Remember how appalled we all were watching that two-year-old Indonesian boy chain smoking when his YouTube video went viral this year? I mean, there was outrage!
So tell me, is there so much difference between that tragic situation, and one right here in America, where Lorillard Tobacco Company parked a van outside of a housing project school playground handing out Newport menthol cigarettes to children, calling them “fun”? And getting kids hooked on nicotine at such a young age that it became nearly impossible for them later to quit?
A Massachusetts jury heard about this and yesterday, they expressed their outrage by hitting Lorillard with a $71 million verdict on behalf of the estate and son of a woman who was one of these children, who got these samples at least 50 times starting at age 9 and was addicted by age 13, tried unsuccessfully to quit 50 times and who eventually died of lung cancer. The Boston Globereports,
“It’s quite big in terms of not just the size of the award but really the reflected outrage of the jury after they learned of the detailed history of what Lorillard did in the 1950’s and 1960’s, acting in a predatory manner to promote Newports but at the direct expense of the health, safety, and very lives of people, including children,’’ said Edward L. Sweda Jr., senior lawyer for the Tobacco Products Liability Project at the Northeastern University School of Law.
The novel aspects of this case was its focus on Lorillard’s strategy of targeting urban neighborhood with Newport, a menthol brand that is popular among African-Americans. According to the Tobacco Products Liability Project at Northeastern, 75 percent of African-Americans prefer menthol brands.
For more, check out the radio interview with one of the Center for Justice & Democracy’s Civil Justice Resource Group members, Professor Richard Daynard who runs the Tobacco Products Liability Project at the Northeastern University School of Law.
When you think of health care and tobacco, I’m assuming what comes to mind are the shocking statistics, like “every year in the U.S. over 392,000 people die from tobacco-caused disease, making it the leading cause of preventable death.” Plus another 50,000 dying per year from second had smoke.
Hold onto your hats.
In 2000, the Center for Justice & Democracy published a breakthrough study on some of the more nefarious origins of the “tort reform” movement called The CALA Files -- The Secret Campaign By Big Tobacco And Other Major Industries To Take Away Your Rights, by Carl Deal and Joanne Doroshow.
Here are just a couple choice excerpts:
By 1992, the American Tort Reform Association had hired a public relations firm to help it reach its “tort reform” goals by creating local “grassroots” front groups. The contract was with a subsidiary of public relations titan Grey Advertising called APCO & Associates, a company that had specialized in “tort reform” lobbying since the 1980s and had worked for both insurance companies, like State Farm, and the tobacco industry.
A document uncovered in the Philip Morris files of the Tobacco Archives indicates that APCO and Neal Cohen, its “principal account executive on the PM [Philip Morris] Family Tort Project” had been, since 1988, “assisting the PM Family” on “national and state tort coalitions and other tort reform advocates with political, communications and grassroots strategies and related programs.”
There’s much more in The CALA Files about how APCO inserted itself into "tort reform" efforts in Texas, Louisiana and elsewhere using tobacco money that was funneled through a Washington DC corporate law firm called Covington & Burling. Covington's anti-jury partner, Philip K. Howard, is someone we’ve covered before.
Here is where it gets really interesting. Yesterday, former Cigna VP and now whistleblower Wendell Potter toldDemocracy Now’s host Amy Goodman about the panic that occurred in the health insurance industry when it learned that Michael Moore would be producing a documentary on the health care industry, called Sicko. Desperate to ensure that the film failed and that health care reform did not succeed, the health insurers hired APCO to create similar front groups to smear Michael, Sicko and any threat to insurance industry profits.
These excepts need little comment so please read for yourself:
AMY GOODMAN: And so, what was the grassroots strategy, if you had one, as the movie came out in the United States?
WENDELL POTTER: Well, one key component was to fund a front group, and that is something that I write about quite a bit in the book, about how special interests, and the insurance industry, in particular, will use premium dollars to funnel thousands and thousands, if not millions, of dollars to big PR firms to set up fake grassroots organizations—astroturf, as we call it—and front groups. And in this case, there was a front group that was set up called Health Care America, and the sole purpose for it to be set up was to attack Michael Moore and to attack the notion of a single-payer system in this country.
