More great news on litigation front:
Legal Beat
Tobacco Industry Wins a Round
In Court Against San Francisco
By MILO GEYELIN
Staff Reporter of THE WALL STREET JOURNAL
In a significant victory for the tobacco industry, a federal judge threw out San Francisco's suit seeking to recover that city's public-health-care cost of treating those with smoking-related illnesses.
In dismissing the claim, U.S. District Judge D. Lowell Jensen in San Francisco said the city could amend its complaint to address his concerns. But in order to comply, the city will probably be forced to seek recovery of its public-health-care outlays on a case-by-case basis in thousands of individual trials.
The city's complaint was modeled after similar lawsuits now pending in 22 states alleging that the tobacco industry hooked millions of smokers by manipulating levels of nicotine in cigarettes. The city had accused cigarette manufacturers, the industry's research arm and its trade organization of racketeering, fraud, misrepresentation and unjust enrichment. As in the other lawsuits, San Francisco sought to use statistical models to arrive at an overall reimbursement cost for providing public health care to residents with smoking-related illnesses.
But Judge Jensen's opinion, the first by a federal court on the novel approach, eviscerated it. "In order to recover monies spent on health care for individual smokers, plaintiffs will be required to prove that each of those smokers' injuries was actually caused by smoking," the judge ruled in dismissing the racketeering and fraud claims.
Attorneys for the tobacco industry were elated. "The whole principle of this wave of litigation was to group large numbers of people together and beat tobacco. And this opinion says you just can't plain do that," said Philip Morris Cos. outside counsel Dan Webb, of the Chicago firm Winston & Strawn. "The only way they can proceed now is to prove that each individual citizen that they're claiming damages for was actually, specifically damaged by smoking, and they can't do that. It's just not practical;they've got tens of thousands of smokers."
San Francisco's city attorney handling the case hadn't seen the opinion and declined to comment. Lawyers at the city's outside law firm, Lieff, Cabraser, Heimann & Bernstein, weren't available.
In dismissing the racketeering claim, Judge Jensen ruled it would be "extremely difficult" to determine damages caused by the tobacco industry's alleged conduct because of other factors affecting any given individual's smoking-related illness. These include other health problems and how much each smoker knew of the health risks involved.
San Francisco can pursue damages for fraud and misrepresentation to the city, he added, but not on behalf of individual smokers. And San Francisco isn't entitled to recover the tobacco industry's "unjust enrichment" from cigarette sales, Judge Jensen ruled, "because the enrichment was at the expense of individual smokers, not the cities and counties." |
