My experience and reflections concerning tobacco litigation stem from representing the American Cancer Society in November of 1998,1 when the State of Oregon asked Judge Anna Brown of the Circuit Court of Multnomah County in Portland to approve the settlement agreement reached between Oregon and the major tobacco manufacturers.2 The American Cancer Society intervened in opposition.3 The agreement was a part of a multi-state settlement reached by forty-six state Attorneys Generals and the tobacco industry proposed to state courts during that same week and the ensuing weeks around the country. By October of 1999,4 the Master-Settlement Agreement (MSA) was approved by enough states that it was effectuated.5 Distributions pursuant to the agreement will begin in 2000 or 2001.6 Total disbursements over twenty years will exceed $240 billion, a huge amount of money by anyone's standards.7
The position advanced in opposition had basically four points: (1) the State was getting far too little; (2) it was giving up far too much; (3) the structured nature of the settlement meant that the State's future interests were aligned with, indeed dependent upon, future success in tobacco sales, an exact reversal of existing health policy; and (4) the kinds of determinations underlying the MSA were essentially legislative, and well beyond the adjudicative and enforcement capabilities of a single judge sitting in a lower court of general jurisdiction. All four of these points will be developed later,8 but the crucial point is the last: litigation is simply not an appropriate vehicle for setting health care policy within a state or across a nation. And yet, on several different fronts, litigation is the means by which we are setting that policy9 as it affects tobacco consumption, quite possibly the nation's leading health concern. Whether a comprehensive tobacco policy is possible may be in doubt; that it is disserved by litigation seems certain.
The MSA was the result of nearly two years of litigation brought by forty-six state Attorneys General in what were called the "Medicaid" cases, wherein the states sued the tobacco companies for the health care injury inflicted by tobacco consumption. 10 The potential impact of these suits on public health and industry was huge. 11 But two other forms of litigation-private and federal-exist as well, and are potentially far more significant.
For the past forty years, private individuals have brought private tort actions against tobacco companies, seeking redress for injuries such as cancer and death.12 Part II of this article examines these suits. Recently, this litigation has begun to show marked success. However, by its nature, private litigation does not adequately address public health concerns, and therefore will not create a comprehensive national tobacco policy. Part III discusses the State Medicaid actions in depth. These suits brought new legal theories, strong litigation resources and involved entities representing the public interest. However, the result of this litigation, the MSA, is far from satisfactory in addressing the wrongs committed by the tobacco industry and in providing sensible public health policy. Part IV examines the recent lawsuit by United States Attorney General, Janet Reno, against the tobacco companies.13 This action is based upon two federal statutes permitting the federal government to recover expenses resulting from tortious misconduct, including Medicare or veterans' benefits paid due to tobacco-related disease and death. Legal weakness in the government's case and tremendous political pressures will likely lead the government to settle on terms favorable to the industry.
Altogether, these three areas of litigation-the state Medicaid litigation, the private litigation and the newly filed federal litigation-pose a real probability of extracting hundreds of billions of dollars from the tobacco industry, with the potential for changing its behavior, as well as compensating its victims. …