happened lvith asbestos litigation, courts facing the problem of clearing large numbers of tobacco cases off their dockets \~ould need to find \va\`s to expedite them. Firm trial deadlines, case consolidations, and class actions would likely be favored; scorched earth defense tactics would no longer be permitted. Defei~- dants -rvould no longer be able to focus all their atten- tion and legal resources on defeating a febv plaintiffs. Some cases thus might break through the industry's defenses, and these victories lvould provide both prac- tical examples and moral support for plaintiffs' attor- neys. At some point, the defendants might realize that their nonsettlement policy had ceased to discourage plaintiffs and should begin settling. At that point, the third M'ave of tobacco litigation-virtually a tidal Mave-\vould have begun (Davnard 1994a). Given a pre-1994 legal en\,ironment characterized by a low volume of tobacco litigation, felt lawyers could afford to ignore the highly unfavorable cost/ benefit ratio that i~ould likely meet any effort to bring a lawsuit against the tobacco industry. No single law- ver, howe\,er motivated, could hope to change this situ- ation through his or her OM'II efforts. The transition from the low-\.olume to the high-\.olurne scenario l~ould require public events that signaled clearlv to lawyers that the en\-ironment \vas changing (Daynard 1994a). Paradoxically, although the Cifwllr~rlc~ case lvas Midely vie\yed as emblematic of I\-hv plaintiffs' attor- neys \vere M'ell advised to avoid tobacco litigation, it was also a crucial forerunner for the e\,ents that \t-ould soon change the litigation en\?ronment. Specifically, the Supreme Court's 1992 decision in the cnse- though of no a\-ail to the resource-depleted plaintiffs' attornevs-presented other plaintiffs' attorneys tvith a range-of potentially de\.astating legal theories. The trial itself had provided documentary elpidence- lvhich, as it turned out, represented the tip of the iceberg-that could be used to help establish the ele- ments of a plaintiff's claims against the cigarette manu- facturers (Daynard and Morin 1988; Daynard 1993a,b). Among the legal theories ad\.anced in the first twro \vaves that remained viable after Ci/~~~//r~rl~ lvere (1) a theory that cigarettes Ip-ere defectif,e and unnec- essarily dangerous, because evidence disco\,ered b! plaintiffs' attorneys and antismoking activists strongly suggested that the tobacco industrv had kno\vn for manv vears hoM. to make cigarettes &at nere less likely to cause cancer; (2) a theory that cigarettes \yere defecti\,e, because the\, contained tobacco adulterated \yith many nontobacco carcinogenic substances; (3) a theory that cigarettes \1-ere defective, because of the dangers inherent to tobacco; (4) a theory of ci\?l con- spiracv based on evidence that cigarette manufactur- ers had joined together beginning in the 1950s to plan and carry out a strategy for marketing cigarettes while concealing the harmful and addictive nature of this product in the face of the developing scientific evidence of their dangers; and (5) a "Good Samaritan" theory, I\rhereby plaintiffs could argue that the tobacco com- panies, having pledged in 1954 to objectively investi- gate the possible dangers of smoking, were obliged to carry out their promise and take reasonable action on what they found (Daynard 1988). Potential support for some or all of these ap- proaches had surfaced during the tortuous process of the Ci@lorw case. Documents uncovered in the case prol,ided evidence that the tobacco industry had fraudulently misrepresented the safety of their prod- uct and deliberately concealed knowledge about the harmful and addictive nature of cigarettes. The ev- dence suggested that the tobacco industry had con- spired to defraud the American public by pretending that it l,vas conducting good-faith efforts to uncover the links between smoking and health and by falsely assuring the public that the results were negative or inconclusi\re (Davnard and Morin 1988). Some ana- lysts predicted that future fraud and conspiracy claims \2-ould be strengthened when the court documents from Nrrirl~s \vere released to plaintiffs' attorneys or \vhen other documentary evidence of tobacco indus- try misdeeds was uncovered (Daynard 1993a,b). In the additional trove of documents reviewed by Judge H. Lee Sarokin in Hr7irlc,s--many of them relating to the Council for Tobacco Research's "special projects" di\?sion-i,vas information that might support a find- ing that "the industry research which might indict smoking as a cause of illness was diverted to secret research projects and that the publicized efforts were primarily directed at finding causes other than smok- ing for the illnesses being attributed to it" (Hnirlus ~7. L;!/r~olds fi&ncco CP., No. 94- 08273 CA [XI] (Fla., Dade Cty. Oct. 31, lYY4], cifd i\z 9.5 TPLR 2.147 [1994], (7ff'ij 672 So. 3d 39 [lY%]), seeks damages for the full range of costs that flo~v from tobacco-caused diseases. The C~75tt7r10 case in\,olws a much larger number of plaintiffs than E~r~q/c~, but each plaintiff seeks a much smaller recol-cry To date, both Ca.ita/w and E/~Slc~-t~pe claims ha1.e been brought under the more complex Rule 23(b)(3) class action procedures designed for the resolution of indi\?dual claims that share common legal or factual issues. Courts have generallv been reluctant to allow these procedures for Gsff7rlo-type claims, \zith the courts particularly concerned about the individualized proceedings on behalf of millions of addicted smok- ers, each making relatively small claims, that \vould follow from a favorable resolution of the common is- sues (Cnst~~rzo 7'. Ar~wic-nrz Toh7c~o Co., 85 F.3d 734 [5th Cir. 19961; Srr~ll ~1. Loriflnni 72~twcca Co., 1998 WL 398176 [N.Y.A.D. 1 Dept. July 16, 19981; Rilrr~ljs 71. A,rlcricnr~ T'd~acco Co., No. (X-5903 [E.D. Pa. Aug. 22, 19973, \`a- cated 176 F.R.D. 479 [1997], iitcll ii1 12.4 TPLR 2.227 (19971). The possibility oi using the simpler class ac- tion procedure for Cas~~~w-type claims, lvhich Mould seek a single judicial order setting up an insurance- tvpe fund that claimants could draw on as they used addiction-related medical or pharmaceutical ser\?ces, has not been fully explored. By contrast, courts have been more lvilling to permit Rule 23(b)(3)-type proce- dures for Ellgle-type claims, where class action proce- dures promise to simplify the trials of a smaller (but still very large) number of serious individual claims E/qle, 672 So. 2d 39; Bur,ir~ u. Philip Morris Cos., No. 92- 1405 [Fla., Dade Cty. Mar. 15, 19941, cited irr 9.1 TPLR 2.1 119941; Richnvdsoll ZJ. Philip Morris, luc., No. 9614505O/CE212596 [Md. Cir. Ct. Baltimore City Jan. 28, 19981). For a class action of either type to be certified, iour technical requirements must be met. First, the members of the proposed plaintiff class must be so numerous that joining each plaintiff to the suit would be impractical. Second, the claims of each member of the class must turn on some questions of law or fact that are common to all the members of the class. Third, claims of the class representatives must not be antago- nistic to those of the other members of the class. Fourth, the representative plaintiffs and their attorneys must be able to fairly and adequately represent the interests of the entire class (Federal Rules of Civil Pro- cedure, Rule 23[a]). Where members of the class have conflicting interests, the class may be divided into sub- classes represented by different attorneys (Federal Rules of Civil Procedure, Rule 23[c][4][A]). Besides meeting these four requirements, a Rule 23(b)(3) class action needs to surmount two other sig- nificant hurdles. First, the court must determine that the action is "manageable," meaning that a reasonable plan for trying the entire case, including the individual claims, can be devised. Second, the common issues must "predominate" ol'er the individual issues, leav- ing the court to make the judgment whether the hen= efits likely to be obtained from trying the case as a class action outweigh the difficulties likely to be encoun- tered in doing so (Federal Rules of Civil Procedures, Rule 23[b][3]). Once a Rule 23(b)(3) class is certified, the class representatives must undertake the onerous and ex- pensii,e process of notifying each member of the class. This is necessary because Rule 23(b)(3) class members have the significant right to opt out of the class and pursue their claims individually. The class action device soives the problem 01 aggregation, reduces the imbalance of resources often found between the parties, achieves economies of scale and avoids duplicative litigation. The great advan- tage of the class actions being pursued in the third M'ave of tobacco litigation is that resources arc expended on behalf of thousands or millions oi clasr members rather than on behalf of a single individua (Kelder and Daynard 1997). This advantage provide! more of a level playing field and means that thf tobacco companies b4ll not be able to successfull~~ pur- sue their usual first- and second-LVal-e strategy of forc- ing opponents to spend exorbitant suins of nione\ until, nearlv bankrupted, the\ are forced to I\-ithdral\ (Kelder anA Daynard 19971.. In its unanimous deci- sion, the appellate court in Bwir~, after considering and rejecting defense objections to the plaintiffs' request for class certification, alluded to the great promise that the class action strategy holds for plaintiffs challeng- ing the tobacco industr\r: ". if \ve \vere to construt' the rule to require each person to file a separattl la\\,- suit, the result 1Vould be o\~er\~helinin;: and financiall\, prohibiti\,e. Although defendants ~vould not lath tlli> financial resources to defend each separate la\\-suit, the t.ast major-itv of class niemberh, in less ad\.dnta~cwus financial positions, ~voulcl he depri~~t~d of 4 rcwied\. We decline to promote such a result" ([ivcjiri, ~-rf(`il ii7 9.1 TPLR 2.4). But \zith these benefits come ne\\. problems. Only coninion issues can be dealt \I-ith in d class pr<1- reeding, thus leal.ing incli\.iduali/ed features to Lw dealt \Vith in separate trials. As noted, some or indn\ potential class members may choose to opt out of thi> class to pursue indi\~idual cases, thcrebv reducin;: the ad\.antage of eliminating duplicatix e litigation. If wine class members are more se\.erel\, injured than others, intractable conflict niav arise ol.er distributing the proceeds (Coffee 1986, 1987). If the injur\, is con- tinuing outside the class, as it is in the case of tobacco use, there is the problem of providing for future plain- tiffs (Hensler and Peterson lYY3). These problems are o\.erlaid and compounded bv issues in\.ol\,ing the le- gal agents representing the plaintiffs. Class actions are organized and managed bv entrepreneurial la\v- vers, and their interests and those of the client class mav diverge (Coffee 1986). Finally, there is the dan- ger-that the class action de\?ce ele\,ates the stakes so high that defendants and plaintiffs settle \vithout reso- lution of other (nonmonetarv) merits of the claim. Just t\.hich of these problems aresufficiently salient to dis- courage use of the class action device in the several 1 arieties of tobacco cases is still an