Global Tobacco Litigation: Key Cases and Legal Strategies Reviewed, Slides of Law

Download Global Tobacco Litigation: Key Cases and Legal Strategies Reviewed and more Slides Law in PDF only on Docsity! Towards Health with a Justice oT — Docsity.com Overview 1. Introduction 2. Fifty years in the courts: brief history in USA. 3. Litigation: the global experience 4. Starting point: industry documents 5. Public inquiries as an alternative 6. Choices and decisions: a litigation topography 7. Litigation: lessons learned 8. Steps forward 9. Conclusion Docsity.com 2. 50 years in the courts (US) Scorching the Earth Key to the tobacco industry’s success: a “scorched earth” litigation strategy… “[T]he aggressive posture we have taken regarding depositions and discovery in general continues to make these cases extremely burdensome and expensive for plaintiffs’ lawyers, particularly sole practitioners. To paraphrase General Patton, the way we won these cases was not by spending all of [R.J. Reynolds’] money, but by making that other son of a bitch spend all of his.” Memorandum by R. J. Reynolds’ attorney J. Michael Jordan, April 29, 1988, quoted in Haines v. Liggett Group, Inc., 814 F. Supp. 414, 421 (D.N.J. 1993). Docsity.com 2. 50 years in the courts (US) Crack in the wall Cipollone v. Liggett Group, Inc. 683 F. Supp. 1487 (D.N.J. 1988); 505 U.S. 504 (1992). “…[w]ho are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity!” Haines v. Liggett Group, Inc 140 F.R.D. 681, 683 (D.N.J. 1992); 975 F. 2d 81 (3rd Cir. 1992) 20 Docsity.com 2. 50 years in the courts (US) New Wave: Early 1990s onwards 1. an avalanche of revelations about tobacco company misconduct 2. the emergence of new forms of litigation that allowed plaintiffs to amass resources and expertise on a scale sufficient to challenge the tobacco industry 3. the development of new legal theories that avoided many of the tobacco industry’s traditional victim-blaming defenses. Docsity.com 2. 50 years in the courts (US) Class actions Castano v. American Tobacco Company 160 F.R.D. 544, (E.D. La. 1995), reversed, 84 F. 3d 734 (5th Cir. 1996), 84 F. 3d, 734, 737 (5th Cir. 1996). “Son of Castano” class actions In Re: Tobacco Litigation (Medical Monitoring Cases) (Ohio County Circuit Court, W. Va.), resulted in a jury verdict for the defendants in November 2001 Simon II Nationwide punitive damages R. J. Reynolds Tobacco Co. v. Engle 672 So. 2d 39 (Fla. App. 1996), 682 So. 2d 1100 (Fla. 1996). $12.7 million individual damages and $145 billion punitive damages. Docsity.com 2. 50 years in the courts (US) Individual cases in the 3rd wave • Mixed results. • Cases rely heavily on the industry documents to tell a compelling narrative of industry behavior. • Because this story remains largely constant across cases, attorneys can realize economies of scale in case preparation. • With each new courtroom victory, they can refine the evidence and arguments, further increasing the chances for future successes. • 250 individual cases are now pending in U.S. courts. See generally, Robert L. Rabin, “The Third Wave of Tobacco Litigation,” in Robert L. Rabin and Steven Sugarman, Eds., Regulating Tobacco (New York, Oxford University Press 2001),195-97. Docsity.com 2. 50 years in the courts (US) Other 3rd wave litigation • Third-party payers of medical expenses, including private insurers and trade union health benefit funds. Very limited success - lack of standing, injuries claimed are too remote. Approximately fifty private cost recovery actions remain pending. • Asbestos manufacturers have filed suits seeking contribution from tobacco companies for the role of cigarettes in causing or aggravating the cancers of asbestos victims. • Fire victims have sued for the failure of manufacturers to make cigarettes self-extinguishing. • Foreign governments litigation in the United States, either to recover health care costs or for relief related to the alleged role of cigarette manufacturers in global tobacco smuggling schemes. A number of these cases have been dismissed. Docsity.com 3. Litigation: the global experience Australia 2002 – the future McCabe v. British American Tobacco Australia, [2002} VSC 73 (22 March 2002) Application to strike out defence based on Defendant’s destruction of documents denying Plaintiff a fair trial by: • destroying thousands of damaging documents under a “retention” policy • misleading the court about the material, claiming it could not be found, and • warehousing documents, locating them to be more difficult for