According to Jacob Sullum (Reason “Hit and Run”, May 20), it’s now shambling toward an ignominious finale. For more, see Feb. 5 and links from there.
Posts Tagged ‘tobacco’
Government-funded lobbying
You might think it’s easy to get people outraged at the idea of the government’s pushing for its own favored policies by quietly funneling tax money to one side in public debate. At least when the topic isn’t tobacco; in that case, taxpayer-funded Astroturf efforts seem to be perfectly fine. (Tony Messenger, “When judging anti-smoking efforts, follow the money”, Columbia (Mo.) Daily Tribune, Apr. 17)(via Jacob Sullum, Hit and Run, in a post titled “Bowing to Their Own Pressure”). For a particularly egregious example from California, see Jan. 5, 2000.
Virginia Prado Alvarez v. R.J. Reynolds Tobacco Co.
The plaintiff’s husband, Francisco Garcia Lopez, died of lung cancer at the age of 68 after smoking 3 packs a day for 42 years.
Edgardo [García Prado] testified that he “would tell [his father] to stop smoking every day and he would pay no attention.” Still another son, Orlando, testified that, when family members or friends would tell his father that smoking was harmful, he would say “that we all have to die some time from something . . . . He always had the same answer.” Decedent’s brother, Demetrio García Lopez, testified that he had been telling his brother that smoking was harmful since about 1970. Demetrio said he did not know his brother’s perception of the health risks of smoking, noting, “[t]he thing is that he would not pay any attention to anybody, so it just didn’t matter to him.”
Nevertheless, the family sued for “failure to warn” on the grounds that Lopez couldn’t have been expected to know smoking was dangerous. In support, they offered the “expert” testimony of Marly Ferrer Montalvo, who had a bachelor’s degree in history and had written a thesis on Haiti, but she had done a few months of photocopying tobacco advertising for a professor. Thankfully, neither the district court nor the First Circuit bought this, and the case was dismissed on summary judgment, but Alvarez’s lawyer, Herbert Muriel, won a wrongful death jury verdict on this sort of concocted theory in September 2002 before it was thrown out of court. (Irene Cruz-Vargas v JTI Japan Tobacco INT, No. 00-2334 (D.P.R.), aff’d by Irene Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271 (1st Cir. 2003); Virginia Prado Alvarez v. R.J. Reynolds Tobacco Co., No. 04-1695 (1st Cir. Apr. 21, 2005)).
New post category: “Eat, Drink and Be Merry”
It’s been a while since we’ve added any new topical categories, so we’ve just created one that’s been overdue: Eat Drink and Be Merry, covering lawsuits over bacon cheeseburgers and obesity, booze sales, foreign objects that turn up in the chili or bottled water, calorie-labeling goofs, and, of course, hot coffee spills. We might throw in a few related stories about claims of “addictive” entertainment, too. Several of these topics are obviously closely related to the themes of our ever-popular personal responsibility subpage, which will remain unchanged.
A word about our topical pages (which are a great way to use the site for research, or just browse what we’ve published on a topic you find of interest): our subpage on product liability is a catch-all for cases in that category that don’t fit into the more specific pages covering guns, tobacco, cars, aircraft, microchips, and so forth (and now food and drink). If you’re interested in product liability as a general subject, you should consider visiting these other pages too. And our subpage on environmental law ranges somewhat afield to take in topics that include zoning, landmark preservation, mold claims and (always a favorite) animal rights. The full list of topics can be found along the right column of Overlawyered’s front page, just below the list of archives arranged by month.
“U.S. Lawyers Have Little Stomach for Obesity Cases”
“Where are the promised obesity lawsuits?” Evan Schaeffer asks, citing an April 18 Reuters story by Gail Appleman. (He miscredits Overlawyered with the prediction of particular timing, however; we simply quoted a Lawyers Weekly USA headline that in turn relied upon the public statements of plaintiffs’ attorneys.)
Schaeffer goes on to suggest that the several states that have enacted laws protecting the fast-food industry have wasted their time. But of course the states that bar obesity lawsuits aren’t seeing obesity lawsuits. The plaintiffs’ bar bragged about how they used the media to change the playing field for tobacco litigation, and the fast-food industry stepped forward to prevent an instant replay, and won the public debate–thus discouraging many lawyers from spearheading these actions so far ahead of public opinion, especially when state law prevented recovery. But Richard Daynard, speaking at an AEI conference on the subject last month, certainly didn’t sound like he was going to give up: “I think these cases in the long term may have viability.” And John Banzhaf complained just yesterday that a 93% downward revision by the CDC of the estimated effects of obesity was a corporate conspiracy that wouldn’t affect lawyers’ plans for future lifestyle litigation. (Joyce Howard Price, “CDC says obesity deaths overestimated”, Washington Times, Apr. 20). It’s to the credit of the plaintiffs’ bar that many recognize that the lifestyle litigators may have bitten off more than they can chew; one suspects that the true concern is that such litigation could create a backlash against the compensation culture that funds Trial Lawyers Inc.
There’s a strange disconnect in Schaeffer’s argument. He suggests that reformers are deliberately exaggerating the risk of lifestyle litigation to get legislation passed — but what would be the motivation for achieving that goal if the risk is exaggerated? If the plaintiffs’ bar is really opposed to lifestyle litigation, as Schaeffer suggests, why not score some cheap political points by supporting the legislation instead of fighting it so hard? A cynic might suggest that they’re trying to keep the door open for copycat litigation in case the pioneers find a jurisdiction that will let the claims proceed. As it is, the Pelman decision (Jan. 27) will likely cost McDonald’s shareholders millions of dollars in litigation costs.
Canada: provincial tobacco copycat suits
Bad ideas from the U.S. hit Canada ten years later dept.: two Canadian provinces are seeking to replicate the success of state attorneys general in the U.S. and scoop up large amounts of money from tobacco companies through lawsuits without the bother of raising taxes. British Columbia’s legislature followed the lead of several U.S. states (Florida, Maryland and Vermont) and enacted an explicitly retroactive “we win, you lose” statute undercutting tobacco companies’ defenses against cost recoupment. Now Manitoba has joined in, its decision announced by Theresa Oswald, who bears the scary title of Healthy Living Minister. (“Manitoba to back B.C. in tobacco case”, CBC, Feb. 25)(B.C. law).
Tobacco-cartel challengers
…profiled by Forbes. Defending the cartel? New York AG Eliot Spitzer, fearless watchdog over antitrust infractions (except when he isn’t). (Scott Woolley, “Trustbuster”, Forbes, Feb. 28).
NYC tobacco ban
Radley Balko vs. Kevin Drum.
Appeals panel rejects tobacco disgorgement
In a severe blow to the federal government’s wretched racketeering lawsuit against major tobacco companies, a panel of the D.C. Circuit, split 2-1 along ideological lines, has held that the Justice Department can’t seek disgorgement penalties of $280 billion against the companies. (AP/Forbes; Fox News). For our commentaries on this bipartisan disgrace of a lawsuit, see Sept. 21 and links from there, as well as Sept. 24. Reactions: Competitive Enterprise Institute, Mike DeBow, Anthony Sebok.