issue. C~starzo ~1. A~wicnrl Tobm-c-o Co., filed March 2Y, 1993, in federal court in New, Orleans (MacLachlan IYY4-951, was an unparalleled attempt by a coalition of traditional plaintiffs' Ialvyers, mass disaster lalvvers, and class action specialists from around the country to diminish the organizational advantages enjoved by the tobacco industrv during the first two waves bf tobacco litigation. Each'of a coalition of 62 law firms pledged s100,OOO annuallv to fund a massive class action suit, ~`11 behalf of millions of nicotine-dependent smokers, charging the tobacco industr\, tvith promoting addiction and thus disabling smokers from quitting (Janofsky lYY-la; Shapiro lY91a; Curriden 1995). The plaintiffs requested damages for economic losses and emotional distress, as \2-ell as medical monitoring and injuncti\-e relief. In Februarv 1995, the district court granted the plaintiffs' request for class certification conditionall\~ and in part (Ci7rt~7r70, citc>il ij~ 10.1 TPLR 2.1). Judge Okla Jones II granted certification for is- sues of fraud, breach of warrantv (express or implied), intentional tort, negligence, stiict liability, and con- sumer protection issues. Certification was denied for other issues, including the questions of causation, in- jury,., and defenses regarding the claims of each smoker. Normally, a trial judge's decision to certify a class is not subject to re\.ie\\, bv a higher court until the trial court has reached a final disposition of the Ivhole case, \\.hich max. be vears later. But Judge Jones in Cat;tnfm granted sieciai permission to allo\~ the defendants to appeal his class certification decision to the United States Court of Appeals for the Fifth Circuit (Collins 19Y)sc). On May 23, 1996, a three-judge panel of the appellate court \.acated Judge Jones' decision and re- manded the case back to the district court M'ith instruc- tions to dismiss the class action. The court of appeals reasoned that the variations in the state laws of the SO states in \vhich the injuries occurred classwide, com- bined Lvith trial management problems not addressed by the district court, justified decertification of the nationrvide class (Cnsfarw, X4 F.3d 734). The coalition of labvyers that forlned around C~7stor7o opted to pursue another approach and began to file stateM-ide class actions shortly after the decerti- fication bv the court of appeals. Bv mid-1998, the coa- lition hack filed 26 such cases (To&y 1998). Another class action, Errg/c P. R.1. Rcyr&ds ~)hncco Co., No. 9408273 CA (20) (Fla., Dade Cty.), cited ill 9.3 TPLR 3.293 (1994), filed in a Florida state court May 5, 1993, on behalf of smokers suffering from "diseases like lung cancer and emphysema," sought billions of dollars in damages from the seven leading tobacco companies, the Council for Tobacco Research U.S.A. Inc., and the Tobacco Institute, a tobacco-financed public relations association (Janofsky lYY4a, p. 11). The suit alleged that by denying that smoking is addictive and by suppressing research on the hazards of smok- ing, the tobacco industry has deceived the public about the dangers of using tobacco products (Janofsky 1994~). On October 31, 1993, E,Is/P, filed by a personal injury la\vver ~`110 chose to remain apart from the Crr.stnw coalition, had the distinction of becoming the first tobacco-related class action laxvsuit to be granted class certification (EIIS/U P. R.]. RI'L/IIO/I~S 7?h~-c-c~ Co., No. Y4- (IX273 CA [XI [Fla.. Dade Ctv. Oct. 31, IY`H], iif~il ir7 Y.5 TPLR 2.117 [199-l]). When the defendants sought to oirerturn the class certification, the Florida Supreme Court upheld it, pairing the \vay for the case to go to trial (R.1. Rr~/rzolds Co. ~7. Elr~lc, 672 So. 2d 39 [Fla. Ct. App. 19961). A jury selection for the trial began on July 6, 1998 (Eior~or~ist 1998). Recovery Claims by Third-Party Health Care Payers In the late 197Os, a number of scholars and advo- cates began urging legal theories and statutory reforms that would permit third-party health care payers to col- lect the expenses of caring for tobacco-caused disease from the manufacturers themselves (Garner 1977; Daynard 1993a,b, 1994a; Gangarosa et al. 1994). Such claims involve complex questions about ascertaining the amount of tobacco-caused injury and the apportionment of damages attributable to each defendant. The stakes in these potential cases are undoubtedly large: one study estimates that 7.1 percent of total medical care expenditures in the CTnited States is attributable to smoking-related illnesses (CDC 1994~). Another study estimates that tobacco use is responsible for about 18 percent of all Medicaid expenses (Clymer 1994). How- ever, calculation of such effects invites the counter- argument (albeit amoral) that tobacco's costs to the state are offset in part by the savings afforded bv the prema- - ture deaths of smokers (Geyelin 1995). Beginning in 1994, the go\rernments of three states-Minnesota, Mississippi, and West Virginia- as well as Blue Cross and Blue Shield of Minnesota, filed lawsuits to secure reimbursement from the tobacco industry for health care expenditures for ail- ments arising from tobacco use. Three years later, 11 states had filed such legal actions. Since this settle- ment has not vet been embodied in the congressional legislation necessary to give it the force of lalv (see "Legislative Developments" and "Master Settlement Agreement," earlier in this chapter), four states- Florida, Minnesota, MississipQi, and Texas-have settled their claims with the tobacco industrv. Addi- tional third-party payers-such as labor union pen- sion funds and Blue Cross and Blue Shield plans (whose joint case is described in detail in "Common- Law Claims," earlier in this chapter) in states other than Minnesota-also began to file suit against the industry in 1997 and 1998. Medicaid Reimbursement Cases Mississippi filed suit on May 23, 1994, against tobacco manufacturers, wholesalers, and trade groups on the basis of common-law theories of restitution, unjust enrichment, and nuisance to recover the state's outlays for treating the tobacco-related illnesses of welfare recipients (Janofsky 1994a; Woo 1994~; Moore ~1. Anwicnrz Tobacco Co., Cause No. 94:1429 [Miss., Jack- son Cty. Feb. 21, 19951, riterl ~JI 10.1 TPLR 2.13 [1995]). The first state to do so, Mississippi, embraced a strat- egy that merited the attention of other third-party claimants. Rather than proceeding in a trial court on a theory of subrogation (whereby the state would have acted in the place of injured smokers to recover claims the state had paid to those smokers), Moore chose to proceed in equity (i.e., before a single judge in a nonjury proceeding) on theories of unjust enrichment and restitution (Kelder and Daynard 1997). Moour's equity claims were grounded in the notion developed in the literature that the State of Mississippi had been injured directly by the behavior of the tobacco industry because Mississippi`s taxpayers had been forced to pay the state's Medicaid costs due to tobacco-related illnesses. The state planned to use statistical analysis to il- lustrate the percentage of Medicaid costs that can be attributed to tobacco use. If the lawsuit succeeded, the defendants would pay for Medicaid costs under a formula that calculates liability according to market share (Lew 1994). The lawsuit sought tens of millions of dollars in damages, including punitive damages as ~vell as recoverv for future tobacco-related expendi- tures (Woo 1994~). Lawyers from 11 private plaintiffs' la\\, firms participated in the suit. Instead of Qromis- ing the private lawyers a percentage of the potential damages, the state sought to compel the tobacco com- Qanies to Qav the lalvvers' fees (Woo 1994~). SuQerficially, th;s state case (and that of other states) resembled subrogation claims, in which a party 11-110 Qays a claim (tvyically an insurer) may pursue that claim, acting in ;he place of the original claimant and subject to the defenses that might be raised against him or her. But the Mississippi complaint avoided asserting the claims of the health care recipients; in- stead, it asserted the proprietary claims of the state as a health care funder (distinct from any claims of those tvhose health was injured by tobacco). This proprietary stance is significant because, as detailed earlier in this section, the tobacco companies M'on many of the first- and second-wave cases by as- serting the defenses of assumption of risk and con- tributory negligence or by asserting that the smoker's w+llfulness, not the industry's misbehavior, was the proximate cause of the smoker's smoking and conse- quent illness. These defenses should not be available to the tobacco industry in medical cost reimbursement wits because these suits are not brought on behalf of injured smokers. They are brought, instead, on behalf of the states themselves to recol'er the medical costs they have been forced to pay to care for indigent smok- ers. The tobacco industry cannot plausibly argue that the states chose to smoke or that they contributed to the financial harm caused to them (Daynard 1994b; Kelder and Davnard 1997). The decision in the Mississippi medical cost re- imbursement suit demonstrates that this commonsense argument can prevail, even in states that lack sQecia1 legislation that creates an independent cause of action for the state. The tobacco industrv defendants in Mtu)rt' ;I. .-ln~c~.icnrf E~Iwrco Co. filed a m&ion for judgment on the pleadings on October 11, 1993. The defendants argued that, under MississipQi lalv, assignment/sub- rogation \vas the state's exclusi\,e remedy for Qursw ing the recoverv of medical benefits from potentialI>- liable third parties. Further, the defendants argued that because Mississippi's counts for restitution, indemnit!; and nuisance in the complaint did not assert a subro- il i/z 13.2 TPLR 2.112): o Disband the Council for Tobacco Research. . . . . . . . . . . . . Not pay for tobacco placement for mo\ies (a pro- vision that inherently extends hevond Minnesota's borders). Stop offering or selling in .Minnesota nontobacco merchandise, such as jackets, caps, and T-shirts, bearing the name or logo of tobacco brands. Remove all tobacco billboards in Mimiesota within six months and eliminate such ads on buses, taxis, and bus shelters. Refrain from targeting minors in future advertis- ing and promotions. Refrain from misrepresenting the evidence on smoking and health. Refrain from opposing in Minnesota certain new la\vs designed to reduce youth tobacco use, as well as clean indoor air laws that could adversely affect the industry. Institute new lobbying disclosure rules for Minnesota. Release internal indexes to millions of previously secret industry documents, thereby providing a means for attorneys and researchers to find relevant information more easilv. Maintain at industry expense for 10 years a deposi- tory of millions of tobacco documents in Minne- apolis and another such depositor\, in Great Britain. Instruct retailers in Minnesota to move cigarettes behind the counter to restrict minors' access to those cigarettes. Pay out SllO million in fees to the pri\.ate attor- neys \~ho represented the plaintiffs. Gi1.e Minnesota its Olin MFN clause, limited to improi.ed public health pro\-isions in future