Big tobacco is continuing its effort to undo Engle through appeals to SCOTUS. Last fall, big tobacco launched yet another attack. Now, LAW360 reports that 10 new cert petitions were filed this week. The article starts out: 

"Big Tobacco launched an offensive Friday in the U.S. Supreme Court against Engle progeny litigation, asking the court to determine whether the companies’ due process rights were violated when members of the landmark class action were allowed to use findings from that case in their individual suits.

Philip Morris USA Inc., R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co. filed 10 separate petitions for writs of certiorari in the cases that stemmed from the Florida Supreme Court’s 2006 decision in Engle v. Liggett Group Inc., which decertified a class of 700,000 smokers but allowed them to sue the companies independently using the Engle jury’s eight liability findings."

Big tobacco continues to expand its global spreading of death and cancer, this time with Phillip Morris and Japan Tobacco making  major new investments in Russian tobacco sales. A cynic might think big tobacco does not fear increases in lung cancer litigation in Russia. Besides, even if lung cancer litigation does surge in Russia in 30 years,  the profits already will be long gone.  And, the potential asbestos defendants there (such as Uralbest) probably will follow the US model of doing very little to force the lung cancer loss onto big tobacco.  

A new Mother Jones article by Myron Levin provides a cogent summary of the Kent filter story, with links to some interesting old ads run by big tobacco and some other source documents. Claiming against Lorillard seems to be increasing; according to the article:

"While there’s no official count, records and interviews suggest that mesothelioma claims since the 1980s number in the low hundreds at least. Lorillard’s filings with the Securities and Exchange Commission show that it settled 90 cases during a recent period of just over two years, and that another 60 are still pending. Lorillard officials did not reply to emails and calls for this story, and H&V declined interview requests—company lawyer Andrew McElaney did, however, point out that the companies have won most of the cases that went to trial."



Although researchers generally are not interested in litigation, their insights continue to have implications for toxic tort litigation. For example, a recent paper in Oncogene reports on Mayo researchers identifying a mutation biomarker related to one form of lung cancer in smokers. Mayo’s press release is here. The abstract for the paper states the following regarding the observed mutation:

"ASCL1 is an important regulatory transcription factor in pulmonary neuroendocrine (NE) cell development, but its value as a biomarker of NE differentiation in lung adenocarcinoma (AD) and as a potential prognostic biomarker remains unclear. We examined ASCL1 expression in lung cancer samples of varied histologic subtype, clinical outcome and smoking status and compared with expression of traditional NE markers. ASCL1 mRNA expression was found almost exclusively in smokers with AD, in contrast to non-smokers and other lung cancer subtypes. ASCL1 protein expression by immunohistochemical (IHC) analysis correlated best with synaptophysin compared with chromogranin and CD56/NCAM. Analysis of a compendium of 367 microarray-based gene expression profiles in stage I lung adenocarcinomas identified significantly higher expression levels of the RET oncogene in ASCL1-positive tumors (ASCL1+) compared with ASCL1− tumors (q-value <10−9). High levels of RET expression in ASCL1+ but not in ASCL1- tumors was associated with significantly shorter overall survival (OS) in stage 1 (P=0.007) and in all AD (P=0.037). RET protein expression by IHC had an association with OS in the context of ASCL1 expression. In silico gene set analysis and in vitro experiments by ASCL1 shRNA in AD cells with high endogenous expression of ASCL1 and RET implicated ASCL1 as a potential upstream regulator of the RET oncogene. Also, silencing ASCL1 in AD cells markedly reduced cell growth and motility. These results suggest that ASCL1 and RET expression defines a clinically relevant subgroup of ~10% of AD characterized by NE differentiation …" (emphasis added)

Imagine – a smoke free country in Europe. That’s the 2025 goal of the Health Minister in Ireland, although the goal actually is not completely smoke-free and instead is to have smoking down under 5%. Plainly, governments and others are actively realizing that they cannot afford to continue to subsidize the absurdly high financial and human costs of an industry that sells death and disease. The online story includes the following key quotes: 

Lyndsey Telford – 25 July 2013
HEALTH Minister James Reilly has declared war on smoking, saying he wants a tobacco‐free Ireland by 2025.
"It’s the only product I know that is legally, freely available that will kill you if you use it, according to the
manufacturers and so on," Dr Reilly said.
"It’s a fight that we cannot turn away from and that we can’t afford to lose. It’s a battle that will continue
until it’s won and it will be won."
He revealed that a document had been passed by Government, entitled Tobacco‐Free Ireland, which aims to have less than 5% of the population smoking within the next 12 years.
Ireland’s smoking population is currently 29% ‐ well above the average among OECD countries at 21%.
Dr Reilly is to meet a string of campaign groups later today ‐ including the Irish Heart Foundation, the Irish Cancer Society, Barnardo’s and Cystic Fibrosis Ireland ‐ to discuss "the dreadful damage
The Health Minister, in his quarterly meeting with the Joint Oireachtas Committee on Health and Children,
said he also wants to extend the smoking ban.  Ireland became the first country to stop smoking in bars and restaurants with the workplace smoking ban in 2004. This was followed by an end to the sale of 10‐packs in 2007, a ban on retail displays and adverts in 2009, and picture health warnings on packets this year. An extension of the smoking ban could extend from the workplace to public areas such as parks and beaches.
Dr Reilly added that he has officially begun the process of introducing plain cigarette packaging across the country. He first announced Ireland’s plans to become the second country in the world ‐ after Australia ‐ to clampdown on the industry with plain packaging two months ago.

A new post on Eye on the Trials provides a concise summary of the tobacco companies losing a series of defense motions launched at the conclusion of the plaintiff’s case, including a motion to dismiss for lack of evidence. One hopes big tobacco continues to lose on all issues. It’s well past time to end the massive economic and human harms caused by smoking.

In my view, virtually all employers (including my law firm) subsidize big tobacco in several ways. For example, employers pay health  insurance premiums and worker’s compensation payments that are increased because of illness and disease in persons whose immune systems are compromised by their employees who smoke (or did smoke). We likewise collectively eat part of the cost (through income taxes) for free or subsidized low cost medical care provided to smokers via  Medicare, Medicaid and charity care payments. Certainly asbestos defendants are providing major subsidies to tobacco companies as they pay for cancers and non-malignant diseases mainly or exclusively caused by smoking.