March 28, 1998
Dear Mssrs. Myers, Novelli, Seffrin and Wheeler:
On February 17, you signed on to a letter that reaffirmed the principles of the Final Report of the Advisory Committee on Tobacco Policy, reaffirming the position that "we oppose granting the tobacco industry immunity against liability for past, present or future misdeeds."
In a controversial "codicil" to that letter, you wrote that it was possible you might support public health legislation that would diminish smoking rates but also contain limits on tobacco industry liability. But, you limited the legislation you would consider supporting to bills that "d[o] not grant the industry immunity or weaken the ability of the civil justice system to protect the public health or defend fundamental rights."
That statement is now about to be put to the test. News reports suggest Senator McCain will soon be introducing a bill that contains some important anti-tobacco initiatives but would prevent class actions for past conduct of the industry, limit or preclude punitive damages available to plaintiffs against the industry and cap annual industry liability. If the McCain bill includes all of these provisions, it will have effectively adopted the liability position of the June 20 deal, which has been roundly rejected by public health and consumer groups.
Any of these provisions would do violence to the civil justice system, for familiar reasons: Class
actions and the prospect of punitive damages are necessary to make suing the tobacco industry
economically feasible. Caps enable the industry to get off the hook by paying some very tiny
proportion of the damage it inflicts on society, and give the industry the balance-sheet
predictability it so craves to escape the disciplining effect of financial uncertainty. If combined,
these provisions would give the industry virtual immunity from lawsuits.
From a public health standpoint, as well as with respect to the rights of injured parties, all of these provisions are unacceptable. The civil justice system is a unique public health tool that plays an essential role in securing document disclosure, spurring deterrence and, indirectly, generating media and Congressional attention, building political momentum against corporate misconduct, spawning criminal investigations and regulatory initiatives and unleashing civic energies. It is the very thing that has put the tobacco industry on the defensive.
Undermining the civil justice system will have grave consequences, and not just for tobacco control. If granted to the tobacco industry -- the most predatory and deadly of industries -- other industries will soon be clamoring for equal treatment.
We all know how important tobacco control legislation is to advance the public health. But we are much better off with clean and focused legislation -- or even, for the time being, no legislation at all -- than with legislation that sabotages the civil justice system even before the full brunt of anti-tobacco evidence and public condemnation comes to bear on the industry.
As long as the public health community remains united in opposing proposals to trade away the civil justice system, we will be able to defeat efforts to give Big Tobacco what it most desires.
We need from you, now, an assurance that you will honor prior commitments to protect the civil
justice system and oppose the McCain bill if it includes any of liability limits now being discussed.
Sincerely,
Ralph Nader
cc. Dr. C. Everett Koop, Dr. David Kessler