state settlements. Through the MFN process, many of the public health concessions that Minnesota obtained from the industry are also being incorporated in the prior state agreem;nts (Branson 1998). The Florida case (f lori[fl? 7'. ,;2/11~`rjt~/r Tr&~~cct~ Crl., No, 95-1166AO [Fla., Palm Beach Cty. Feb. 21, 19951, c-if~~j i/l 10.1 TPLR 3.1 119951 [Complaint]; Geyelin 1995) was the first conforming \vith a statute tailored for the purpose of establishin, 0 such a claim. In Mav 1994, Florida amended this little-used statute, \vhi& pro- \-ided for recoverv bv the state from third parties responsible for Medicaid costs, to permit the state to sue on behalf of the entire class of smokers on Medic- aid, tc, dse statistical proof of causation, to bar assump- tion of risk as a defense, and to permit recovery according to the defendants' share of the cigarette mar- ket (Rohter 1994; Woo 1994a). Apparently having sec- ond thoughts about the statute (which had passed by a wide margin), the state legislature considered repeal- ing it, eliciting a vow from Florida's Governor Lawton Chiles to veto a repeal (Hwang 1995a). After an un- successful last-minute attempt by the tobacco compa- nies to have the Florida Supreme Court bar state- agencies from initiating a lawsuit under the statute,- Florida filed its medical cost reimbursement suit on February 21,1995, seeking $4.4 billion (Florida, citcn ill 10.1 TPLR 3.1; Geyelin 1995). The complaint in the Florida lawsuit contains extended factual allegations regarding the defendants' knowledge (or lack of knowledge) about the harmful-- ness of tobacco. Raising the familiar causes of action, the complaint also emphasizes the tobacco industry's alleged violations of consumer protection laws. Spe- cifically, it criticizes the industry's use of advertising to target minors. The Florida Supreme Court narrowly upheld the liability law, on which the state's case is based, in a 3 to 3 ruling that produced equivocal results for both sides. The court agreed with the defendants that the state could only use the law to recover damages in- curred since July 1, 1994, and that the names of indi- vidual Medicaid recipients would have to be supplied- so that the tobacco companies could challenge their- claims (il~c~,lr!/ fin Hmltl7 Cnw Arin~i~7isfmfltior7 ZJ. Asod- ~ltcll I~~tllr~fr~ic~ of Flrjrilla, 678 So. 2d 1239 [Fla. 19963). But the majority decision left most of the law's key provisions intact. The presiding state circuit court judge, Harold J. Cohen, next ordered both parties to try to resol\,e the dispute by engaging in mediation, ivhich broke off after four days and produced no re- sults (Kennedy 1996). Judge Cohen then dismissed 15 counts of the state's 1%count claim against the tobacco industry in a ruling issued September 1996 (Floriiln P. AIIIPV~~~/I Ebnc-co CU., No. CL 95-1466 AH [Fla., Palm Beach Cty. Sept. 16,1996]). The following month, ho\v; ef'er, he rejected the defendants' request to depose the hundreds of thousands of Medicaid recipients supplied to the court by the state in compliance with the supreme court decision. The judge held that the hundreds of thousands of recipients need only be iden- tified by case number, not by name (Florirln ~1. A~wi- ~1711 7i,b[7i-cc~ Co., No. CL 95-1466 AH [Fla., Palm Beach Cty Oct. 18, 39963, citcrl i/l 11.7 TPLR 2.236 [1996]). 11~ yet another setback for the defendants, Judge Cohen permitted the state to add a count of racketeering to its claim (MacLachlan 1996-1997). Florida settled its case on August 25,1997, for at least $11 billion o\-er 25 years, \vith annual payments of at least $340 million continuing thereafter. It ob- tained its own MFN clause, as \vell as an additional 5200 million for a tlvo-year initiative to reduce youth smoking, an agreement to ban cigarette billboards and transit advertisements, and an agreement by the in- dustr!, to lobby for a ban on cigarette \.ending ma- chines. As a consequence of Mississippi's MFN clause, Florida received similar benefits. The Texas suit \vas inno\.atil.e in that it was brought in federal rather than state court. The case 12-as also the first to include claims under the federal RICOAct. On Januarv 16,1998, Texas settled its claims for at least $14.5 billion o\-er 25 vears. \j,ith annual payments of at least 5580 million continuing thereaf- ter, as xvell as public health provisions similar to those negotiated bv Florida and its o\j.n MFN clause. Although West Virginia \\.as one of the first three states to file a suit against the tobacco companies, its case did not fare as neatlv as those of Mississippi, Clin- nesota, and the later-arri\.ed Florida and Texas. Filed on September 20, 1994 (McGnm~ ~1. A~~wim~~ Tohcc-o Co., No. 94-1707 [W.Va. Cir. Ct. Kanal\ha Cty. Sept. 20, 19941, citc~d i,l 9.4 TPLR 3.516 [1994]), West Virginia's suit named 23 defendants, including Kimberlv-Clark Corporation, de\,eloper of a process once ised in Europe-but never, according to a company spokes- person, in the United States-to control nicotine lev- els in tobacco products (Hrvang and Ono 19951, and United States Tobacco Company, the largest manufac- turer of chewing tobacco and snuff. The West Virginia action "asks the Court for damages to cover \vhat West Virginia has paid providing medical care to people af- flicted M.ith tobacco-related illness, and what the state will pav in the future for tobacco victims. The lalvsuit i also seeks punitive damages to prevent a repetition of such conduct in the future" (West Virginia Attorney General 1994, p. 2). Citing an "intentional and LIIICOII- scionable campaign to promote the distribution and sale of cigarettes to children," the complaint also re- quires that the defendants be enjoined from "aiding, abetting or encouraging the sale of cigarettes to minors" (p. 4) and be fined $10,000 for each violation of the injunction. West Virginia's complaint is signed hv lawyers from five private firms, including a promi- nent asbestos litigation firm that is also involved in the Mississippi case. Unlike the Mississippi and Minnesota claims, the West Virginia case met M'itli early difficulties. On kqa!: 3, 1995, Kanawha Countv Circuit Court Judge Irene C. Berger dismissed 8 of the suit's 10 counts, including fraud, misrepresentation, and conspiracy, as being outside of the state attorney general's powers. Ironically, Berger's decision is based in part on a decision that Attorney General Darrell V. McGraw Jr. himself, the named plaintiff in the suit, authored when he srr\,ed on West Virginia's Supreme Court, holding that the state attorney general lacked common-law authority (i.e., he could bring only statutory claims). The t\vo remaining counts of the West Virginia action dealt lvith consumer and antitrust charges (Mac- Lachlan 1995a). On May 13, 1996, Judge Berger permitted the West Virginia Public Employees Insurance Agency Fi- nance Board to join as co-plaintiffs. This ruling "es- sentiallv re\-i\-ed" (Meol~y'.~ Litipfiorr Rrprfs: Thcco 1996`~) the case by pro\.id;ng the state with a means of hiring legal counsel after the tobacco companies won an October 1995 order barring the attorney general from retaining priorate law firms on a contingency fee basis (MacLachlan 1995a,b,c). Among the numerous other states currently try- ing to recoup Medicare expenditures, Oklahoma stands out for an innovation in its suit. The Oklahoma suit names, among other defendants, three industry lalv firms: Shook, Hardy and Bacon of Kansas City, Missouri; Jacob, Medinger and Finnegan of New York; and Chadbourne and Parke of New York. Shook, Hardy and Bacon has represented tobacco companies since 1953 (Kelder and Daynard 1997). The suit ac- cuses the la\v firms of helping the tobacco companies conceal the health risks of smoking and alleges they kept documents confidential by falsely claiming they lverc protected by attorney-client privilege (Oklnhon7n iI. R.]. Rc!/rlol[l~ Tobncccl CO., NO. CJ961499L [Okla., Cle\.eland Cty. ALIT. 22, 19961, citeii in 11.7 TPLR 3.901 [19961). Other notable settlements mentioned earlier in this chapter include the Liggett Group Inc.`s 1997 settlement with most of the states, in return for a frac- tion of future profits, public admissions of the dan- gers and addictiveness of nicotine and the past misbehairior of the industry, and disclosure of secret industrv documents (Tohocco Products Lifipfiorr Re- ,t~ortcr 1497a). The same year brought in another key settlement-that of R.J. Reynolds Tobacco Company and a dozen California cities and counties, which had alleged that R.J. Reynolds' Joe Camel campaign was aimed at minors (see "A Critical Example: Joe Camel," earlier in this chapter). R.J. Reynolds agreed to dis- continue the campaign in California and to give the plaintiffs 19 million for a counteradvertising campaign (M~~i~~j/lj, citc,d irr 12.5 TPLR 3.349). In October 1997, the industry settled the first phase of a class action brought on behalf of nonsmoking flight attendants for substantial money and other concessions (Broi,~, iit& ill 12.6 TPLR 3.397). This case is discussed in detail in "Claims of Nonsmokers," later in this chapter. Finally, at the time of lyriting, a group of state attorneys \vere holding discussions about settling some or all of the remaining state cases. According to pub- lished reports, as a starting point "the states have de- cided to use the [public health] concessions gained by Minnesota as part of its $6.5 billion settlement" (Meier 1998a). Other Third-Party Reimhrrsemelrt Cases Although the parties seeking recovery in Medic- aid reimbursement cases are public officials, the cases are based on private law theories of recovery-that is, the officials proceed not as auth0ritatiL.e public regu- lators but as holders of rights conferred by the general la%v. Such use of private la\v reco\`ery as an instru- ment of state policy suggests further possibilities of analogous suits bv private funders of health care and mav provide incentives for attorneys to organize such suits. Health insurers, rvidely seen as reluctant to en- force their rights to recoup from third parties, may be mindful of such opportunities in an increasingly com- petitive health care setting. Indeed, Blue Cross and Blue Shield of Minnesota was a co-plaintiff lvith the State of Minnesota in its action against the tobacco industrv. In 1996, the Mill- nesota Supreme Court unanimouslv rejected an indus- trv challenge that co-plaintiff I31ue Cross and Blue S&eld could not remain in the cast`. This ruling per- mitted the insurance company and the state to pursue their claims directlv against the defendants, rather than on behalf of individual smokers (Mi/lrlc~lfrr il. f%ili/~ Morris Irlc., 551 N.W.2d 490 [Minn. 19961). When the industrv settled \vith the State of Minnesota in May 1998, it also settled M.ith Blue Cross and Blue Shield ot Minnesota-for 5469 million to be paid over a five- year period Weinstein 1998a). In March 1998, two Minnesota health mainte- nance organizations filed a separate suit against the industry, Mith claims paralleling those in the Minne- sota case that was still in trial (Howatt 1998). The fol- lowing month, Blue Cross and/or Blue Shield Plans in 37 states combined in three legal actions to sue the major tobacco companies and their public relations firms to recover