FOR IMMEDIATE RELEASE  

Contact: Richard Daynard
Edward L. Sweda or
Mark Gottlieb
(617) 373-2026

e-mail to media[at]tplp.org (use @sign)

March 29, 2004

Jury to Determine how Tobacco Industry will Fund
Smoking Cessation Services in Louisiana in Second Phase
of Landmark Class Action Trial

Background and Commentary on the Trial Verdict

GLORIA SCOTT and DEANIA JACKSON,
PLAINTIFFS,

 vs.

 PHILIP MORRIS INC.; R.J. REYNOLDS TOBACCO COMPANY; LORILLARD TOBACCO COMPANY, INC.; BROWN & WILLIAMSON TOBACCO CORPORATION, individually and as successor by merger to THE AMERICAN TOBACCO COMPANY; and THE TOBACCO INSTITUTE, INC.,
DEFENDANTS.

 CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
STATE OF LOUISIANA -- DIVISION "K"

Case No. 96-8461

Phase 2 Background

            In a landmark class-action lawsuit brought on behalf of smokers seeking payment by the major cigarette manufacturers of medical monitoring for 1.5 million Louisiana smokers and for programs to help smokers quit, a jury decided on July 28, 2003 that the major U.S. tobacco companies are liable to smokers in Louisiana for smoking cessation services.  Approximately 7,000 people in Louisiana die each year of smoking-caused diseases. 

           The lawsuit was brought on behalf of Louisiana residents who took up smoking as of May, 1996.  The class definition in Scott  was defined as:

"all Louisiana residents who are or who were smokers on or before May 24, 1996, of cigarettes manufactured by the defendants, who desire to participate in a program designed to assist them in the cessation of smoking and/or to monitor the medical condition of class members to ascertain whether they may be suffering from diseases caused by, contributed to, or exacerbated by the habit of cigarette smoking, provided the class member alleges that he or she commenced smoking before September 1, 1988 or that one or more defendants actively and intentionally engaged in a course of conduct designed to undermine or eliminate compliance with or attention to warnings on cigarette packaging."

            The plaintiffs are represented by a consortium of about fifty law firms known as the Castano P.L.C.  that was organized in 1994 to pursue a national class action on behalf of all smokers.  That class action was ultimately decertified and, on the next day, May 24, 1996, the consortium of attorneys filed the Scott case.       

            On July 25, 2003, a state district court jury in Louisiana ruled that cigarette manufacturers should pay for smoking cessation programs.  The jury rejected claims for industry-paid medical monitoring for 1.5 million Louisiana smokers and ex-smokers.

            The jury returns to court on March 29, 2004 for Phase II of the trial.  Opening arguments for Phase II are scheduled for Wednesday, March 31, 2004.

            On November 4, 2003, Judge Richard J. Ganucheau issued a per curiam order in which he made the following findings:

"This Court determines that the class of Louisiana smokers has demonstrated a need for court-administered programs designed to assist the class of Louisiana smokers who desire to quit smoking and to prevent relapse . . .”

“The Phase II trial will determine the nature, types and components of the cessation of smoking programs, the parameters of such programs, the procedures to be adopted for the establishment, implementation of such programs, the requirements of eligibility of the class of Louisiana smokers who desire to participate in such programs, the duration of the programs, methods for insertion of these programs into the existing public and private healthcare infrastructure in the State of Louisiana, the cost of the programs and the procedures for the establishment and the administration of the court-supervised fund . . .”

 

“Individual addiction is not a prerequisite to participation in the program.  Individual causation, to the extent that it is an issue, will be determined administratively, and not by a jury . . .”

“Based upon the Phase I trial record, this trial court has determined that the principles of comparative fault do not, and more importantly, should not apply to this case.  Applying comparative fault to this intentional act, fraud and conspiracy case would vitiate the very public policy that underlies the doctrine of comparative fault . . .”

“The Phase I trial record showed, and the jury found, that the defendants committed fraud and intentionally conspired to commit that fraud . . .”

 

“The liability trial record in this case also revealed that the defendants’ intentional wrongdoing is, was and will always be fundamentally different in nature than plaintiffs’ negligence, if any.  A true comparison of fault…is simply not possible . . .”

 

“The evidence in this case led the Phase I jury to the findings that defendants’ conduct was intentional across the board, and conspiratorial.  Accordingly, the defendants should be estopped from making the argument that the public generally, Louisiana smokers in particular, knew or should have known these facts which the defendants have consistently misrepresented to be untrue or unknown . . .”

 

“Consent is not applicable to this case.  Based on the trial record, consent is vitiated by the defendants’ superior knowledge and inducement of the plaintiffs’ class members to smoke with the intent and desire that they become addicted . . .”

See Complaint (pdf)

Commentary

Edward Sweda, Senior Attorney for the Tobacco Products Liability Project at Northeastern University noted: "This was an historic victory for Louisiana smokers.  Last July, the jury found that the tobacco companies addicted these smokers through their reprehensible conduct and now must pay to un-addict them."

Mark Gottlieb, also an attorney for the Tobacco Products Liability Project observed that, "I am looking forward to hearing from tobacco companies as to why they feel that only minimal funding will be needed to help their customers who want to quit, estimated by the U.S. Centers for Disease Control and Prevention (CDC) to be around 7 out of every 10.  Anything they claim will be suspect because at issue is how much money they should pay in order to actually lose business by helping addicted customers to quit using and buying their products."

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