Foreign Governments Appeal Dismissal of Tobacco Lawsuit in Del.
Appeal Sought in Tobacco Lawsuit
December 6, 2006
By Randall Chase, Associated Press Writer
Foreign Governments Appeal Dismissal of Tobacco Lawsuit in Del.
DOVER, Del. (AP) — An attorney representing Panama and the Brazilian state of Sao Paulo asked the state Supreme Court on Wednesday to overturn the dismissal of a lawsuit against the tobacco industry.
The two foreign governments, seeking to recover expenses for the medical care of sick smokers, turned to Delaware last year after a judge in Louisiana said Louisiana was not the proper forum for a lawsuit initially filed in 1998.
New Castle County Superior Court Judge Richard Cooch dismissed the lawsuit in June, ruling that the two governments were not seeking damages for personal injuries suffered by smokers and had failed to establish that tobacco products were the proximate cause of their alleged economic injuries.
Cooch noted that federal courts had dismissed similar claims by Venezuela and Guatemala because their claimed injuries were too “remote” from the alleged actions of the tobacco industry. He rejected an attempt by Panama and Sao Paulo to assert standing based on a doctrine under which a government can bring a lawsuit as the “parent” of a citizen.
Jon Wise, a Louisiana attorney representing the plaintiffs, told a skeptical Supreme Court panel Wednesday that while some Latin American smokers may know the risks associated with tobacco, others may be victims of secondhand smoke or minors who are unwitting targets of the tobacco industry.
While the U.S. has taken steps to educate citizens about the risks of smoking and to restrict tobacco advertising, some foreign countries are “30 to 40 years behind,” Wise argued.
“They’re still living in the age of the Marlboro man,” Wise said, accusing tobacco companies of marketing to minors in some foreign countries.
“Is that contributory negligence on the part of the (foreign) government?” Justice Henry duPont Ridgely asked in response.
Ridgely suggested that foreign governments have the option of banning the sale of tobacco products or passing laws giving their courts jurisdiction to hear claims against the industry, “as opposed to coming to the United States to litigate.”
Justice Jack Jacobs noted that if the “parent” doctrine was not available to foreign governments, as Cooch determined, then the countries must establish that they themselves have suffered distinct harm.
Wise argued that sick smokers do not suffer the economic harm endured by the governments who pay for their medical care.
“They have an interest in the health and well-being of their citizens,” he said.
Kenneth Parsigian, a Boston attorney representing Altria Group Inc.’s Philip Morris USA, noted that more than 30 similar lawsuits filed in the U.S. by foreign governments have been dismissed by the courts for failure to establish proximate cause of injury, or voluntarily withdrawn by the plaintiffs.
“There’s no direct duty owed by the defendants to the government,” Parsigian said. “The duty runs through the smoker, the same way the injury runs through the smoker.”
Justice Carol Berger asked Parsigian to distinguish between the foreign governments’ claims and the 1998 master settlement agreement between the tobacco industry and 46 states that filed lawsuits seeking to recover costs for treating sick smokers.
Parsigian explained that in return for surrendering some amount of sovereignty to the federal government, the states have been granted standing to bring such lawsuits. Foreign governments enjoy no such right, he said.
“Even if you do have it, you still have to prove a direct injury,” he said.