damages allegedly caused by a con- spiracy to addict their insurance plan members to ciga- rettes (e.g., Blzrr CKW nr7ii B/z~r Shield, cited irk 13.2 TPLR 3.51; Nl7fiorral Law ]olm7/ 1998). These plans are alleging that tobacco companies conducted an "ongoing conspiracy and deceptive, il- legal and tortious acts " that have resulted in the plain- tiffs suffering "extraordinary injury in their business and property," having been required to expend many millions of dollars on costs attributable to tobacco- related diseases caused by defendants who "know- ingly embarked on a scheme to addict millions of people, including members of the [Blue Cross and Blue Shield] Plans, to smoking cigarettes and other tobacco products-all with the intent of increasing their an- nual profits. . [and forcing] others to bear the cost of the diseases and deaths caused by the conspiracy" (Blrre Cross ad Hue Shield, p. 3.32). The plans allege a conspiracy to hide the health effects of tobacco products, violations of federal rack- eteering laws and of antitrust laws, and unjust enrich- ment, among other theories (Tohncco Pron~cts Lif@tioll Rqmrter 1998). They request damages in the forms of payments for treatments of tobacco-related diseases, court orders to require corrections of unlawful behav- ior, damages in excess of $1 billion for past and future harm, and other forms of relief. Bankruptcy trusts representing the interests of injured plaintiffs who have made claims against the asbestos industry filed suit against the tobacco indus- try in late 1997 (Bourque 1997). The trusts allege that they paid claims to victims of asbestos exposure whose injuries were substantially caused by either active or passi\.e exposure to cigarette smoke. Alleging the unjust enrichment of the tobacco companies at the ex- pense of the trusts, the latter seek to recover expendi- tures and payments made to the asbestos settlement class and seek punitive damages against the defen- dants (T~J~ICCO Products Lifipfioll Reporter 1997b). The trusts allege that among persons exposed to asbestos, direct or indirect exposure to tobacco smoke is a substantial contributing factor in both the devel- opment of cancer and the frequency and severity of symptoms of asbestosis, a disease from which many asbestos Lvorkers suffer. The trusts also allege that to- bacco companies knew or should have known that their products would cause these injuries (Fnlise ~1. Auuicnrl Tobacco Co., No. 97-0-7640 [E.D.N.Y. Dec. 31, 19971, c-ifcd ill 12.8 TPLR 3.504 [1997]). The asbestos trusts accuse the tobacco companies of suppressing the truth concerning the nature of their products and their carcinogenic effects. They allege that tobacco industry products were at least partly re- sponsible for the illnesses suffered by asbestos plain-- tiffs. The trusts thus want the tobacco companies to pay a share of the billions of dollars in damages- awarded to those plaintiffs (Bourque 1997). Small Claims Tribunals to Recover the Cost of Quitting Related to these expansil-e addiction suits are a series of more limited claims based on the addicti1.e properties of cigarettes. As \Vith large suits, small claims for the recol-er>- of costs related to quitting to- bacco use depend on lvhether judges and juries ac- cept the addiction argument that underlies the product liability portion of the third Ii-a\-e of tobacco litigation. In this scaled-dorm \.ersion, claims for modest amounts might be brought in small claims courts, ob- iiating some of the litigation ad\.antages enjo\ ed b\ the manufacturers. In one case, an individual smoke1 sutxl Philip Morris Companies Inc. for 51,154 in a \Vasliington State small claims court to reco\.er the costs of consulting a doctor, buvin g nicntine patches, and joining a health club-all acti\-ities undertaken to help the plaintiff quit smokin, ~7 cigarettes (Haves 1993; Janofskv 1993). Because the court rejected the suit on the pi-eiiminarv ground that the statute of limitations had expired, tl;e suhstanti1.e merits of the claim l\.c`rt' nnt considered (Montgomerv 1993). In July 1998, an AusGalian appellate court al- !oIved a formerlv addicted smoker to proceed before the Nelz South Wales consumer claims tribunal \\`ith a S1,OOO claim for the cost of a stop-smoking proq-am, as \vell as for mental suffering caused b\, the addic- tion and the effort to quit (Australian Nei1.s Netivork 19%). Were a timely small claims case to succeed, the recoverv b~ould be small. Incentives for lalvvers to bupplv and plaintiffs to consume the legal ser\,ices needed to pursue such a claim might be provided IX, statutorv provision allow%ig ivinning plaintiffs to re- cover atiorneys fees. Or if such claims could be suffi- ciently standardized and simplified, they might proceed without lawyers (e.g., by preparing "kits" to enable plaintiffs to represent themselves). Other Cost Reduction Procedures Several other procedures have been used or may he a\:ailable to reduce the costs-for plaintiffs, their attorneys, and the courts-of resolving individual claims. -One such procedure is to combine pretrial and )>erhaps trial proceedings for se\,eral, or e\`en many, cases. In July 1998, a California court ordered that proceedings in a varietv of actions pending in \.arious California courts be colnbined (Associated Press 1998). Earlier, a Tennessee court ordered several pending in- ~1 ividual cases to be combined for trial (Mn.v Grt Liti- ~`~lfjoll Rryort~ 1998). Asbestos trials have occasionally ,\ combined hundreds and e\ en thousands of indi\ idual claims (Ac~/l[l~, frlc. P. .Gztc, 710 A.2d 944 [Md. Ct. Spec. App, 1998]). These procedures permit courts to achieve substantial efficiencies M'ith the formalities of class action certification. Efficiencies can also be obtained bv case management orders that set firm schedules for tr-ials and pretrial proceedings (111 IY Ci~czr-cftr Cr?ses, iitc,li if? 11 .I TPLR 2.3). Another procedure available in some jurisdic- tions is "offensive collateral estoppel," lvhich exempts future plaintiffs from retrying issues on which specific defendants 1ial.e lost in prior trials (Blorlilrl.-TorzXue Ll?lJclr~lrt,~r-ic's i'. Ulrii'rrY+l/ oj /lli/7OiS FolfJ?L~nfiorl, 402 U.S. 313,91 S. Ct. 113-l [1971]). This device has not yet been used in tobacco litigation. Claims of Nonsmokers .~lthou~h most litigation in\lol\-ing adverse health effects from exposure to ETS has not directly in\.ol\.ed tobaccn companies, a line of cases has devel- nped during the 1990s naming tobacco companies as detcndants and targeting the companies' beha\,ior in attempting to, as a British-American Tobacco Company Ltd. document from 1988 put it, "keep the controversy aIi1.e"-referring to the industry's common strategy of shifting the focus from persona1 health to personal freedom (Boy 1988; Chapman lY97). Claims of nonsmokers asserting damages from ETS ha\,e been filed on behalf of both indi\,idual and class plaintiffs. As nonsmokers, alleged victims of ETS are not \-ulnerable to the defense that they knowingly subjected themselves to the dangers of tobacco use. Hllt/~xr ~7. Anrcricnt~ Tot~nrrc~ Co. ([Miss., Jones Cty. May 12, 19931, c-ifctl irf 9.3 TPLR 3.335 [19941 [Amended Complaint]), filed May 13, 1993, seeks damages from six tobacco companies and others for the lung cancer death of Burl Butler, a nonsmoker and "paragon of clean li\ing" (Greising and Zinn 1993, p. 331, who al- legedly contracted the disease after inhaling custom- ers' tobacco smoke for 35 years while working at his barber shop (Kraft 1994). Butler became the first case in which documents allegedly stolen from Brown & Williamson Tobacco Corporation by one of its former employees were admitted into evidence, despite objections by the defendants that attorney-client privilege prohibited disclosure. Lawyers for Butter's estate contend that "the documents v,:ill show, among other things, that tobacco companies manipulated and suppressed scientific research for years to mislead their customers about smoking's dangers" (Ward 19%). State Circuit Court Judge Billy Joe Landrum postponed commencement of the trial 1.111 motion bv the plaintiffs to allolv ne\v defendants to be added to Gie action. The amended complaint now contends that manufactur- ers of talcum polvder used by Butler in his barber shop "knelr or should have knolvn that En\.ironmental To- bacco Smoke can act synergistically ryith Talc, to cause respiratorv diseases, including lung cancer, and other health problems" (Rrltl[xr. il. Philip M0l.G [i7c`., Civil Action No.:945-53 [Miss., Jones Cty. Mar. 3,1996], cited ir7 11.3 TPLR 3.307, 3.315 [lYy6] [Second Amended Complaint and Request for Trial by Jury]). A new trial date has not vet been set. Another case involved a Ivoman who had never smoked but Lvho \vas subjected to prolonged and re- peated exposure to ETS since childhood and died of lung cancer in 1996 at the age of 4-l (BIlckir7@flrii il. R.]. Rqt,rdd~ Thcr~~ Co., 713 A.2d 381 [N.H. lY%]). Two years before her death, Roxanne Ramsey-Buckingham sued the major tobacco companies and a local store in strict liabilitv and under Restatement (Second) of Torts, section 389. She alleged "that the defendants kne\v or should ha1.e knon-n that it \vas unlikelv that their prod- ucts tvould be made rtasonablv safe prior to their cus- tomarv and intended LISA, an`? that it \vas foreseeable that i&. Ramse);-Buckir~Rham ~vould be endangered by ETS from the defendants' cigarettes" (1-7. 383). A superior court judge dismissed her larvsuit in 1995 on the basis that New Hampshire does not recognize a strict liabilitv cause of action under section 384. Holvever, the- Nelv Hampshire Supreme Court reili- stated the lar\.suit in Ma!. 1998, ruling that "section 389 is not a form of strict liability because it requires the defendant's kno\vledge of the product's danger- ous condition and does not require that the product be defecti1.e. The comments to section 3X9 make it clear that a bystander, assuming he is \vithin the scope of foresceabilitv of risk, is o\veci a dutv under larz. and ma!' rec0l.e; on a sholj,ing of breacii, dam age, and causation" (p. 38.5). The case ~vas sent back to the trial court for further proceedings. One case that Ivas triecl before a jury in March 1998 resulted in a I-erdict for the defendants. In that case, R]R Nol~i~o Holtlir7;;s, Corps. ~1. Dlirrj1 (657 N.E.Zd 1220 [Ind. 19951) a nonsmoking nurse \vho I\-orked for 17 years at a Veterans Administration Hospital died of lung cancer at the age of 56. Her IvidoIver sued a group of tobacco companies, claiming that her exposure to ETS from her patients at the hospital had killed her. A six-person jury returned a L'erdict for the defendants. Intervielved after the trial, some of the jurors explained that thev had had doubts as to ivhether the cancer that killed Xlrs. Wiley had originated in the lungs or, as the tobacco companies' lawyers had argued, in the pancreas and had then spread to the lungs (Dieter 19~8). The most prominent ETS case with tobacco corn- pany defendants has been Broiu u. Philip Morris &IS., which was brought against the six major cigarette manufacturers in 1991. Seven current and former non- smoking flight attendants, who contracted lung can: cer or other ailments and who face an increased risk of disease as a result of