Philippe Boucher's Rendez-vous with . . .Dick Daynard
About the 18th conference organized by the Tobacco Products Liability Project Chairman of the Tobacco Products Liability Project Northeastern University School of Law
Rendez-vous with . . .Dick Daynard
Boston, Massachusetts, USA
By Philippe Boucher
Monday, May 6 2002
PB : Thank you Dick for accepting our rendez-vous.
May I ask you to introduce yourself ?
Richard Daynard: I grew up in New York, went to Columbia College and Harvard Law School. Then I clerked for a federal appeals court judge in New York for a year. The following year I was a teaching fellow at Columbia Law School, and got a masters in Sociology. In 1969 I moved permanently to Boston, where I began teaching at Northeastern University School of Law, and also pursued a Ph.D. in Urban Studies and Planning from M.I.T., which I received in 1980. I was teaching Consumer Protection law. At least twice as many people were dying each year from cigarettes than from all other consumer products combined (including automobiles and alcohol). Yet cigarettes were neither regulated nor touched by litigation. I had just become President of GASP of Massachusetts (partly as a result of my interest in nonsmokers' rights), and I discussed with my students how I should proceed. We decided that lawsuits had the potential to force the companies to improve their behavior, while raising prices and thereby lowering demand. Basically, the motivation was to do something to reduce the death toll. After 33 years I'm still teaching at Northeastern.
Q1. What is the tobacco products liability project? when did it start? how does it operate?
Dick Daynard: The Project is designed to encourage lawsuits against tobacco companies as a public health strategy. I founded it (along with a local physician) in 1984, and have chaired it ever since. The Project is located at Northeastern University School of Law, and is part of the Tobacco Control Resource Center. The Project does conferences, runs a website (www.tobacco.neu.edu), and provides information about the litigation strategy to lawyers, policy makers, and the media. We have 10 employees in Boston, 8 of whom are lawyers. Most people are funded under various grants and contracts, but almost everyone has at least a little time to respond to inquiries or come up with new ways to push the envelope in tobacco control.
Q2. You organized on April 26/28 your 18th conference with the title "How to win a just tobacco verdict". Is the conference an annual event? Who attended? What were the main themes of this year's event?
Dick Daynard: The Conference has been held roughly once a year since 1985. This year's Conference was so well attended and so high energy that we're thinking of trying twice a year. There were 100 participants, mostly lawyers bringing their first few cases against the industry, from around the U.S. and several foreign countries. The program featured the lawyers who have won punitive damage verdicts in Jacksonville, Kansas City, Los Angeles, San Francisco, and Portland Oregon. There was a lot of discussion of the "low tar" hoax, which was involved in both the latest Portland victory as well as in class actions in several states. One session was devoted to examining the resources newly available to plaintiffs lawyers, especially documents and transcripts that can be freely accessed on the Web.
Q3. There are various types of tobacco lawsuits, could you name and Shortly describe them? On hears about different waves of litigation ("third wave"), what does that mean? What wave is on now? What's next?
Dick Daynard: The first two waves of tobacco litigation, from 1954 to the early seventies, and from 1982 to the early nineties, suffered from a lack of evidence that the tobacco companies had misbehaved. As a result, the cases generally turned into attacks on the "weak-willed" plaintiff. The incriminating internal documents have made all the difference in the current, "third" wave. Juries now stop listening to the tobacco lawyers' accusations against the smokers when they begin to realize just how outrageously the industry has behaved.
Most lawsuits are filed on behalf of smokers with cigarette-caused diseases, or the relatives of dead smokers. Most of these involve lung cancer, but the recent victory in Kansas City involved peripheral vascular disease. There are also cases involving exposure to secondhand smoke. Class actions are also very important. The settlement in the Florida case involving flight attendants' exposure to secondhand smoke not only set up the Flight Attendants Medical Research Institute but also permitted individual flights attendants to go to court using simplified procedures to collect their personal damages. Dozens of these cases may be tried over the next couple of years. The Engle class action, for all afflicted Florida smokers, has already produced three important verdicts, including one for punitive damages of $144 billion. In addition, several class actions for smokers deceived by "low tar" claims have been certified, and more are pending.
Many more cases are pending in the coming year. A West Virginia case involving 1200 individual plaintiffs, scheduled for trial in the fall, may be particularly interesting. The Department of Justice's RICO case, scheduled for trial in summer 2003, could be a blockbuster, not only generating media attention but with the real potential to force the industry to disgorge accumulated profits ("ill-gotten gains") and to change their way of doing business.
Q4. Is litigation still a big concern for the tobacco industry? Is it still mostly a US affair or is litigation against the tobacco industry growing in other countries as well?
Dick Daynard: Litigation remains the tobacco companies' biggest concern. Despite assurances from Wall Street "analysts" (= stock hawkers) that "the litigation threat is receding", both the number of cases and the average jury awards are growing substantially. The pending cases are, of course, just a "drop in the bucket" compared to the potential number of plaintiffs. The companies know that if even a small percentage file suit, they will be overwhelmed and have to seek help from state legislatures, Congress, or the bankruptcy courts.
American-style lawsuits are proceeding throughout the world. Third-party reimbursement cases, modeled after the state AG litigation, are pending in British Columbia, France, and Israel. Individual cases are proceeding in Australia, Sri Lanka, Japan, Brazil, Ireland, Italy, Norway and Spain. There are also "public interest" cases that generally wouldn't be permitted in the US, where NGO's sue the government to require they enforce the law or the constitution. These have resulted in orders from the Indian Supreme Court establishing nonsmoking rules in public places, and from Mali and Bengladeshi courts requiring their governments to enforce existing tobacco advertising bans.
Q5. The Joseph Moakley memorial fire safe cigarette act was recently introduced. Another act aimed at increased health warnings on the packs. Do you think new regulations could be adopted? Could it bring significant hanges?
Dick Daynard: I am skeptical that important, and non-preemptive, legislation would pass this Congress and be signed by this President. Obviously, Congress could, for example, authorize the FDA to take measures to require that warnings be clear and effective and that only the least incendiary and least toxic nicotine delivery products be permitted to be sold. This could make a real difference, but I don't think it will happen.
Q6. Is there anything else you would like to add?
Dick Daynard: I think I've said enough here, but anyone who wants more information can contact us through our website.
PB: Thank you Dick for taking the time to be with us today.
P.S: the detailed program of the 18th conference is at: http://www.tobacco.neu.edu/conference/index.html
Rendez-vous is supported by a contract from the Robert Wood Johnson Foundation
Go To: Tobacco BBS HomePage / Resources Page / Health Page / Documents Page / Culture Page / Activism Page
END OF DOCUMENT