Dear Senator McCain:
As you know, Big Tobacco has long been at the forefront of tort deform
efforts at the state and national level. Unfortunately, you have compiled
an undistinguished record in which you have sided with tobacco industry
attempts to compromise the civil justice system. Given this de facto
alliance
which has built up over the years, you cannot now cast yourself as
an
"honest broker" between the industry and public health proponents.
The
fundamentally flawed outlines of the "National Tobacco Policy and Youth
Smoking Reduction Act" are disturbing testament to that.
Your support for Big Tobacco's tort deform agenda
In your years as U.S. senator, you have consistently and aggressively
promoted federal preemption of state tort law and have actively pushed
federal products liability legislation that would limit the rights
of
consumers harmed by dangerous products and corporate wrongdoing.
Here is a brief review of some of your recent support for federal tort
deform legislation:
In 1996, you voted to adopt a conference report on the "Common Sense
Product Liability Legal Reform Act of 1996" and in support of a cloture
motion on the same act. Among other provisions, this bill would have
preempted Arizona and other state product liability rules and would
have
drastically limited punitive damage awards (to $250,000 or twice
compensatory damages).
In 1995, you voted for a "Product Liability Reform" bill that would
have
made it harder for juries to award punitive damages in product liability
cases, and against amendments that would have protected consumers'
rights.
In 1994, you voted in favor of cloture motions to force consideration
of a
bill to limit product liability lawsuits.
In Arizona, you have supported efforts to roll back Arizona's
constitutional protection of citizens' right to seek compensation for
injuries. Internal industry planning documents show business groups
counted on your continued support of tort deform measures even immediately
after the people of Arizona had voted in 1994 in a statewide referendum
to
preserve the civil justice system which is rooted in your state's
venerable constitution. A 1995 report from a group calling itself "People
for a Fair Legal System," a business coalition supporting tort deform,
callously characterized the civil justice system as "steadily breaking
down the core of our way-of-life: decency and self-reliance." The report
concluded, "We are one step away from victory and are steadfastly working
on the final successful effort. People for a Fair Legal System, in
conjunction with Senate President John Greene, Governor Symington,
and
U.S. Senators John McCain and Jon Kyl, as well as thousands of Arizona's
business and community leaders, have developed a strategy and a strong
resolve to enact civil justice reform. ..." (See attached excerpts
from
the report.)
It bears emphasizing that Big Tobacco has been among the leading industry
supporters of tort deform legislation, through campaign contributions,
propaganda dissemination, funding of front groups, astroturf lobbying
efforts and assorted other means. To be a down-the-line supporter of
tort
deform is to be an ally of Big Tobacco.
Your record on crucial votes you have taken to weaken the civil justice
system certainly prejudges your role in presiding over negotiations
over
tobacco industry liability limits.
The importance of the civil liability system in promoting public health
and tobacco control
Events of the last several years, and even the last several months,
have
demonstrated the incomparable importance of the civil justice system
in
advancing public health policies with regard to tobacco, as well as
other
industries.
Innovative lawsuits by private attorneys and the state attorneys general
are responsible for the tobacco industry's eagerness to accept tobacco
control policies that seemed unattainable a few years ago. The financial
uncertainty caused by the litigation, more and more litigation-generated
internal industry document disclosures, the emergence of industry
whistleblowers as an outgrowth of litigation, and the resultant mass
shift
in public attitudes toward the industry are all a tribute to the power
of
the civil justice system to advance public health purposes. Litigation
is
the tool that got us to where we are today, which is the very reason
the
tobacco industry is eager to eliminate its legal liability, or at least
contain it to predictable and relatively modest areas.
In the last few months, developments in the civil justice system have
begun to reach critical mass, with the industry's position in courts
across the country, and in the court of public opinion, progressively
weakening. Collectively, these developments show the unique importance
of
the U.S. civil justice system -- not only in attaining compensation
for
victims of dangerous products, but in securing document disclosure,
spurring deterrence and, indirectly, generating media and Congressional
attention, building political momentum against corporate misconduct,
spawning criminal investigations and unleashing civic energies.
The last few months, for example, have seen: the release of documents
conclusively showing R.J. Reynolds marketed cigarettes to children;
the
industry settlement of a medical cost reimbursement lawsuit by the
state
of Texas for more than $14 billion; Lorillard's payment of more than
$1
million in a private individual suit it lost in California; the release
of
a cache of documents by Representative Thomas Bliley, a longtime industry
ally, showing tobacco industry lawyers directed research programs to
conceal the hazards of smoking; Justice Department indictments in
connection with an apparent Brown and Williamson scheme to manipulate
nicotine levels; an industry settlement of a major second-hand smoking
class action suit; and documents made public as a result of the Minnesota
trial showing Philip Morris has done market research on children as
young
as five and orchestrated cigarette product placements in Muppets' movies.