AMY GOODMAN: And who were the people who populated Health Care America?
WENDELL POTTER: There were just a couple of people. There was a woman. I think her name was—I can’t remember her name. Sarah Berk, I think, was her name. But the media contact for it was a guy named Bill Pierce, who I had known and worked with in the past. He used to be a PR guy for Blue Cross/Blue Shield Association. At that time, he was in the public relations firm APCO Worldwide. He was listed as a media contact, and if you called his number, you would have reached him at his desk at APCO Worldwide. It didn’t have any substance. It was just a—
AMY GOODMAN: What is APCO Worldwide?
WENDELL POTTER: It is a very, very big PR firm that was started several years ago by a big Washington law firm, Arnold & Porter. The A and P is Arnold & Porter, and they were defending—
AMY GOODMAN: APCO.
WENDELL POTTER: Yeah, and they were defending tobacco companies. So they felt that they needed to have help in the court of public opinion, as well as in the courtroom.
AMY GOODMAN: And what did Health Care America—who did they say they were?
WENDELL POTTER: They said they were representing consumers. And—
AMY GOODMAN: Did anyone expose this at the time?
WENDELL POTTER: No. No one did.
Potter goes on to discuss how lazy reporters and producers from the New York Times and CNN were duped by APCO. And it gets even nastier. Potter continued:
WENDELL POTTER: At one point during a strategy meeting, one of the people from APCO said that if our efforts, our initial efforts, were not successful, then we’d have to move to an element of the campaign to push Michael Moore off a cliff…”
Not literally, of course. But figuratively is bad enough. I think it's time for a new dead bolt.
We loved this great blog item from The Consumerist called “Top 10 Ironic Ads From History” and just about all of them have an ironic civil justice angle too. And some aren’t so “historical”. (But they are somewhat hysterical.)
Take, for example, the ad for the Bhopal India chemical plant, which ended up causing the worst industrial accident in the world. Had civil lawsuits against Union Carbide been allowed to proceed in U.S. courts, hundreds of thousands of injured people would have received a lot better justice.
Or one for the Corvair, a very dangerous GM car. What, GM sometimes puts unsafe cars on the road? No way. Way.
Or the drug Thalidomide. The FDA never approved Thalidomide but it did approve Accutane, which led to similar birth defects. That drug was JUST taken off the market.
Or Dupont - not our favorite company. See here and here for some examples why.
But in allowing the tobacco class action to go forward (so long as a “representative plaintiff” for the class meets Prop. 64’s rigid requirements), the California Supreme Court rejected Big Business’s view of the law. Otherwise, it said, Prop. 64 "would effectively eliminate the class-action lawsuit as a vehicle for the vindication of (consumer) rights."
We’ve said it before, but it’s worth repeating—the Supreme Court finally got it right with the Williams case—Bob Peck deserves his trip to Paris (as well as the Oregon lawyers and Ms. Williams, who fought the tobacco industry for 10 years)!
Here at ThePopTort, we are all about holding irresponsible industries accountable—so we were certainly glad that the U.S. Supreme Court recently allowed a deceptive advertising case against tobacco behemoth Altria Group to go forward. Now, we are also very happy to report that the effects of the Court’s decision are beginning to be felt across the nation.
Attorneys in one well-known Southern Illinois case, Price v. Philip Morris, are trying again, for example. In that case, a $10.1 billion judgment against Philip Morris was thrown out by the Illinois Supreme Court, with the Court claiming that “the FTC authorized Philip Morris to use the words Lights and Lowered Tar and Nicotine on Marlboro Lights cigarettes and ordered the consumer fraud case dismissed.” But now that the U.S. Supreme Court has held “that federal law does not prohibit state law consumer fraud claims based on fraudulent ‘light’ cigarette descriptors,” attorneys are seeking to reopen that case, and with good reason.
Meanwhile, 40 similar cases pending in 22 states have also been brought back from the “precipice,” according to Edward Sweda, an attorney with the Northeastern University’s Tobacco Products Liability Project. “An entire class of litigation has been revived thanks to [the Supreme Court’s] ruling,” he said.
