Panel Votes to End Tobacco Liability Shield

The tobacco industry would lose a nearly 10-year-old shield against product liability lawsuits if legislation approved Tuesday by the Senate Judiciary Committee becomes law.

By a 6-1 vote, the panel approved a bill by Sen. Quentin Kopp (I-San Francisco) that would drop tobacco from a statute that bars personal injury suits targeting consumer products that are commonly known to be inherently unsafe.

The committee also approved, by a 6-2 vote, a bill by Sen. Byron Sher (D-Stanford) that would punch some holes in the tobacco shield and stipulate that the state could sue tobacco companies to recover the cost of treating people for smoking-related illnesses.

The exemption for tobacco and such products as butter, alcohol, sugar and castor oil was part of a broader tort-reform package that was drafted late in the Legislature’s 1987 session.

Some of the negotiations on the package were conducted at night at Frank Fat’s restaurant near the Capitol and resulted in what is now referred to as “the napkin deal,” notes written on a napkin about what various interests would accept.

The tobacco exemption has become the most controversial portion of that package because of new information about the addictive properties of tobacco products and tactics used by tobacco companies.

“At the time, it was not anticipated that California courts would interpret this provision so broadly,” said Dr. Rolland Lowe, president of the California Medical Assn., a supporter of the Kopp bill.

“We’ve also learned much about the addictive nature of tobacco and tobacco companies’ intent to mislead the public,” he added.

But Michael Carpenter of the Assn. for California Tort Reform said Kopp’s bill would “abolish the common-sense legal principle that people who voluntarily use products with inherent risks they are aware of should not be able to file lawsuits.”

Sher’s bill would stipulate that the 1987 law did not cover people who did not voluntarily consume tobacco--breathers of secondhand smoke, for example--or people who were victims of fraud, misrepresentation or an industry conspiracy.

It would also allow public agencies to sue to recover the cost of treating uninsured residents who suffered smoking-related illnesses.

Atty. Gen. Dan Lungren has refused to join 22 other states in suing the tobacco industry to recover health care costs, claiming the suit would be unsuccessful because of the 1987 statute.

But he announced a tentative agreement last week under which California would share in the settlement of the other states’ lawsuits against Liggett Tobacco Co.

Democrats contended that Lungren has used the 1987 statute as an excuse to avoid suing tobacco companies that have made large campaign contributions to Republican candidates.

Senate leader Bill Lockyer (D-Hayward) suggested that Liggett agreed to settle with Lungren because the tobacco company knew it was liable under current California law.

Democrats have promised to push through legislation to clarify that the state can sue to recover health care costs from tobacco companies.