The RJR papers conclusively show the tobacco industry to be so
calculating, so mendacious and so predatory as to be absolutely
undeserving of any special protections. These documents were the product
of determined litigation by the city of San Francisco -- and are evidence
of the uniquely valuable role of litigation in bringing incriminating
internal industry documents to light.
The Texas settlement was notable for extracting industry concessions
after
the tobacco companies had asserted its hard-line resistance to
negotiations. Not long ago, industry lawyers mocked the Texas case
as weak
and sure to fail. But in settlement it yielded a sum at least as large
as
Texas would have received under the June proposed national settlement,
which, deplorably, would grant the industry effective immunity from
lawsuits.
In the Lorillard suit, the family of a smoker successfully sued the
company for the harm caused by company cigarettes that had an asbestos
filter. The case illustrates that the industry's impenetrable wall
of
defense against lawsuits is cracking as juries learn of the various
deceits that directed marketing strategies.
The Department of Justice prosecution against a Brown & Williamson
affiliate for illegally exporting tobacco seeds bred to yield a high
level
of nicotine may lead to subsequent indictment of Brown & Williamson
for
manipulating nicotine levels, and perhaps other criminal actions against
the tobacco corporations and executives. It too flows in part from
prior
civil litigation, which provided evidence of industry manipulation
of
nicotine levels.
The very willingness of the industry to agree to pay hundreds of millions
of dollars into a tobacco cancer research foundation in order to settle
the flight attendants' second-hand smoke suit -- a case based on a
problem
the industry has long denied even exists -- suggests the long-term
potential to open up new avenues of litigation against the industry.
(That
the settlement terms may be unsatisfactory does not alter this broader
point.) These new avenues -- whether second-hand smoke cases, medical
cost
recovery suits by private insurers or others -- will maintain ongoing
pressure on Big Tobacco.
The Minnesota case has led to revelations that truly shock the conscience.
Tobacco market research on five-year olds. Cigarette product placement
in
young children's movies. This devastating information -- and more likely
to emerge in the next days or weeks, as documents for which the industry
has claimed attorney-client privilege are finally made public -- would
not
have emerged without the civil justice system's document discovery
process.
How could you consider conferring special protections on Big Tobacco
when
Minnesota is apparently just days away from unlocking the vault of
the
industry's most carefully concealed documents? These documents promise
to
detail industry misconduct in greater detail than ever before, and
to
shift public and political sentiment even further against the industry.
How can you move forward without the benefit of seeing documents, just
about to be released, that the Minnesota's attorney general's office
promises will be the most incriminating industry records ever made
public?
The public health hazard of special protections for Big Tobacco
While the liability protections to be included in the National Tobacco
Policy and Youth Smoking Reduction Act are not yet specified, news
reports
indicate they will include a combination of restrictions on class actions,
limits on punitive damages and an annual cap on industry liability.
As is widely understood, the economics of suing the tobacco industry
make
the prospect of litigating against the industry individually or with
the
prospect of no or limited punitive damage awards unattractive. The
industry's bare-knuckles approach to litigation is sufficient to
intimidate most plaintiffs and lawyers from bringing cases against
the
industry unless they can pool resources, and unless they have the prospect
of winning punitive damages for industry misconduct. Denying litigants
both the right to aggregate their claims andJwin punitive damages will
deter the overwhelming majority of would-be plaintiffs and plaintiff's
lawyers, giving the industry virtual immunity from lawsuits.
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.
Indeed, if the National Tobacco Policy and Youth Smoking Reduction Act
tracks the special protections included in the June 20 deal, then it
may
actually increase industry profits, as the Federal Trade Commission
found
the June 20 agreement would do.
Your bill's expected effective deterrence of future lawsuits will put
the
brakes on the gaining momentum against Big Tobacco. It will diminish
the
document disclosures (the document disclosure provision in the National
Tobacco Policy and Youth Smoking Reduction Act appear to track similar
discredited provisions in the June 20 deal), the media attention and
the
growing public awareness of the industry's duplicity and efforts to
addict
children. The reported combination of special protections for industry
will effectively deny victims of the industry, including the youthfully
addicted and innocents such as second-hand smoke victims, the right
to
seek compensation against the industry. If it contains caps and limits
on
class actions and punitive damage awards, the bill will enable the
tobacco
industry to make corporate decisions without internalizing the costs
of
the harms it perpetrates. If it contains the reported special protections,
the bill will give the industry abdication at home, so it can become
even
more aggressive abroad. And, not incidentally, liability limits will
have
a serious precedential effect, with other industries which are engaged
in
wrongdoing quickly demanding the same special protections granted the
cancerous tobacco merchants.
If you are serious about promoting public health through tobacco
legislation, then the very framework of the National Tobacco Policy
and
Youth Smoking Reduction Act must be discarded. Now is the time for
the
passage of strong legislation without any concessions to the Big Tobacco.
Sincerely,
Ralph Nader
Robert Weissman,
P.O. Box 19312
Essential Action
Washington, D.C. 20036
P.O. Box 19405
Washington, D.C. 20036