In a closely-watched preemption (i.e. corporate immunity) case that we've blogged about, the U.S. Supreme Court today allowed a case about the deceptive marketing of “light” cigarettes to go forward under Maine’s unfair trade practices law.
Fantastic victory here, and while it shouldn’t have been close, it sure was (5 to 4)! And the court ruled only on the preemption claim, not on the merits. But, phew!
Well, civil justice fans, we would be remiss in not commenting on yesterday’s U.S. Supreme Court arguments in the nine-year, Homeric Odyssey of a case, Philip Morris USA v. Williams. Unfortunately, the size and scope of the story are such that it’s impossible to thoroughly discuss within the narrow confines of this humble blog without sounding, as Tom Cruise famously described Matt Lauer, “glib.”
Suffice it to say, as Williams’s attorney, Robert S. Peck of the Center for Constitutional Litigation (we’re big fans of Bob) pointed out: “This case involves a massive market directed fraud driven by high level decisions to deceive customers and knowingly endanger their health in order to generate enormous profits.” At issue are punitive damages awarded and upheld twice by the Oregon courts. The Supremes can’t seem to let it go! We hope the Court sides with Bob and his client. On the other hand this court has been judicially active beyond belief, so you never know.
We strongly encourage readers to follow the case closely (and we’ll do the same!) as the outcome could have far-reaching implications for punitive damage awards, which are a proven and essential tool in deterring corporate misconduct and protecting consumers.
Well, civil justice fans, the people have spoken, and despite injecting wads of cash into local judicial and attorney general races, the so-called “tort reform” crowd suffered some stinging defeats at the state level. Among the great things that happened on November 4, voters ousted anti-consumer judges in major upsets by electing two chief justices and two supreme court incumbents, and re-electing the West Virginia attorney general, who has been relentlessly targeted by “tort reform” groups and attacked during the campaign by U.S. Chamber of Commerce-supported ads, which were produced by the same nice folks who brought you the famous “swift boat” spots.
Of course, for those of us who were horrified by the largely covert hijacking of previouselections by the U.S. Chamber of Commerce, and other so-called “reform” groups, these victories are particularly sweet.
So, hooray that Michigan Chief Justice Cliff Taylor lost to Diane Marie Hathaway, despite almost tripling her campaign spending (with the help of the Michigan Chamber of Commerce).
Three cheers for the fact that Mississippi Chief Justice Jim Smith who was backed by the “reform group,” Mississipians for Economic Progress, lost to the great trial lawyer Jim Kitchens (who is perhaps best known outside the legal community for representing the only child of blues legend Robert Johnson) and won with 54 percent of the vote!
And an extra-special shout to West Virginia AG Darrel McGraw, who has fought valiantly on behalf of those victimized by big drug and tobacco companies, and fended off a very tough challenger who was heavily financed by both the U.S. and West Virginia Chambers of Commerce.
We could go on, but you get the idea—our justice cup runneth over. Tuesday was a great day for civil justice lovers. Ha! Ha!
Well civil justice fans, it’s opening day for the U.S. Supreme Court, and first up on the Court’s docket is the
federal preemption case, Altria v. Good.
In a nutshell, the tobacco company Altria Group is trying to get the Supreme Court to scuttle a class action suit against it that was brought under Maine’s deceptive advertising laws, based on its suggesting that “low tar” and “light” cigarettes were a healthier alternative to regular cigarettes. They’re not. But the company is trying to argue that because there’s a 1965 federal law on the books that regulates this area, cigarette companies should be completely immune from liability – no matter how deceptive their advertising is.
Reports about today’s arguments suggest that the court seemed split, even though the Bush Administration was on the side of the smokers! One report said, “Justice Samuel Alito and other justices blasted the FTC for continuing to allow cigarette companies to make light cigarette claims. ‘You've created this whole problem,’ Alito said, lecturing Douglas Hallward-Driemeier, an assistant to the U.S. Solicitor General. ‘You have misled everyone who bought these cigarettes for a long time.’”
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