Seeing the The Global Mosaic of Tobacco Litigation – Professor Richard L. Cupp, Jr. Provides a

Yesterday’s post noted the latest chapter in big tobacco’s many losses in smoking litigation in Florida regarding individual cancers and other injuries. Florida is a real problem for the tobacco industry. So is the Massachusetts Supreme Court’s embrace of low-dose CT scans as medical monitoring appropriate for a subset of smokers and former smokers. But, Florida and Massachusetts are just two parts of a much larger global mosaic of tobacco litigation. No doubt that’s why Philip Morris hired David Bernick away from Kirkland & Ellis to move to Switzerland to run its global litigation.

A valuable resource for seeing the global tobacco litigation mosaic is a recent law review: “International Tobacco Litigation’s Evolution as a United States Torts Law Export: To Canada and Beyond?” ("ITL"). Written by Richard L. Cupp, a Pepperdine law professor and tort scholar, the ITL article is freely available on this page of SSRN, and was last updated February 13, 2011. Professor Cupp’s article begins with a broad survey of tobacco litigation, and then moves to some specific examples of and issues in ITL. Today’s post recaps some of the ITL article’s information on the scope of the litigation. Subsequent posts will address some of the specific points identified by Professor Cupp. The easy to read article should be read as a whole to feel the way that tort litigation is spreading globally, and to feel the examples provides as to the wide range of attitudes and outcomes related to ITL in particular, and tort litigation more generally.

As to the broad scope of tobacco litigation, footnote 18 of ITL describes the “government cost recovery” lawsuits brought by a wide range of nations. According to Professor Cupp and his research team and sources, the governments bringing cost recovery suits are many, and:

“include Argentina, Australia, Bulgaria, Brazil, Canada, Chile, China, Columbia, Costa Rica, Finland, France, French Guiana, Germany, Greenland, India, Ireland, Israel, Italy, Japan, Kazakhstan, Mali, Marshall Islands, Niger, Nigeria, Norway, Pakistan, Philippines, Poland, South Korea, Spain, Sri Lanka, Uganda, United Kingdom, United States, and Venezuela. See Lawrence O. Gostin, The “Tobacco Wars”—Global Litigation Strategies, 298 J. AM. MED. ASS’N 2537, 2537–38 (2007); Richard A. Daynard, Clive Bates & Neil Francey, Tobacco Litigation Worldwide, 320 BRIT. MED. J. 111, 112 (2000); D. Douglas Blanke, Towards Health with Justice: Litigation and Public Inquiries as Tools for Tobacco Control, WHO TOBACCO FREE INITIATIVE, http://www.who.int/tobacco/media/en/final_jordan_report.pdf (last visited Dec. 24, 2010); M.L. Flores et al., Litigation in Argentina: Challenging the Tobacco Industry, 15 TOBACCO CONTROL 90, 90–92 (2006), http://www.bvsde.paho.org/bvsacd/cd42/90.pdf; Andrew Walker, Nigeria Takes on Tobacco Giants, B.B.C. NEWS (Jan. 14, 2008, 0:23.stm; Mackay & Erikson, supra note 16, at 86–87.

Government medical cost recovery litigation of course is not the same as the Engle-type personal injury litigation brought to obtain compensation for individuals. The ITL article covers both categories of litigation. Thus, footnote 19 of the article recaps the nations where individuals have filed suits for diseases caused by smoking. Footnote 19 states:

“Individual lawsuits against tobacco companies have been brought in numerous countries, some of which include Argentina, Ireland, Israel, Finland, France, Japan, Norway, Sri Lanka, Thailand, and Turkey. Daynard, Bates & Francey, supra note 18, at 111. One famous individual case was filed in Norway by Robert Lund who developed lung cancer from working in a smoky bar for fifteen years. See Blanke, supra note 18, at 40. Two other illustrations of these types of cases are Spasic v. Imperial Tobacco and Spasic Estate v. B.A.T. Industries p.l.c., filed in Canada, demanding millions in damages. See Tobacco-Related Litigation in Canada, NON-SMOKERS’ RIGHTS ASSOCIATION 22 (2009), http://www.nsra-adnf.ca/cms/file/pdf/Tobacco_Related_Litigation_in_Canada_ 2009.pdf. As of 2002, there were four private class actions pending in the Canadian Provinces of Ontario, Quebec and British Columbia. See Blanke, supra note 18, at 40. Class actions have also been filed in Australia against the major Australian tobacco companies. Daynard, Bates & Francey, supra note 18, at 112. Health care reimbursement lawsuits have been filed in the Canadian Province of British Columbia, as well as by the governmental health insurance body in France. Id. at 111. The government of the Republic of the Marshall Islands has brought a health care reimbursement case against international tobacco companies that supply the local market. Id. Other countries, including Guatemala, Bolivia, Nicaragua, reimbursement suits pending in federal court in the United States. Id.”


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Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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