exposure to ETS on airplanes, filed a class action suit on behalf of thousands of flight at- tendants harmed by exposure to ETS on flights that predated the federal ban on smoking on domestic air- line flights. In 1992, a Dade County circuit judge dis: missed the class action aspect of the complaint, but t\vc years later, a three-judge panel of the District Court 01 Appeal of Florida, Third District, unanimously reversed the order of dismissal and ordered that the class action allegations be reinstated (Broifl, rited iir 9.1 TPLR 2.1). In late December 1996, the Circuit Court for Dade County authorized the mass notification of some 150,000 to 200,000 flight attendants so they could ei. ther sign up as plaintiffs or exclude themselves fron the case to pursue their own suits if they wished. Ir June 1997, jury selection in the trial began. More thar three months later, midway through the companies presentation of their defense, the parties announced 2 proposed settlement whereby the defendants woulc pay $300 million to establish the Broin Research Foum dation. The settlement would permit flight attendanti harmed by ETS exposure aboard airlines to sue tht tobacco companies, regardless of statute of limitation< issues. In the event of such individual actions, the de fendants \zould assume the burden of proof on the is sue of Lzrhether ETS exposure is capable of causing disease in nonsmokers. Dade County Circuit Judg Robert I'. Kave appro\,ed the proposed settlement or February 3, iYy8, calling it "fair, reasonable, adequate and in the best interests of the class," but challenger to the settlement have appealed (Broil? P. Phi/i/l Morri Ccls., No. 9 l-49738 CA (221 [Fla., Dade Cty. Feb. 3,1y981 iitc,ll ;,I 13.1 TPLR 2.79 119981). As of August 1998, thl appeal ivas pending. One Jvorkplace setting that has generated sub stantial exposure to ETS has been casinos. In 1997 nine casino dealers filed a class action lawsuit again5 17 tobacco companies and organizations. The lawsui seeks tens of millions of dollars in damages and clas certification of up to 45,000 casino dealers working il Nevada, along with their estates and family member: The plaintiffs in this case, B~~ilill~l 1'. Au7u~m77 Toh-c Co. (No. CV-N-97-0057%DWH [D. Net. 1997]), are also seeking to get medical monitoring for the dealers \vhl ha\-e had years of exposure to ETS on the job. In Apri IWS, a federal judge denied all of the motions to dismiss b!~ the defendants, except for The American Tobacco Company, Lvhich has merged \Vith Brolvii Cy: \Villiamson Tobacco Corporation. In April lYY8, a group of nonsmoking casino \j.orkers filed a lalz-suit in Nell ]erse\r Superior Court against several tobacco companies and the industrv's trade association, the Tobacco Institute, because ;he r\-orkers lvere being made sick bv their exposure to - ETS at \\rork (Smothers 1998). In a unique case from California, the Cit!, Attor- nev of Los Angeles filed suit in Jul\, lYY8, against I6 tobacco companies (those that sell cigarettes, iisars, or pipe tobacco) and 15 retailers on the grounds that the\. are \.iolating Proposition 65, an initiati\.e statute pas-sed bv the \,oters of California in lYS6. That la\\., l\nolvn as the Safe Drinking Water and Toxic Enforce- ment Act of lY86 and contained in California Health ~~iid Safetl. Code section 252-lY.6, pro\-ides that "no pc'rxon in the course of doin ;q business shall Aiic>~\ingl! and intentionallv expose anv indi\-idual to a chemical hnolvn to the sta;e to cause cancer or reproducti\,e tox- lcit\, \vithout first gi\,ins clear and reasonable lj~arn- ins to such indi\idudl." The laljwlit specificall>, lists 46 chemicals referred to as carcinogenic constituents of tobacco smoke and 8 (arsenic, cadmium, carbon disulfide, carbon monoxide, lead, nicotine, toluene, and urethane) as reproducti\.c toricants. The tit\, attornev's complaint cite< a nuinbei of prominent government studies: 7`/1~, HPO/~~I CO,IW ~jiic'lws ofIw~~lii~ltnr,t/ SljwkirlS, the lY86 report of the U.S. Surgeon General on smoking and health; Elli'/r.rlil,r2c',it111 fiJh7cco S~~mx-~~: Mens~rri,~~ E.r/~cw~irc~; 171111 Aw~~ir~<~ H~wltl~ Eif~cts, published in 1986 bv the National Research Council; X~~s/ljintorq H~nltl~ Efik-t~ IJ~ I'~75.~i;v SJrrcJkiJ~;;: LlirlS Cflrlccl- izliif Otiw Diwr-df,r;, a report issued bv the C.S. Environmental Protection Agwcv in Januarv iYY3; c111d H~~7ltl1 Ef(trfs of ES~TCIS~LTL to E,lill,.orllllr'rlt~7/ Toht~~~(~ _. ~~~wX-~~, published bv the California En\ironmcntaI Pro- tection Agency in September lYY7. The complaint al- leges that "N&withstanding this ovemhelming boci~ of governmental information, and notlvithstanding their W\I~ kno\vledge of these facts since at least lY81, the T~~ICCO Defendants ha1.e each know?ngly and intention- ~11I\, concealed from, and thercbv decei\~cd, e\-cry non- imoking individual exposed to en\ironmentaI tobacco illloke bv the sale and use of tobacco products in Cali- fornia. Bv these acts of kno\vin g and intentional con- cealment and deception, the Tobacco Defendants, `IIlL their agents, the Retailer Defendants, have each incli\~iduall!~ \.ioIated Proposition 65" (Cdiforl7in iI. Phili{J M0/.ri4 Ir7i., No. BC 194217 [Calif., Los Angeles Cty. July 11, 19981, cifcd ii/ 13.4 TPLR 3.195 [lYYX]). The City of Los Angeles' la\vsuit will likely ben- efit from a court decision rendered in 1997 in a federal court located some 3,000 miles a\vav. A nonsmoker in Florida filed a la\vsuit against \,arious tobacco com- panies, alleging that she suffers from severe emphy- sema and an arra\- of other injuries as a result of prolonged exposure to ETS from the normal and fore- seeable use of the companies' products. The compa- nies filed a motion to dismiss her case, contending that the Federal Cigarette Labeling and Advertising Act preempts claims based on state IaM- duties to dissemi- nate information relating to smoking and health. A judge in the L'.S. District Court for the Southern Dis- trict of Florida denied the motion to dismiss, conclud- in;: that the ff~t`rdl act's preemption of state regulations "L>aseJ on smoking and health" does not prt~t~mpt regulations in\.ol\ing ETS. "The Court finds it unlikel\~ that C`ongress intended the word `smok- ing' tc> mi'atl inhalin;: second-hand smoke," since the "Congressional reports make clear the purpose of the [ tedernl act] is not to inform non-smokers of the haz- ards of breathing second-hand smoke but rather to inform smokers and potential smokers of the dangers of acti\,eI\. smoking" ( l&ol/~ir~ i'. P/~ili/~ Morris, Iuc., No. Y6-l/81-GIL'-KI,XG, 1997 WL 535218 [S.D. Fla. Aug. IX, IYY7]). The court also ruled that the federal act did not LX, implication preempt a claim based on harm from ETS (SITeda 199X). ETS Crises Ayniust h'orltobncco Parties Injunctive relief from ETS. In 1976, Donna Shimp (see "Legal Foundation for Regulation of Pub- lic Smoking," earlier in this chapter), an office worker in Ne\\, Jersey, sought inter\rention from the courts to pro\?dc her relief from exposure to ETS at her worksite (Slrijlr/l, 368 A.2d 408). The court ruled that the evi- dence \~as "clear and o\wM-helming. Cigarette smoke contaminates and pollutes the air, creating a health hazard not merelv to the smoker but to all those around her rz,ho must re@ upon the same air supply. The right of an indi\+dual to risk his or her own health does not include the right to jeopardize the health of those who must remain around him or her in order to properly perform the cluties of their jobs" (p. 415). In granting an injunction to ensure that Shimp be provided a smoke-free \\.orkpIace, the Ne\v Jersey Superior Court provided a clear example of taking seriously the health concerns of nonsmokers \vho are forced to breathe ETS. The Sl7itrr/~ decision preceded most ot the medical stud- ies that have demonstrated the ad\.vrse health effects of ETS. In the 22 vears since Q~\JI/J, Ia~vsuits designed to protect nonsmdkers from the health hazards caused by involuntary exposure to ETS ha\-e escalated. A 1982 decision from the Missouri Court of Ap- peals gave additional momentum to nonsmoking Lvorkers seeking legal relief from on-the-job exposure to ETS. In S~llit/l (643 S.W.Zd 101, the Missouri Court of Appeals reversed a trial court's dismissal of a laiv- suit brought bv a nonsmoking ivorker lvho \z.as seek- ing an injunction--a form of direct interlwltion by a court-to pre\.ent his emplover from exposing him to tobacco smoke in the lvorkpiace. The court of appeals ruled that if Paul Smith lvere to pro1.e his allegations at trial, then "by failing to exercise its control and as- sume its responsibilitv to eliminate the hazardous con- dition caused b>r tobacco smoke, defendant [Western Electric Co.] has breached and is breaching its duty to provide a reasonably safe \vorkplace" (p. 13). A- though the nonsmoking lvorker e\.entuaIlv lost his case after it ivas sent back to the trial court, the court of appeals decision remains as a precedent that t\.ill help similar cases survi\,e motions to dismiss (S\\&a 199X). The follo\zGig !`ear, a nonsmoking social \\,orker in Attleboro, Massachusetts, \j'as granted a teniporar\ restraining order (w,hich bv la\v could last no more than 10 days) against smoking in the open office area lvhere she lrorkecl ivith about 3Y c[o\vorkers. 13 of \vhom smoked. In LcXv (ciftvl i/r 1 .2 TPLli 7.82), a sup- rior court judge denied a motion bv the emplover to dismiss the case, ruling that "an emplover has no dut\ to make the it-ork place safe if, and oniv if, the risks at issue are inherent in the \\.orh to be done. Otlierl\,ise, the employer is required to `take steps to pre\.ent in- jury that are reasonable and appropriate under the cir- cumstances'. AccordingI!; this court cannot sav that plaintiff's claim fails to make out a legally cognizable basis for relief" (p. 2.83). The case lads settled in Janu- arv 19% \vhen the emplover, the Con~mon~~ealth of Massachusetts, agreed to bro\.ide the plaintiff, Marie Lee, and the other nonsmoking \\,orkers there, \t-ith a separate nonsmoking area \\,ith \-entilation separate from the \-entilation in the smoking area. As it turned out, only 4 of the office's f0 lsorkers chose to \\.nrk in the smoking area (Siveda 1998). Hnirdicay DiscrizzzirzntiozzlAzzzf~ric~zzs With Disabilities Act A new' theor!, for ensuring ETS protection for nonsmokers in\-ol\,ed using the ADA. As the ratio- nale for applving the ADA to the r\rorkplace, parmet and colleagues (1996) explained: "The ADA was en- acted in 1990 to provide a `clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities' [42 U.S.C. section 12101(b)(l)]. The act prohibits discrimination against individuals bvith disabilities on the job [42 U.S.C. sec- tion 12112(a)] and in places of `public accommodation' 142 U.S.C. section 12182(a)], as well as by state and lo- cal governments [42 U.S.C. section 121321" (p. 909). Initially, some plaintiffs did not succeed in ac-1 quiring relief from ETS under the ADA. For example, in Hnrtuc~r C. Virgi/zio Electric mil Powr Co. (831 F. Supp. 1300 [E.D. Va. 1993]), an employee suffering from bron- chial asthma sued his employer, contending that in failing to ban smoking at the workplace, the companq had violated the ADA by discriminating against him because of his disability. Harmer contended