courts to access. Following the defence being struck out, a jury returned a verdict of AU$ 700,000 in favour of the Plaintiff who had contracted lung cancer. Cauvin v. Philip Morris & Ors. NSW Supreme Court Equity No. 2625 of 2002 Seeks to apply AU$230,000,000 in invalid excise, collected by tobacco retailers and wholesalers from 1 July 1997 to 5 August 1997, for the benefit of smokers. Cauvin v Philip Morris & Ors. NSW Supreme Court Common Law No. 11301 of 2002 Seeks to expose misleading or deceptive conduct by the tobacco industry in Australia, procured by overseas parent companies, in contravention of the Trade Practices Act, 1974 (Cth.), Fair Trading Act, 1987 (NSW) and equivalent legislation in other States and Territories. Refer Francey N and Chapman S, “Operation Berkshire: The International Tobacco Companies Conspiracy” 321 BMJ 371, 5 August 2000. The proceedings seek to obtain compensation for the plaintiff and other persons who have suffered, or who are likely to suffer, loss or damage, and to fund measures to prevent or reduce such loss or damage. This could extend back over the past 25 years and for 25 years into the future. The aggregate sum could be billions of dollars. Docsity.com 3. Litigation: the global experience Bangladesh The BAT Yacht Case Public interest writ in equity, invoking the right to life and liberty guaranteed by the Constitution of Bangladesh, to establish a BAT yacht constituted an “advertisement” for cigarettes and that the use of any advertisement for cigarettes without appropriate health warnings offended the constitutional right to life. Canada Province of British Colombia health care cost recovery litigation grounded in a specific Statute: Tobacco Damages and Health Care Cost Recovery Act 2000 India The Kerala Case Supreme Court of India, 2 November 2001,ordered the states of the Indian Union to issue immediate orders banning smoking in public places. The Warlaw Case Women’s Action Research and Legal Aid for Women 2000 Supreme Court Petition for a criminal investigation of the Indian tobacco industry. Docsity.com 3. Litigation: the global experience New Zealand Janice Pou v British American Tobacco (NZ) Ltd and W D & H O Wills (NZ) In the first such case in New Zealand, Janice Pou, a 51-year-old suffering from lung cancer, filed a suit of more than $300,000 against British American Tobacco and WD & HO Wills in the High Court at Auckland on Friday 21 June 2002 (Legal Aid granted). Norway Supreme Court of Norway award of $260,000 in compensation to a worker who developed lung cancer after working for fifteen years as a bartender, October 2000. Saudi Arabia The KFSH Case King Faisal Specialist Hospital filed suit in December 2001 in the Grand Shariah Court of Riyadh against ten international tobacco manufacturers and their local agents seeking $2.9 billion for the cost of treating an estimated three million sick smokers over a period of twenty-five years. Docsity.com 4. Starting Point: the documents Recognizing the importance of the documents and their contents, the Amman Consultation identified the most important barriers to increased use of this resource, and agreed on the urgent need for: • Concentrated efforts to win release of additional documents from tobacco manufacturers and industry associations outside the US. • Improved access to documents in the Guildford Depository, preferably in electronic form. • Creation of a centralized mechanism to assist Member States in: - Gaining physical access to and translating, documents. - Identifying and analyzing relevant documents. - Preparing regional or country reports. - Increasing global capacity for document research and analysis. - Disseminating the findings of document research. Docsity.com 5. Public inquiries as a manageable alternative United States 1994 Food and Drug Administration investigation of tobacco industry Health Select Committee of the House of Commons of the United Kingdom Inquiry Kenya’s Commissions of Inquiry Act 2000 Report of the Committee of Experts appointed by the Director General of WHO to examine evidence of tobacco industry interference with the health initiatives of WHO Eastern Mediterranean Regional Office of WHO and released to great public interest at the Amman Consultation, Voice of Truth, Volume 1: Multinational Tobacco Industry Activity in the Middle East: A Review of Internal Industry Documents (2001) Docsity.com 5. Public inquiries as a manageable alternative Public inquiries should: • Be adequately staffed and funded, and have sufficient