12 Years On, Tobacco Suit Due in Court

A big tobacco case is set to start on Monday in St. Louis involving dozens of local hospitals, the nation’s biggest tobacco companies and 12 years’ worth of filings that fill 43 boxes in the city’s towering limestone courthouse.

But it has attracted little of the intense interest that once surrounded lawsuits against major cigarette producers — a sign, specialists say, that a tumultuous period of tobacco litigation is winding down after more than a decade with little financial damage to the industry.

From left, Laurence Tisch, of Loews; Geoffrey Bible, Philip Morris; Vincent Gierer, UST; Steven Goldstone, RJR Nabisco; and Nicholas Brooks, Brown & Williamson, at a 1998 House hearing.

From left, Laurence Tisch, of Loews; Geoffrey Bible, Philip Morris; Vincent Gierer, UST; Steven Goldstone, RJR Nabisco; and Nicholas Brooks, Brown & Williamson, at a 1998 House hearing.

The St. Louis lawsuit, which is seeking to recover costs for the treatment of smoking-related diseases, was filed by the hospitals in 1998. That year also was the high point of tobacco litigation, as state attorneys general struck a $206 billion deal with cigarette makers to settle lawsuits they had filed to recover costs related to smoking.

That settlement, legal specialists said, helped reshape how tobacco companies did business, like leading to an end to cigarette advertising in the United States. But more broadly, they said, the tidal wave of tobacco cases brought by smokers and others has failed to significantly weaken the industry, which continues to generate large revenues, remains a potent political force and has shifted its aggressive promotional activities overseas.

“In the large scheme of things, the impact of tobacco litigation has been minimal,” said Robert L. Rabin, a professor of law at Stanford.

Nationwide, thousands of actions brought by smokers are pending, and it will be years or decades before the last one is tried and appealed. But the St. Louis trial belongs to a genre of lawsuits — like the state attorneys generals’ case — that smoking opponents once hoped would deliver a body blow to the tobacco industry, by requiring producers to pay third parties for the toll their products had taken.

Over time, dozens of such lawsuits were filed on behalf of unions, pension funds and even foreign governments. However, only two of those cases made it to trial, specialists said. In one of those cases, cigarette makers triumphed; in the other, a verdict against them was overturned on appeal.

The St. Louis case may be the last of its kind to go to trial, said Edward J. Sweda Jr., a lawyer with the Tobacco Industry Liability Project at the Northeastern University School of Law in Boston.

Stephen D. Sugarman, a professor of law at the University of California, Berkeley, said he did not expect the St. Louis suit to be any more successful than those that had preceded it. He said that the difficulty for third-party claimants like hospitals was that they were trying to stand in the shoes of the smokers themselves.

Despite those odds, the St. Louis case is proceeding like a make-or-break trial. It is expected to last six months and, in preparation for it, court officials sent questionnaires last year to 6,000 prospective jurors. Cartons of motions and other pretrial proceedings are stacked pell-mell in the dusty, warrenlike records department at the courthouse.

Lawyers and companies involved in the case — including the Altria Group, the producer of Marlboro and other popular brands — were asked not to comment on it by the presiding Circuit Court judge, Michael P. David. But last Wednesday, lawyers representing the hospitals and cigarette makers continued to argue before Judge David over which documents could be used at the trial.

During a break, Judge David offered a reporter an observation about the gaggle of high-priced legal talent.

“At one point, I thought I could figure out who the lead attorney is, but now I’m not going to hazard a guess,” he said. “I wish they had jersey numbers.”

While tobacco producers have averted major financial damage, there are certainly no guarantees that the industry’s legal fortunes will not turn.

As of late last year, Altria, for example, faced more than 10,000 cases related to smoking, including 7,000 brought on behalf of Florida smokers, according to a company filing with the Securities and Exchange Commission. Altria and other producers also face class actions charging that they falsely claimed that “light” or “ultra-light” cigarettes lowered the health risks of smoking.

Typically, cigarette companies have defended themselves by asserting that smokers were aware of the risks of smoking but still chose to do so.

Looking back on the long tobacco battles, Matthew L. Myers, the president of the Campaign for Tobacco-Free Kids, an advocacy group in Washington, D.C., said he believed the cases brought by the state attorneys general had the most enduring impact. But he said even the intention of that deal had been watered-down because settlement-related money intended for antismoking activities was quickly diverted by financially hard-pressed states into unrelated programs like road building.

Dr. David A. Kessler, who sought to regulate cigarettes while he led the Food and Drug Administration in the 1990s, said that litigation did play a role, with scientific and public health initiatives, in changing public perceptions about smoking.

One contribution, he added, involved the release of internal company documents showing that industry executives knew of the health risks of smoking even while publicly denying them. A lingering image from the tobacco wars was the 1994 photograph of top cigarette company executives testifying before Congress that they did not believe cigarettes were addictive.

As the St. Louis case unfolds, at least one result of the last two decades of litigation against cigarette makers will continue — the mea culpa phase.

Cigarette makers will soon have to sponsor “corrective” statements on television and in newspapers to rectify previously misleading claims about the risks of smoking and second-hand smoke. The action stems from a 2006 court ruling in a lawsuit filed in 1999 by the federal government against tobacco producers, contending that producers lied for decades about smoking risks.

In that case, Federal District Judge Gladys Kessler ruled in favor of the government, holding that cigarette makers had violated civil racketeering laws. In addition to requiring cigarette companies to run factual statements, she made other rulings, including prohibiting the industry from using terms like “low-tar”, “mild” and “natural” in packaging or advertising.

A spokesman for Altria, Steven Callahan, said that the Justice Department was expected to propose a series of corrective statements in the next few weeks, and that producers like Altria would respond in March. Mr. Callahan said no timetable had been set for those statements to appear.

source: www.nytimes.com

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