that after- he requested a smoke-free work environment, the com- pany retaliated against him by reducing his job au-- thoritv and failing to promote him. Though recogn&g Harmer's disability, the district court dis- missed the claim, saying that he "still must show that he is entitled to a complete smoking ban as a reason= able accommodation to his disability, and he is unable to do so" (p. 1306). This \vas so "because the manv smoking limitations that the employer had put in plac;, coupled \vith improvements such as the installation of air filtration devices, were sufficient to enable the plaintiff to Lvork. Of course, a patient more severeI\. disabled might have required further accommoda- tions" (Parmet et al. 1996, p. 912). In hm'y i'. Cnrni~rr of Dr~`nlil.s, f/lc. (8'79 E SUFJT 610 [N.D. Tex. 1995]), two women hypersensitive to ETS filed suit under the ADA, contending that the>- lvere effecti\,elv precluded from attending musical performances a; the defendant's establishment because smoking \x.as permitted there. After a one-day, jurv- \vai\,ed trial, a federal judge ruled against the plain- tiffs, but noted that they should have brought theil claim under the ADA's reasonable accommodation provision, instead of the section of the act that bar: the establishment of rules that "screen out" disabled people (p. 643). A different result had occurred in a case from Con necticut. In Stnrrv~ P. McLhjzn/d'.i COY/J. (51 E3d 353 136 Cir. 199533, plaintiffs brought an action under the ADA 42 U.S.C. section 12101, saying that the presence of to- bacco smoke in the defendants' restaurants was prevent ing the plaintiffs from having the opportunity to benefi from the defendants' goods and services. The plain- tiffs, all of ivhom have adverse reactions to ETS, alsc alleged that the defendants' restaurants are places o- public accommodation under 42 USC. section 12181- \ttcr a district judge granted the, deienclants motion to Jismiss the case, the United States Court of Appeals for tilt' Second Circuit rc\-ersed, ruling that "1x-e find that t~l,lintiffs' complaints do on their face state a cogni7ablr ilainl against the defendants under the Americans l\.ith l>i~,lbilities Act" (p. 3.551. The court noted that "the de- ti~miiiiation of \\.liether a particular modification is `rea- 5c)nable' in\ ol\.es a fact-specific, case-I~\.-case inquir\. tllat considers, among other factors, the cffecti\.eness of the modification in light of the nature of the disabiliti. 111 question and the cost to the organization that \IDLII~I Implement it [p. 3561. We see no reason It-h\., undei tile appropriate circumstances, a ban on smokil;:_ could ni)t be a reasonable n~odification" (p. 337). An Illinois \voman suffering from chronic se\ ere allergic rhinitis and sinusitis sought a smoke-free I\-ark ivi1-ironnient and sued her former eniplo\-er after it "repeatedI\, refused to provide" the plaintiff \\.ith a I-c,lsonable~acconi~io~lation to her disabilit\.. Afttxr til- ill:; an ADA claim lvith the Equal Emplv\~mtwt Op p~lrtuiiity Commission anJ a I\-orker'h conipensatic~n claim, she fvas terminated. A federal judge in H~~~If~vc~r. :` ~/iii:lcw rlllillirl .-hJiir7tl3~. l/Ii (No. 95 c -Llw, 1995 \\ L (383613 [N.D. III. No\.. 17, 19951) granted the dt,- ttwdants' motion to dismiss, sa\.in;: that the plaintiff "Jot5 not, and cannot, allege that hw sensiti\ iti. to IETS] substantialI>- limits her abilit!, to find empjo>.- mcnt as a typist generallv. Thus, Hornever is not a qualified indil-idual ivith a disability, and, accordingI!; 1\ not entitled to the protection of the ADA" (p. 3). Ho\ve\ er, the Cnited States Circuit Court of Ap- ptsals for the Se\.enth Circuit unanimousI\, re\,ersed the district court's rolling and sent the case back fol trial. Noting that the district court had ignored Hornever's claini that she \vas disabled in that hcl hwath&g, an essential life activity, ij.as affected bv ETS, the court of appeals ruled that "II.~ cannot sa\- it this \tase that it \vould be impossible for her to sl;ol\- that ~c'I. chronic se\rere allergic rhinitis and sinusitis either alone or in combination M.ith ETS substantiallv limits llclr abilitv to breathe" (Horllcy/o. 71. St~7111~1/ Tult'hirr il.+ Y'( ;llfc's, l;~c., 97 E3d 959, 962 iith Cir. 19&l). In October lYY7, a Ne\\. York jurv alvarded `~~(),300 to an asthmatic prison guard, Keith Muller ( \1dicr il. Cnsfcllo, No. `M-CV-832 (FJS) CCJD,, 1996 WL I'llclii [N.D.N.Y. May 20, 1996]), w.110 had been fired after he had made numerous complaints about the ef- tc'ct of ETS exposure on his health. While ser\,ing as a `ilrrectional officer, Muller had become seriously ill- l~~cluding numerous occasions ivhen he had to be taken t ! 1 `1 hospital directlv front the prison xvhere he `\orked-after being &posed to ETS. After Muller's tl.c'ating phvsician hacl recommended that he lvork in a smoke-free en\.ironment, the Nets York State Depart- ment of Correctional Services instead provided him lz.ith a mask that, according to Muller, made him even niore ill. Furthermore, Ivearing the mask had subjected Muller to lvidespread ridicule, putting him in even greater personal danger from the breakdown in the respect that the inmates had for him. Whereas a judge in 19% had barred the plaintiff's negligence and civil rights claims in Mlrllw ~1. CosfcTllo, the court allo\ved Muller's ADA claim to proceed. Ruling on posttrial motions, the judge reduced the a\vard to 5300,000 because of the cap on compen- satory damages contained in 32 U.S.C. section lWlaib)(3). The court also rejected the defendant's motion to \,acate or reduce the verdict as excessive, ruling that the "plaintiff submitted evidence of dis- crimination that had taken place o\`er a period of Vears during \\.hich time he \vas forced to endure mental suttering, embarrassment, econoniic hardship, actual termination and physical injure. In view of this evi- dciice, the Court finds that the jury alvard of $300,000 is not c\cessi\,e and does not shock the conscience as a matter of la\\." (,l/l~/ll~ ~1. Cwfc,llr), 997 F. SLIDE. 299, 303 IN.D.N.1'. 19981). In a more recent case, three asthmatic women SLI~C~ ReJ Lobster and Rubv Tuesdav restaurants un- der the ADA. The plaintiffs in Etlwnrils 7'. GMRI, Illi. (No. 116693 [Md., Montgoniery Cty. Nov. 26, 19971, c-/tvA irk 13.1 TPLR 3.1 [199X]) said that they attempted to patronize the defendants' restaurants but were forced to 1eaL.e because of the ETS there. In their com- plaint, the plaintiffs stated that the defendants' "fail- ure to establish a police prohibiting smoking in their restaurants throughou;the state discriminates against the Plaintiffs on the basis of their disability in their use and enjoyment of" the restaurants (p. 3.3). The 1990s have seen the development of cases in 1%.hich a nonsmoker li\ing in an apartment or condo- minium unit is being adverselv affected by smoke en- tering his or her d\velling sp&c from elsewhere. In June 1998, a Boston Housing Court judge ruled in fa- \.or of nonsmoking tenants ~.ho bvere being e\-icted for nonpavnient of rent W-58 Gi7ir15I~~ro1iglr Strwt Rc- irlf1/ Trrl5f tl. Rtue il/ltf Krisfv Hnik, No. 9842279, Bos- toll Housing Court [1998lj. After pleading with the landlord for sweral months to do something about the problem of smoke from a first-floor nightclub constantlv entering their second-floor apartment and disrupting their ability to use and enjov their apartment, the tenants got no relief. Attrr the\, \vith- held their monthly rent pa!,mcnts of S1,150, tll-e land- lord brought an action in housing court seeking their eviction. The court ruled that "the e\.idence does dem- onstrate to the Court that the tenants' right to quiet enjoyment [of their apartment] \vas interfered lvith be- cause of the second hand smoke that \~as emanating from the nightclub belor%r" (p. 34). The court ruled that "as the tenants describe the second hand smoke Lvithin their apartment at nighttime, the apartment would be unfit for smokers ancl non-smokers alike" (p, 7). That interference M.ith the quiet enjoyment of the tenants' apartment was a defense to the effort to evict them, Also, the court found for the tenants in the amount of $3,350-the same amount that the ten- ants had withheld over the course of three months. In Lk~orki~7 7'. Paley (Y3 Ohio App. 33 383, 638 N.E.2d 636 [Ohio Ct. App. 199311, D\vorkin, a non- smoker, entered into a one-year lease lvith Paley to reside in a two-familv d\velling; the lease leas later renewed for an additional one-vear term. During the second year, Paley, a smoker, mo\.ed into the d\velling unit below Dlvorkin's. T\VO Lveeks later, Dlvorkin lvrote to I'alev to tell her that her smoking \vas annov- ing him and causing him phvsical discomfort, noting that the smoke came through-the common heating and cooling systems shared by the t\vo units. Within a month, Dlvorkin vacated the premises. Eight months later, he brought a legal action to terminate the lease and recover his securitv deposit from Palev. The larv- suit, rvhich alleged that I'alev had breached the co\`- enant of quiet enjovmcnt and statutory duties imposed on landlords (including doing "\\.liate\,er is reasonabl\r necessarv to put and keep the premises in a fit and habitable condition," p. 387) \~a5 dismissed on a mo- tion for summar> judgment. I-lol\.e\,er, the Cuyahoga County Court of Appeals re\,ersed the dismissal, concluding that a re\ielv of the affidavits in the case "reveals the existence of general issues of material fact concerning the amount of smoke or noxious odors being transmitted into appellant's rental unit" (p. 387). The case leas thus sent back to the trial court. In June 1998, a prominent Ne\v York law firm, Weil, Gotshal & Manges LLI', sued the o\vner and land lord of the office building lvhere it is located, as \j,ell as the tenant located one floor below, because of ETS seepage into its office space. The firm alleges in its lawsuit, that as a result of the smoke infiltrating into its 29th floor offices, "some of WG&M's partners, as- sociates and employees have suffered illness, discom- fort, irritation and endangerment to their health and safety, and/or 1laL.e been unable to use or occupv their offices or lvorkstations on the WG&M 29th Floor Man\: landlords are not waiting to be sued. The Building &vners and Managers Association Interna- tional, a trade association for 16,000 office landlords and owners, has been advising its members to lessen their risk of ETS liability by banning smoking when- ever possible. During the past two years, the propor- tion of member office buildings that banned smoking increased from 68 to SO percent (White 1998). United States Supreme Court Ruling on ETS in Pvisorls -Eighth Amendment Issues Perhaps the most frequent area of litigation in- \.ol\,ing exposure to ETS has come in a setting where the exposure is both involuntary and inescapable- prisons. A landmark case that eventually reached the United States Supreme Court started in Nevada when a nonsmoking prisoner was housed in the same cell as a hea1.y smoker (McKiulwy 51. A~zdcusorz, 924 E2d 1500 [9th Cir. 19911). The nonsmoker brought a civil rights lawsuit against the prison officials, claiming that his Eighth Amendment right to be protected from cruel and unusual punishment was being violated due