Tobacco's legal battles crossing U.S. borders
After the mother of Slawomir Lubicz-Sienicki died of lung cancer, the Polish man looked an ocean away for justice.
He sued a subsidiary of U.S. tobacco giant Philip Morris Co. and Tobacco Industry Works in Radom, Poland, for 10 million zlotys -- about $2.32 million.
His claim: Marlboro cigarettes along with the Polish brand Popularne killed his mother.
A district court in Krakow recently dismissed the case, which Lubicz-Sienicki is appealing.
''I have heard that in the United States people win such cases,'' Judge Andrzej Almert told the Associated Press when the case was filed. ''But that's a different law, a different procedure and a different mentality.''
That attitude is exactly what officials with Philip Morris want to hear. The industry is reeling from a wave of legal action in U.S. courts, from the $206 billion settlement with the states two years ago over the public costs of treating sick smokers to the recent $145 billion jury award to sick smokers and their families in a class-action lawsuit in Florida.
Now, the legal assault on the industry is spreading across U.S. borders, with Lubicz-Sienicki's case just one of 45 smoking and health cases pending against Philip Morris outside the United States. That's more than double the 20 cases that were pending against the nation's largest cigarette manufacturer in 1998, according to the company's filings with the Securities and Exchange Commission. Three years ago, there were just two smoking and health cases pending against Philip Morris outside the United States.
''The heat has been turned up on the tobacco industry all around the world, and waters are sort of bubbling everywhere,'' said Richard Daynard, a law professor and the chairman of the Tobacco Products Liability Project at Northeastern University in Boston.
Philip Morris is the main U.S. cigarette company exposed to the international lawsuits because it is the most global. Company officials did not return phone calls.
R.J. Reynolds Tobacco Co. has no cases pending outside the United States, according to its Securities and Exchange Commission filing. That's because when it sold its foreign tobacco business to Japan Tobacco, liability in international cases shifted with the sale, said Doug Cogan, the director of the Tobacco Information Service for the Investor Responsibility Research Center, a Washington clearinghouse of information for corporations and shareholders.
Some experts predict that many of the cases will end up dismissed like Lubicz-Sienicki's case. They also expect that unlike Lubicz-Sienicki, plaintiffs will be reluctant to appeal. In many foreign judicial systems, plaintiffs must pay both plaintiff and defendant attorney fees if they lose. In addition, many foreign courts don't allow punitive damages such as the $145 billion jury award in Florida.
Those factors, experts say, scare lawyers away from taking on potential cases in countries where litigation isn't as common as in the United States.
''The lawyers need incentive (and) punitive damages provide tremendous incentive,'' said Farrell Delman, the president of Tobacco Merchants Association, an organization of leaf dealers, cigarette manufacturers, securities firms and others with an interest in tobacco.
CLASS-ACTION LAWSUITS also are often not allowed or encouraged in foreign judicial systems, making it even more difficult for plaintiffs to target tobacco companies. ''It's going to be hard for any other country to have the monumental cases that we've had here in the U.S.,'' Cogan said.
But Daynard, the Northeastern law professor, is much more optimistic about the success of international cases against cigarette manufacturers. ''If one can demonstrate that the companies knew about the dangers and were lying about what they knew and that led to injuries, death and so forth, I think in any system in the world that's basis for legal recovery,'' he said.
The first cases in this country were brought in 1954, he said, but it took 40 years for them to be successful. Tobacco-industry whistleblowers who have testified in U.S. trials and once-secret documents used in U.S. court proceedings will help plaintiffs around the world, he said.
''There are millions of pages of documents, and people are beginning to go through them very carefully,'' Daynard said. ''I think we're going to see a sort of geometric increase in that neighboring countries will say, 'Ah, we should get into this.' This is not something that the tobacco companies are simply going to be able to squash.''