time. • Have access to a meaningful collection of industry documents. • Have the power to compel production of additional documents. • Be conducted by officials with independence and integrity. Advantages of public inquiries: • Do not require the resources involved in large-scale litigation • Raise the profile of tobacco issues and increase public awareness. • May offer the best opportunities for compelling the release of documents. • Legal immunity from possible industry threats of litigation. • Tobacco company positions are placed “on the record” • Can help force health officials to act more decisively on tobacco issues. • Can generate and analyze key evidence of tobacco industry conduct in the country, providing the groundwork for a meaningful analysis of litigation options. Docsity.com 6. Choices and decisions: What Relief Will Be Sought? Release of industry documents Declaratory relief Injunctive relief - requiring defendants to take action, or prohibiting them from taking action: -General prohibitions against future misconduct -Restrictions on packaging, advertising, marketing, sponsorships -Changes in the design or formulation of cigarettes or tobacco products -Public disclosures, warning labels or statements -Corrective public educational campaigns -Termination of industry programs or the disbanding of business associations -Restrictions on public smoking -Creation of smoking cessation programs -Orders development and enforcement of tobacco control programs Equitable relief - could include other innovative remedies fashioned by the court to restore justice and remedy the harm caused by defendants Monetary remedies – could serve multiple purposes: -compensatory damages; -punitive (exemplary) damages; -fines or civil penalties; -statutorily authorized attorneys’ fees and money paid as equitable relief. Docsity.com 6. Choices and decisions How Will the Litigation Be Financed? • Contingent fees • ”Spec” cases • Private funding • Commitment of public funds Docsity.com 7. Litigation: the lesson learned The potential value of successful litigation is inescapable… but needs care. Docsity.com 8. Steps forward: Litigation • Monitoring, and reporting on, significant developments in ongoing global litigation. • Developing a nucleus or network of legal experts with specialized knowledge and experience in tobacco litigation, diverse legal systems and international law. • Facilitating interaction among experts from these and other fields, to integrate their expertise and apply it to specific Member States’ situations. • Identifying and disseminating the lessons of successful litigation, with special emphasis on successes in developing countries e.g. the recent Indian writ litigation. • Promoting international exchanges among experts and officials. Docsity.com 8. Steps forward: Litigation (continued) • Commissioning legal research on issues of broad international interest (e.g., issues specific to courts grounded in Islamic tradition, global opportunities for public interest writ litigation, or issues involved in asserting claims under international legal commitments). • Helping individual Member States to elaborate and assess their legal options. • Helping Member States identify and mobilize litigation resources. • Encouraging strategic decisions that pursue promising litigation while avoiding cases likely to fail or to set back global progress. • Providing direct support and consultation to states that undertake litigation. • Exploring models for internationalizing tobacco litigation Docsity.com 9. Conclusion The world is accustomed to thinking of the law as an instrument of justice, but not as an instrument of health. We expect epidemics to be defeated in the clinic or the community, not in the courtroom. Yet the power of the law to help fight the global tobacco epidemic is now undeniable. Used with discipline, the law can awaken public outrage, strengthen public policies and redress injuries — results that advance both justice and health. This powerful new tool is not for everyone. Like fire, or a dangerous weapon, it must be handled with care. But the law has now become an indispensable component of a comprehensive global tobacco control agenda, and nations in every part of the world are eager to tap its power. It is time for the global health community to find common purpose in seeing that this is done wisely and for the benefit of all countries. It is time that the tools of law be harnessed in the service of global health … and global justice. Docsity.com