to his constant exposure to ETS. Although his case was thro\vn out initially by a district court in Nevada, the lawsuit \vas reinstated bv the United States Court oi Appeals for the Ninth Circuit. The court ruled that e\-en if the inmate could not show that he suffered from serious, immediate medical symptoms caused by ex- posure to ETS, compelled exposure to that smoke is nonetheless cruel and unusual punishment if at such le\-els and in sucli circumstances as to pose an unrea- sonable risk of harm to the inmate's health. On June 18,1993, the Supreme Court ruled in a 7 to 2 decision that McKinney's case could go forward. The Court affirmed "the holding of the Court of Ap- peals that McKinney states a cause of action under the Eighth Amendment by alleging that petitioners [the prison officials] have, w.ith deliberate indifference, ex-m posed him to levels of ETS that pose an unreasonable risk of serious damage to his future health" (Hc//i~l~ P. AkKi/7rwy, 113 S. Ct. 2175 [1993]). ETS aud Child Csstod!y Cases Disagreements between parents who are divorc- ing can, of course, cover a wide variety of subjects. One of the issues that has increasingly become a sig- nificant subject of disputes that have ended up before- a judge in probate court has been the exposure to ETS on the part of a child or children caught up in a custody battle. O\,er the past 11 years, there have been recorded cases in at least 20 states (Siveda 1998). One of the earliest \~as Wilk il. WI'IX- (If{ w Wili iI. Wilk, 7X1 S.W.Zd 217 [MO. App. 19891). The trial court in this case granted primary custody of the children to the mother, who had been advised by a doctor that the children, one of tvhom leas asthmatic, should not be taken to the father's home because he smoked. The fvlissouri Court of Appeals ruled that the trial court did not err in a\varding custodv of the minor children to the mother. In a case from Kansas, an ex-isif-e \\.ith custnd\~ sought permission to 1iioL.e ii.ith her children to aii- other state; the ex-husband responded \yith a motion to obtain custodv. The district court did make the change bv al\-arding custodv to the es-husband after finding &at the ex-Irife's s&oking had harmed the children. The es-\\.ife appealed, arguing that thwe had been no evidence to pro\e that her smoking had cc~used her children's health problems. The court of appeal% affirmed the district court's change of custody, notins that there Ivas e\ridence that her smoking had harmed the children: "That finding is supported b\, the testi- IIIOII~~ of three doctors that s~con&l~and smoke aggra- \.atei the children's health problems and placed them at risk for further health problems" (/\I VI' .~I~/I~~(./I[J~~, 913 P.2d 221 [Kan. Ct. App. Mar. 22, 19961). In some cases, the smoking issue is not sufficient to produce a change of custodv. For example, in H~~/uI i'. HCIIII (Ol-A-Ol-9209-CHO0363, lYY3 WL21983 [Term. Apt). Feb. 3, 1993]), the trial court a\varded custodv of ~3 five-vear-old child to the father. The mother appealed the divorce decree, arguing before the Court of Ap- peals of Tennessee that the father smoked around the child. The court said that "Other than exposure to vio- lent movies and cigarette smoke, no e\ridence is cited that the father has neglected or mistreated the child" (17. 2). The trial court's judgment \vas affirmed, with the mother being accorded visitation rights. In Bngqcff ;`. Snthcr-lnlrd (No. CA 88-224,1989 WL 5399 [Ark. App. Ian. 25, 1989]), a nonsmoking father attempted to ob- tain a change in custody on the basis of, among other things, the fact that the mother smoked in the pres- ence of children who were allergic to smoke. Although the lower court had found that circumstances were not 5~) changed as to warrant a change in custody, it did acknowledge that smoking was detrimental to the chil- dren. The mother was forbidden to smoke in the home or allow anyone else to smoke in the home; the judge "made it clear that he would exercise continuing ju- risdiction over the parties to insure compliance with that order" (p. 3). Rulings in other cases ha\re been the product of compromise. In !Vor?llclitt il. Ri'orfllcrltt, a 1997 case, a nonsmoking father objected to ETS around his 2-vear-old son, \~ho has asthma and has had repeated res 3iratorv infections, bronchitis, allergies, and ear- -k aches (Slveda 1998). As part of a joint custody agree- ment, a Warren County, Tennessee, judge ordered the mother to keep her son array from ETS. Each parent was to ha\.e custodv for six months per year. Victims of Smoking-Related Fires Smoking is the leading cause of deaths and inju- ries by residential fire. According to the Building and Fire Research Laboratory of the National Institute of Standards and Technology, cigarettes start more fatal fires than anv other ignition source, causing about 30 percent of ali fire deaths in this country. For example, in IYSY, 11,000 cigarette-ignited fires caused 1,220 deaths, 3,358 injuries, and $481 million in property damage (Karter lYY3). In lc)84, Congress passed the Cigarette Safety Act (Public La\%. Y&567), creating a Technical Study Group to assess the feasibilitv of dewloping a less incendi- ar\' cigarette. The g&p concluded that changing a standard cigarette's diameter, paper porosity, and to- bacco density \vould produce a cigarette that would not transfer enough heat to cause a fire when dropped on most upholster\; (Technical Study Group on Ciga- rette and Little Cigar Fire Safety 1987). The tobacco industr>z maintains that e\`en if such cigarettes could be manufactured, \,\rhen smoked they would not burn as thoroughly as current brands, meaning that fire-safe cigarettes \~ould deliver more tar, nicotine, and car- bon monoxide to the smoker (Levin 1987). The prospect of technologies for making less in- cendiary cigarettes raises the question of whether the manufacturers might be held liable for failure to in- corporate such a feature. Until now, product liability litigation for fires caused by cigarettes has met with no more success than smokers' claims for injuries to health. The first such case to produce a judicial deci- sion, Lnrllke ~1. Fufo~inr~ Coy. (709 P2d 684 [Okla. 1985]), involved a fire started when a cigarette ignited a sofa, resulting in severe burns to much of the plaintiff's body. The Oklahoma Supreme Court applied the so- called consumer expectation test to find that the ciga- rettes in question were not dangerous to an extent beyond what ivould be expected by the ordinary con- sumer. The consumer expectation test, which evolved from comments to section 402A of the Restatement (Second) of Torts, today sur\ri\res as the law in a mi- nority of jurisdictions (American Law Institute 1995). The prevailing \ie\v, endorsed bv the current draft of the Restatement (Third) of Torts; would determine li- abilitv for defective product design bv a risk-benefit standard that evaluates the qualitv oi the manufac- turer's design decision by revie!iing whether the manufacturer properlv \veighed the comparative costs, safety, and mechanical feasibility of one or more alter- native designs (Green 1995). In La~lke, the court found that evidence regarding the feasibility of manufactur- ing a less incendiary cigarette was irrelevant to con- siderations of consumer expectation, but such e\,idence might be found persuasive in a jurisdiction following a risk-benefit standard for determining design defects. Whether the tobacco companies suppressed research and product de\,elopment regarding fire-safe cigarettes is under investigation bv the antitrust division of the U.S. Department of Justice (Shapiro 1994~). Fire claims by smokers \~ould face many of the familiar obstacles to recovery but, as two pending claims illustrate, many of the potential plaintiffs in fire litigation are not smokers but third parties untainted by the decision to smoke. In K~~rrrc~! il. Philips Morris Cns. ([D. Mass. May 11, 19921, cilcil 111 7.2 TPLR 3.65 [1992]), suit \vas brought on behalf of a kvoman M.ho died in a fire started by her husband's cigarette. The plaintiff's attorneys focused "on the issue of additives and other manufacturing techniques that cigarette makers use to ensure that cigarettes kvill stay lit even if they aren't being smoked" (Wilke and Lambert 1992). On February 16,1996, Judge Robert E. Keeton granted summary judgment" in favor of Philip Morris, hold- ing that even under the more forgi\.ing standard of liability for design defect, "fatal gaps" existed in ev- dence submitted by the plaintiff in supporting her claim that adoption of an alternative design by the company would ha1.e prevented the fire started by Mr. Kearney's cigarette (&YZY,IC!/ ~7. P/li/i;j Mm-l-is Irlc., 916 F. Supp. 61,66 [D. Mass. 19961). Another cigarette-caused fire claim seeks recov- ery based on the fire-related injuries recei\fed bv a 21-month-old infant trapped in her child car &at (Ski~~uu~r~ ~1. Phi/i/~ Morris Cm., Cause No. 26291 [Tex., Johnson Cty. Oct. 7, 19941, iif& ill 10.1 TI'LR 3.91 [19951). Enhancing Prohibitory Regulation by Private Litigation En,forciug Minors' Access Lazus Enforcing these widespread and important statutes is typicallv left to government officials who have com- peting commitments and limited sanctioning powers. A pioneering suit, brought by tobacco activists against a Massachusetts convenience store chain, sought to supplement this ineffectual arrangement by private enforcement. The initiative first took the form of a test: case, sponsored by the Tobacco Products Liability Project, charging that Philip Morris was engaged in a "civil conspiracy" with the convenience store chain to sell cigarettes to minors. A divided Massachusetts- Supreme Court found the conspiracy unproven (Kyte 71. Philip Morris lw., 408 Mass. 162, 556 N.E.Zd 1025 [Mass. 19901). The plaintiffs then refocused the suit- directly against the convenience store chain, alleging- that it had violated the Massachusetts Consumer Pro- tection Act, which allows consumers to bring civil suits- directly against vendors for money damages and in- junctions. The suit terminated in a settlement in which the chain agreed to demand proof of age from would-m be cigarette purchasers. In 1992, the Tobacco Prod- ucts Liability Project launched a project to research the legal basis for such suits in all 50 states and to provide informational and strategic support for such litigation (LeMr 1992). After the settlement in K$c, the attorney general in Massachusetts, acting under the state's consumer protection laws (Mass. Ann. Laws ch. 93a, sec. 1) bee gan to conduct tests using minors posing as custom- ers to gauge retailer compliance with state bans on- tobacco sales to persons under 18 years of age (Mass.