Back to Court Cases on Tobacco Congress Balked at a Deal. Now Tobacco Firms Face Suits by States and Individuals Armed with Strong New Evidence

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The Senate's sweeping antismoking bill may be dead - but the tobacco industry remains in deep legal trouble.

Big tobacco's foes will now shift their focus back to the nation's courts, where the number and range of lawsuits against the $50 billion industry has grown larger than ever.

A flood of damaging internal documents released via recent lawsuit settlements will only make tobacco firms' position worse. The result could well be a many-front guerrilla war - just the thing the industry has long sought to avoid. Antitobacco "momentum continues, but it continues back in the original forum where they began to play this out, in the state and federal courts," says Richard Daynard, a professor at the Northeastern University Law School and chairman of the Tobacco Products Liability Project. "The evidence just gets better and better for people suing the industry," says Daynard. One year ago, tobacco companies seemed assured of a different future. A comprehensive settlement hammered out between the industry and 40 state attorneys general would have forever altered the nation's public-health prospects, as well as a $50 billion segment of the US economy. The deal might have ended a fight between government and tobacco first joined in 1965, when Washington began requiring warning labels on cigarette packs. In the settlement, tobacco firms agreed to pay the states $368 billion over 25 years, as compensation for state public health costs related to smoking-caused illnesses. In return, the industry would have received protection from the many court cases lined up against them. But its provisions required passage of national legislation - and both the states and tobacco firms underestimated the amount to which Washington lawmakers would alter its terms. Washington foes of tobacco felt that the industry was weakening. They saw it as a desperate effort to protect itself from court cases, so they began toughening the terms of settlement. Thus, in the bill introduced by Sen. John McCain (R) of Arizona, the $368 billion price of settlement was raised to $516 billion. The industry was given no cap on its legal liability. As the bill progressed, the mood of tobacco company officials turned from acquiescence to anger. They announced their active opposition. When tobacco firms pulled out, what had formerly been a voluntary payment suddenly became a tax on cigarettes, set at $1.10 a pack. Then firms poured $40 million into an ad campaign depicting the McCain bill as typical Washington tax-and-spend legislation. All sorts of special interests were scrambling to get their hands on the cash raised by the tobacco tax, they said. "We agreed to sit down to a negotiated process . …