Tobacco Companies Get Good, Bad News
A state court judge Thursday dismissed claims by the cities of Los Angeles and San Jose that the nation’s four largest cigarette companies had failed to warn nonsmokers about the dangers of secondhand smoke.
Nonetheless, San Diego Superior Court Judge Ronald S. Prager ruled that an environmental advocacy group could go to trial on a claim that the companies engaged in fraudulent and unfair business practices by denying that environmental tobacco smoke causes cancer, asthma, reproductive toxicity, sudden infant death syndrome and other maladies.
Attorneys for the cigarette companies hailed the decision as a victory. The plaintiffs acknowledged that they had lost on a major issue but maintained that they had also won an important victory because of Prager’s ruling on the fraud claim.
A leading anti-tobacco advocate--Matthew Myers, president of the Campaign for Tobacco Free Kids--said the ruling appeared to open the door to litigation that could be damaging to the cigarette companies.
Stephen J. Krigbaum, Philip Morris Cos.’ associate general counsel, praised the judge’s conclusion that the tobacco companies had no duty to warn consumers about the dangers of cigarette smoke under Proposition 65--one of the broadest chemical hazard warning laws in the nation. Prager said his ruling was based on the fact that it was undisputed that the companies had a “wholesale lack of control over the exposure of ‘secondhand smoke’ to non-consumers” of cigarettes.
Because Prager knocked out four of the five claims in the suit, “the heart of the case is gone,” Krigbaum said.
Roger L. Carrick, special counsel to Los Angeles City Atty. James K. Hahn who filed the suit on behalf of California taxpayers, said that he was disappointed at Prager’s dismissal of the claims based on Proposition 65 and that he would urge Hahn to appeal.
However, Carrick said he was delighted that his other client, the American Environmental Safety Institute, would be permitted to go to trial in June on the remaining claim that the cigarette companies engaged in unlawful business practices by denying that secondhand smoke is hazardous.
“This is a major breakthrough,” said Deborah Sivas, president of the institute. “We will force the tobacco companies to go to trial to defend their wanton disregard for pregnant women, children with asthma, heart disease victims and others whose pain, suffering and even death has occurred as a result of their exposure to environmental tobacco smoke.”
Sivas said the plaintiffs would “prove at trial that the tobacco companies paid top-flight scientists to discover that environmental tobacco smoke causes these diseases, accepted their scientific reports as fact, and then proceeded to tell no one about the adverse health implications of this research--even to the point of denying the very facts they paid to develop.”
In recent years, the cigarette companies have prevailed in two damage suits filed in Indiana and Mississippi by individuals alleging that they were harmed by secondhand smoke. However, in 1998, the companies agreed to a $300-million settlement with a group of flight attendants who charged that their health was injured by smoke in airline cabins.
Prager, who has been presiding over major tobacco litigation in California, made a ruling that could be particularly hazardous to the cigarette companies, according to Carrick and Myers. The judge rejected the companies’ contention that summary judgment should be granted on the entire suit because such broad-gauged suits were barred as a consequence of the December 1998 national tobacco settlement.
The companies agreed to pay 46 states, including California, $206 billion over 25 years and to accept restrictions on their marketing practices. (Four other states settled earlier for $40 billion).
The judge said the language of the 1998 agreement “seemingly precludes” the collective claims filed by the plaintiffs for conduct that occurred before the settlement was finalized--Dec. 9, 1998.
However, Prager said the settlement “also expressly excludes” certain types of claims based on cigarette company conduct occurring after the settlement. Because the allegations in this case include conduct that occurred after Dec. 9, 1998, and because the plaintiffs are seeking to change company practices rather than obtain damages, the judge said the case could go forward.
Prager’s ruling is the first judicial interpretation of the extent to which the national settlement bars future lawsuits by government agencies or others seeking to sue on behalf of the public.
“The decision clearly opens the door for the type of litigation which the industry has long feared--a determination of their wrongdoing on important health issues where the cigarette companies can’t blame an individual smoker,” Myers said.
“As long as the relief sought is something other than a state or local government seeking reimbursement for medical expenses related to smoking, this ruling opens the door for government agencies and others to sue the tobacco industry for ongoing wrongdoing,” Myers said.
Carrick said that if the plaintiffs prevail, they want the companies to launch a massive media campaign warning about the hazards of secondhand smoke. Late last year, Judge Prager denied a preliminary injunction sought by the plaintiffs asking that the companies be immediately ordered to launch such a media campaign.
At the time, the judge said the plaintiffs had not shown that the public would be irreparably harmed unless such a campaign were launched immediately. The judge said that the state health department was already conducting a media campaign on the dangers of secondhand smoke and that “the public is presently being informed of the very dangers” described in the plaintiffs’ case.
Besides Philip Morris, defendants in the case include R.J. Reynolds Tobacco Holdings Inc., British American Tobacco’s Brown & Williamson unit and Loews Corp.’s Lorillard Tobacco unit.