- Ann. Laws ch. 270, sec. 6). Settlements were reached \2-ith several supermarket chains in 1994 for monetary damages as well as implementation of measures de- signed to reduce the risk of further illegal tobacco sales to minors (Tobacco Products Liability Project 1996). By 1998, state attorneys general offices in 26 states began working M.ith the National Association of Attornevs General and the Tobacco Control Resource Ceniel (1998) to develop approaches to prevent illegal tobacco sales to minors. K,I& presents an instance of a lawyer functioning as a private attorney general to secure the enforcement of underenforced public standards. This case suggests- that restrictions on sales to minors might be enforced more effectively by establishing informational net-- works and incentives (such as the recovery of attor- neys' fees) to facilitate widespread and routine Although selling cigarettes to minors is prohib- ited in all states and the District of Columbia, retail store employees frequently ignore the law (Le\v 1992). A summary judgment is a judgment granted kvithout a formal trial \vhen it appears to the court that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter crt ld\\. exertions by la\v!.ei-s. Such pri\.ate enforcement is a \j.ell-established feature of a number of regulatorv re- (rimes, including consumer credit regulations, securi- 0 I ties la\\Ts go\,erning insider trading, and bounties paid ior apprehending persons ivlio defraud the goi.eni- ment. In de\-ising such strategies, the risks of underuse, o\.eruse, and abuse must be identified to frame a scheme of incenti\,es that vields optimum results. One state's highest court has upheld the legal \.aliditv of using the civil provisions of consumer pro- tection statutes to enforce penal lal1.s prohibiting tn- bacco sales to minors. The California Supreme Court held that a pri\-ate and for-profit enterprise had stand- ing under that state's consumer protection lal\,s to maintain a pi-i\-ate action in the public interest, e\`en though the underl\?ng penal statute contained no pro- \%ions for a private right of action (Stcll~ >i)lctlr ,-ldrlic-- tio17, lric-. il. Lffch Sfow. /r7i., 17 Cal. 4th 553, 557, 71 Cal. Rptr. 2d 73i [19YH]). State and local lalvs restricting the ad\w-tising and promotion of tobacco products (see "Ad\.ertising and Promotion," earlier in this chapter) provide an- other occasion for pri\,ate initiati\.es. The California Supreme Court held that federal preemption did not extend to bar a suit claiming that the "Joe Camel" ad- \.ertising campaign targeted minors and thus violated California's ban on unfair business practices (see "A Critical Example: Joe Camel," earlier in this chapter) i.t2~777gir1i, 875 I?2d 75). This suit, like Kl/tc~, in\-ites con- sideration of the benefits and costs of the pri\.ate at- torney general device. Such an evaluation must compare the performance of pri\-ate efforts \\.ith ac- tual rather than idealized go\.ernmental regulatory ac- tixity. For example, the FTC did secure a consent decree against the Pinkerton Tobacco Company ([/I rt' Pirkertm 70hncc0 Co., 115 F.T.C. 60, 1992 F.T.C. LEXIS 35 [Jan. 9, 19921) to cease promotion of its smokeless products at a televised tractor pull. On the other hand, after FTC staff lawvers recommended in 1993 that the FTC charge R.J. Re$nolds Tobacco Company v,`ith LIS- ing the Joe Camel campaign to promote cigarettes to children, the commissioners \.oted 3 to 2 to take no action (fTC:lV~tclr lY91). The presence of pri\,ate attornew general may add to the limited resources of public ;egulators. The U.S. Department of Justice recently settled a Iat\-suit against Madison Square Garden for circumventing the 1971 federal ban on broadcast advertising of cigarettes bv placing cigarette advertising \\rhere it u,ould be dis- piayed in television broadcasts. The case ended lj.ith a consent decree in \vhich the arena admitted no rvrongdoing but agreed to remove cigarette advertis- ing from sites IThere it \~ould be seen on television (Thomas and Sch\i-artz 1995). The government's en- forcement capacity in this area could be amplified if there \vere sufficient incentives for private litigants. The International Dimension of Tobacco Litigation Tobacco Litigation Abroad The first ancl second Lva\res of tobacco litigation \vert` uniquelv L:.S. phenomena, but the third wave has an international dimension that its predecessors lacked. Only a fe\z. years after a 1990 survey reported that "there has been no history of tobacco litigation in the [European Community]" (Cooper 7 990, p. 291), counterparts of many of the third-M-ave litigation ini- tiati\.es ha\,e appeared in other countries. In Austra- lia, emplo!,ees injured by ETS have recovered substantial damages from their employers (Daynard lYY4a). A public interest group, the Consumer's Fed- eration of Australia, secured a judicial declaration that the Tobacco Institute of Australia Ltd. had falsely claim4 that "there is little evidence and nothing which pro\.es scientifically that cigarette smoke causes dis- ease in non-smokers" (Davnard 1994a, p. 60). A French public interest group, acting as private attorneys gen- eral, successfully enforced bans against tobacco adver- tisements on radio and teleirision (Gol/ulni~z P. Societc Natior7i7lf~ D'Erploi~i7tin77 It7d77strirllc de Tahncs et All771r7c~ftc~ [SE/T,-11 [Tribunal de Grande Instance de blontargis Dec. 19, 19961, cifctl irl 11.8 TPLR 3.1073 [ 1YYhj). In Canada, a class action suit based on addic- tion \%`as filed against Canada's three largest tobacco manufacturers. To sholv that the tobacco companies knr\v of nicotine's addictiveness, the suit relied on documents unco\rered in the United States Wan Rijn lYY5). In England, the Legal Aid Board granted cer- tificates of eligibility for legal aid to fund 200 cases brought bv smokers alleging that tobacco manufactur- ers had failed to meet their legal duty to minimize the risks of smoking (PR Newskvire 1995). Legal Aid`s \i,illingness to finance the litigation comes after a three- year battle for funding, led by the British group Ac- tion on Smoking and Health (Milbank 1995). Foreign Plaintiffs ilz the American Courts Overseas sales are an increasingly important sec- tor of the American tobacco industry: exports grew from 8 percent of total production in 1984 to 35 per- cent in 7YYh (MacKenzie et al. 1991; U.S. Department of Ag-iculture lY%). The absence of lvarnings on the packaging of exports and the aggressi\ e promotional acti\-it? might help foreign plaintiffs \I-ho brought claims in U.S. courts ol'erconic some of the barriers that ha1.e protected tobacco companies from domestic plaintiffs. Holyever, such litigation r~ould face other formidable obstacles, including the problem of estab- lishing a substanti\rt right to reco\`er according to for- eign law and an expanded notion of the responsibilities of multinational corporations for merchandise sold o\`erseas. Such an expansion seems unlikely in the light of the reluctance of U.S. courts to provide a fo- rum for foreign victims of corporate misconduct. This reluctance was dramatized in the litigation arising from the 1984 chemical plant explosion in Bhopal, 1~ dia (Jasanoff 1985; Cassels lYY3; Calanter 1994). Al- though the U.S. courts decided that the case should be tried in India rather than in the United States ([II IP' Ll/ricl/f cd~idc~ c~J!`/l. G175 I-1 /f7/lt Di!i.i75tH 17t ~hOj"71, I,l,fii7 irl Deimlw~, 19&i, 634 F. Supp. 8-12 [S.D.N.\i 1%6], izff'cl it! prt 809 E2d 1 Y5 [2d Cir. 19871, c-c~`t. ~l~/~ic~l, G-X C .S. 871, 10X S. Ct. 199 [lYX7]), the L'.S. parent cornpan! ITas required, as a condition of moving the case to India, to submit to the jurisdiction of the Indian courts. A number of rulings in the Bhopal litigation also cre- ated the basis for enhanced liability of U.S. multina- tional corporations for their over&s operations. In a later proceeding, a U.S. court ackno\zledged that a for- eign government might establish itself as the esclu- si\-e representative of \.ictinis of a mass tort (R~?rlo Ri ;I. LIt~ioi~ Cilrl~l'tft~ CIWII~. LT Ol~istiis Co., 984 F.23 582 (3d Cir. 19931). If any of the current third-It-al-e claims flourish, foreign claims lvill likelv be presented to U.S. lalvyers and filed in U.S. courts.. On Mav 12, 19Y8, the Republic of Guatemala be- came the first nation to file a Iall-suit against the U.S. tobacco industry for the recovery of public health care expenses (Davis 1998) (Gi~~tcr~~~~ln ~1. Ti)l~ic.cj l~l,fitl~tc, [D.C. May 12. 19981, zitcd i/j 13.3 TPLR 3.121 [lY%]). Counterthrust: Tobacco Industry Initiation of Litigation and Other Tactics In its 1993 la\t.suit filed in U.S. District Court in Greensboro, North Carolina, the tobacco industry accused the EPA of using improper procedures, inclu& ing statistical manipulation, to arri1.e at a predeter- mined conclusion and sought "a declaration that EPA's classification of ETS as a Group A [kno\vn human1 carcinogen and the underlving risk assessment are arbitrary, capricious, vio1atiL.e of the procedures re- quired bv laiv, and unconstitutional" (FIIIPCIIWII K~Pnxr~ CtwjJt'ri7fii'L' Sfabili~nfio~l Corp. i'. UJlifrLf sti7tes. Etwirnfl- \rrr,rtnl PnJtrv-tiorr AScrrcy [M.D.N.C. June 22, 19931, cited i/l 8.2 TPLR 3.97 [1993]). As discussed earlier in this chapter (see "Health Consequences of Exposure to ETS"), on July 17, 1998, U.S. District Judge William L. Osteen Sr. issued a ruling whereby the court annulled Chapters l-6 and the Appendices to EPA's Rrspir~tory Htvlth Effects of Pmsiuc Snmkir~g: LUJI~ Cn~mr nrzd 0th~ Disodcrs (EPA 1992; Meier 1998b). The judge reached his conclusion only after having denied the EPA's mo- tion to dismiss the case even though the EPA had never taken, and indeed had no authority to take, final agency action (e.g., the adoption of a regulation restricting smoking) based on its report (F/wCurd Tobacco Coop- c~r'~7fiw Sffltli/iznfiorl Corp. P. Clrlifd Sfates E~wirafzrw/zfn[ Prc~ft~ctior~ AXLVC!/, 857 E Supp. 1137 [M.D.N.C. 19941). This lawsuit, filed in 1993, was not the first in- stance of the tobacco industry attacking scientists and their rzrork on ETS. Internal industry memos were cited in an article in April 19% in the !&/l .%wf ]OUYH~/: "Determined to keep reports about second-hand smoke from mushrooming, the tobacco industry mo- bilized a counter attack in the mid-1980s to systemati- callv discredit anv researcher claiming perils from passi1.e smoke" (Twang 1998). In a February 25,1985, letter, Anthony Colucci, who was a top scientist at R.]. Revnolds Tobacco Company, wrote to H.E. Osmon, a dir&tor of public affairs at R.J. Reynolds: `I. we an- ticipate that if [then-EPA scientist James] Repace runs true to form there \viIl be a good deal of media copy \z,ritten about their [Repace's and naval researcher Alfred LoMyrey's] analyses and thus wc should begin eroding confidence in this w,ork as soon as possible" (H\z.ang 1998). A British-American Tobacco Company memo from lY88 details a meeting at which Philip Morris unveiled its plans to organize the "selection, in all pos- sible countries, of a group of scientists either to criti- cally re\,ie\v the scientific literature on ETS to maintain controversv, or to carry out research on ETS. In each countrv a group of scientists lvould be carefully se- lectecl,-and organized by a national coordinating sci- entist" (Boyse 1988, p. 2). The Philip Morris plan begins by draining up a list of "European scientists wrho have had no previous association with tobacco companies" (p. 2). The scientists are then contacted and asked if they are interested in problems of Indoor Air Quality: tobacco is not mentioned at this stage. CVs are obtained and obvious "anti-smokers" 01 those M.ith "unsuitable backgrounds" are filtered out. The remaining scientists are sent a literature pack containing approximately 10 hours of