UPDATE: Tobacco Litigation
On September 16, West Palm Beach Circuit Judge Harold J. Cohen dismissed 15 of the 18 claims by Florida in its suit against tobacco companies to reclaim Medicaid costs ("Ruling Throws Out Part of Tobacco Suit," Washington Post, September 17, 1996, p. A7; Associated Press, "Tobacco Stocks Rally On Ruling," Washington Post (On-line), September 17, 1996).
Cohen dismissed fraud and conspiracy counts and barred the state from seeking reimbursement for costs incurred before July 1994, when the Florida law allowing such suits was passed. However, the judge did allow major portions of the claims to move forward, allowing Florida to recover close to a billion dollars. He gave the state 30 days to turn over the identities of Medicaid recipients for whom damages will be claimed. Cohen also ruled that the state can continue its request for an injunction to prevent sales to minors. The judge ordered both sides back to mediation, with trial scheduled for August 1997.
According to memos cited in new papers filed on September 17 by the state of Minnesota and Blue Cross and Blue Shield of Minnesota, Philip Morris Officials discussed hiding sensitive research documents (John Schwartz, "Tobacco Officials Discussed Hiding Data, Memos Indicate," Washington Post, September 18, 1996, p. A3; Associated Press, "Tobacco Memo Advised Burying Adverse Study," New York Times, September 19, 1996, p. A21).
The most damning document cited was a November 1977 memorandum written by nicotine researcher William L. Dunn Jr. and addressed to Thomas S. Osdene, Philip Morris director of research from 1969 until 1984. In the document, Dunn wrote, if the researcher "is able to demonstrate, as she anticipates, no withdrawal effects of nicotine, we will want to pursue this avenue with some vigor." Dunn added, "If, however, the results with nicotine are similar to those gotten with morphine and caffeine, we will want to bury it." On the day of the court filings, Dunn responded from his home, saying the comment was "not written in all seriousness." He said, "We prided ourselves in being scientists without prejudice" and the idea of suppressing research would have been "absolutely absurd."
Other Philip Morris documents refer to the Institut für Industrielle and Biologische Forschung GmbH or INBIFO, the company's research facility in Cologne, Germany. An internal memorandum written by Helmut Wakeham in April 1970, recommends the purchase of the institute in Germany, "since this a locale where we might do some of the things which we are reluctant to do in this country." A 1977 memo by Robert Seligman, then Philip Morris vice president for research and development, suggested setting up "a 'dummy' mailing address in Koln, [Germany]," in order to "avoid direct contact with INBIFO and Philip Morris USA. Undated handwritten notes found in the files of Osdene discuss shipping some U.S. research documents to INBIFO. One note, which "appears to be in [Osdene's] handwriting," according to the filings, said, "If important letters have to be sent, please send them to home -- I will act on these & destroy."
Minnesota Attorney General Hubert H. Humphrey III, who is suing to recover costs paid for by the state and private insurance programs for treating tobacco-related illnesses, said, "We're greatly disturbed by evidence of an illegal cover-up, because it deprives the public of the truth. Clearly, they have some questions to answer." Minnesota is requesting more documents from the defendants. "We have produced millions of pages and will produce millions more," said Michael York, a Philip Morris lawyer.
On August 23, a jury in Marion County Superior Court in Indianapolis found cigarette companies not responsible for a smoker's cancer death (Milo Geyelin, "Is Tobacco Trial A 'Must Win' For Industry," Wall Street Journal, August 21, 1996, p. B1; Associated Press, "Tobacco Firms Absolved In Cancer Death Lawsuit," Washington Post, August 24, 1996, p. A6).
The state jury rejected the claims from the widow of Indianapolis attorney Richard Rogers that tobacco companies were to blame for his smoking addiction. Rogers began smoking at age 5 and died in 1987 at age 52. Roger's widow sought at least $424,000 in damages in the lawsuit. Tobacco lawyers argued that Rogers voluntarily chose to start and continue smoking despite warnings of the potential risks. "We were very strong in our feeling that personal responsibility is very important," said jury foreman David Anderson.
The victory follows a loss by the tobacco industry earlier in August when a Florida jury awarded $750,000 to a man who got cancer after smoking for 44 years (see NewsBriefs article, September 1996). Documents linking nicotine and addiction introduced in the Florida case were barred from the Indiana case because it was a retrial and the judge limited evidence to that of the first trial. The earlier trial ended in a mistrial when the jury could not decide if Rogers smoked voluntarily.
A class-action suit on behalf of Pennsylvania smokers was filed in Philadelphia's Court of Common Pleas on August 8 against the tobacco industry, the industry's lobbying organization and Pennsylvania cigarette wholesalers and distributors (Stacey Burling, "Lawsuit in Phila. takes aim at the tobacco industry," Philadelphia Inquirer, August 9, 1996, p. R1; Reuters, "Tobacco Companies Sued Again," San Francisco Chronicle, August 9, 1996, p. A5).
The suit represents an estimated one million smokers and was filed on behalf of eight named plaintiffs, all of whom started smoking between the ages of 10 and 16. It alleges that the tobacco industry knowingly produced an addictive product, concealed the addictive nature of cigarettes, manipulated cigarettes to make them even more addictive, and deliberately sought to hook children on smoking. The suit also seeks to force tobacco companies to disclose all of their research on smoking's health effects. Money sought in the suit will be used to monitor the health of smokers, pay for anti-smoking campaigns, and help smokers kick the habit.
The suit was the latest to be filed in state courts against tobacco companies after the U.S. Court of Appeals in New Orleans threw out the Castano class-action tobacco suit on May 23 (See NewsBriefs article, Summer 1996). Since then, suits have been filed in New York, Maryland, the District of Columbia, Louisiana, New Mexico, North Carolina, Alabama and California. Suits are eventually expected in some 30 to 40 states, said plaintiffs' lawyers. "We lost the battle in federal court, but we mean to stick this out and win the war," said John Coale, an attorney who is the spokesperson for the Castano lawyers.