Legal

State

Fla. jury awards smoker $21M from Philip Morris (FL)
A Fort Lauderdale, Florida jury has found Philip Morris USA partially responsible for longtime smoker Ellen Tate’s chronic obstructive pulmonary disease (COPD), awarding her over $21 million in damages. The jury put 36% of the responsibility on Tate and the remaining 64% on Philip Morris, making the company responsible for $5.1 million of the $8 million awarded in compensatory damages and over $16 million in punitive damages, which they would be fully responsible for paying. The case is one of the “Engle progeny” cases, stemming from a class-action lawsuit thrown out by the Florida Supreme Court in 2006, and is the eighteenth verdict in favor of plaintiffs from 21 of such cases filed in Florida since February 2009. Click here to read more. Click here to read an update on Florida smokers’ lawsuits which notes that tobacco companies have only won only a handful of verdicts in the Engle progeny cases.

Tobacco suit rules change (FL)
The 11th Circuit Court of Appeals has issued a decision affecting 4,000 Florida “Engle progeny” cases pending in federal court, effectively removing a roadblock that had prevented the smokers’ lawsuits from moving forward. The court decision limits the plaintiffs’ use of findings from the original case, and both the plaintiffs and the tobacco companies are calling the decision a victory. The court determined that plaintiffs bringing an Engle progeny case to federal court must prove individually that the cigarettes they smoked were defective, and the manufacturer withheld information that kept the smoker from understanding the addictive and defective nature of the product. Originally, plaintiffs in state court were automatically allowed to use the findings from the Engle case as evidence, but this ruling means that they must reestablish causation, proving that the initial jury decision pertains to their circumstances. While the decision only applies to cases pending in federal court, some analysts believe that Florida state judges may adopt the rules as well. Click here and here for more information.

Judge allows unusual smoking class-action suit to go forward (MA)
A federal judge in Massachusetts has certified a class-action lawsuit that could force Philip Morris USA to pay for users of its products to get chest scans that can detect early signs of lung cancer. Two years after the class certification request was initiated by two former Marlboro smokers, the certification now allows the case to go to trial and makes it open for other plaintiffs with similar circumstances to join. This case is different from most tobacco lawsuits, which seek damages for disease caused by cigarette smoking, in that the plaintiffs are requesting payment for regular medical monitoring that could increase their chance of survival should they develop lung cancer. Going forward, the plaintiffs will have to prove that Philip Morris is liable for designing a product that delivers excessive levels of carcinogens. Read more here.

Tobacco retailer sues state over classification as cigarette manufacturer (NH)
A tobacconist in New Hampshire is suing the state to dispute the classification of his business as a cigarette manufacturer because of the presence of cigarette rolling machines in stores. At these stores, customers may purchase loose tobacco and then pay a fee to use a rolling machine to make their own cigarettes, which the owner says falls under retail, not manufacturing. The state’s classification of the stores as a manufacturer makes the owner liable for paying into an escrow account, as written in the Master Settlement Agreement. The lawsuit claims that rolling tobacco is already considered a manufactured cigarette, so the escrow obligations should fall on the tobacco manufacturer itself, not the store that sells the tobacco. Another issue being considered in the lawsuit is whether or not cigarettes rolled from loose tobacco should be subject to a cigarette tax in addition to the tobacco tax. A temporary hearing will be held on August 19. Click here to read more.

Judge orders county to return seized Cayuga cigarettes (NY)
A judge in Seneca County, New York has dismissed charges against the Cayuga Indian Nation and ordered the county to return $375,000 worth of cigarettes taken by Seneca and Cayuga county sheriffs in a tax raid in 2008, upholding an earlier Court of Appeals decision. The counties argued that the nation did not have an official reservation, so their stores had violated state law by selling untaxed cigarettes to non-Indian customers. The courts decided that the stores lie on qualified reservation land, making it unnecessary for them to pay state sales taxes. In their decisions, the courts also cited the fact that the state lacked an effective way of collecting these taxes at the time. Both counties are expected to submit appeals to the U.S. Supreme Court. The Cayugas are planning to sue Seneca and Cayuga Counties for $500,000 in compensation for the expired confiscated cigarettes, which can no longer be sold. Click here to read more.

Seneca cigarette sellers get reprieve from law (NY)
A U.S. District Judge has issued a temporary restraining order directing federal officials not to enforce a law prohibiting the U.S. Postal Service from delivering cigarettes against businesses associated with the Seneca Fair Trade Association. Members of the group, which includes about 140 retailers, argue that the Prevent All Cigarette Trafficking (PACT) Act is unconstitutional in that it prevents the USPS from delivering a legal product and that enforcement of the Act would cause a loss of over 3,000 jobs at Seneca-owned businesses. After hearing legal arguments from the Seneca business owners and the U.S. Justice Department, Judge Arcara extended the restraining order until July 30. Click here or here to read more.

Tobacco companies sue NYC over signs, delay Mass. Effort (NY, MA)
New York City’s groundbreaking new law requiring tobacco retailers to post graphic antismoking signs has prompted lawsuits from the tobacco industry. The lawsuit has delayed the passage of a similar law in Massachusetts. New York City was the first locality to require antismoking warnings at the point of purchase, and Massachusetts would become the first state to pass such a law. The initial hearing of the New York case will be held on October 14. While the Massachusetts Public Health Council initially expressed support for the law in advance of a vote, the state will wait to take action until after a legal precedent is set in New York. Read more here.

Supreme Court sends tobacco case back to lower court for reevaluation (OR)
The Oregon Supreme Court has decided that Philip Morris does not have to pay $100 million in punitive damages to the family of a deceased smoker because the jury was not adequately instructed on the constitutional limits of punitive damage awards. Based on a precedent established by the U.S. Supreme Court, the Oregon Supreme Court concluded that a jury can only use harms suffered by those other than the plaintiff or the impact on people in other states to determine the reprehensibility of the defendant’s actions, not the amount to be awarded through punitive damages. Because the jurors in this case were not explicitly given that instruction, the Court decided that the case should go to another jury to determine how much the company should pay the plaintiff’s family. Click here to read more.

Pa. court sides with cops over on-duty tobacco use (PA)
The Pennsylvania Supreme Court has decided that local-level laws will have limited application to on-the-job tobacco use among members of a police union in western Pennsylvania, unless agreed to via contract negotiations. The ruling overturns a 2008 court decision that upheld a complete ban on tobacco use in Ellwood City on the grounds that the ban was a legal use of the borough’s police powers, and protected the health and welfare of its residents. The Supreme Court opinion ruled that the since the law constitutes a working condition as it pertains to the police officers’ union, bargaining must be used to negotiate the terms of its application. Officers will still be held to the Pennsylvania Clean Indoor Air Act of 2008, which prohibits smoking in public places, including public facilities, employee work places, and mass transit vehicles. Click here to read more.

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International

WTO to rule on U.S. clove cigarette ban
Indonesia has been granted a request for the World Trade Organization (WTO) to rule on a dispute over the U.S. ban on clove-flavored cigarettes, following a series of failed negotiations between the two nations. Due to concerns over the appeal of flavored tobacco for young people, all flavored cigarettes were banned from the U.S. last year, with the exception of menthol. Indonesian trade officials say that this law is unfair, as it prohibits the importation of their country’s clove cigarettes, which account for less than 0.1% of U.S. cigarette consumption, while U.S. manufacturers are still free to distribute menthol cigarettes, which make up 28% of consumption. The WTO’s dispute settlement body will create a panel that will make a ruling in the near future. Read more here.

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