sacramento, signed on to the 1987 deal but is backing Katz’s effort to repeal the exemption, as are California chapters of the American Heart Assn., the American Lung Assn. and the American Cancer Society.