Justice Department Tobacco Civil Suit Faces Long Road

The Wall Street Journal takes an in-depth look at the Justice Department's civil lawsuit against the tobacco industry and notes that the federal government, despite spending five times more than the states do on smoking-related illnesses, is not as well positioned legally, politically and procedurally as the states were.

There are several legal theories which could serve as the basis for the suit, but each require leaps of logic and backdoor strategies, which aren't supported by some Justice Department lawyers.

Some of the lawyers consider the Medical Care Recovery Act (MCRA) to be the best approach to recouping the $22 billion a year the federal government spends on smoking-related illnesses.

MCRA gives the government the right to sue to recover medical costs in certain cases, but it has never been used to recover Medicare expenses, or to combine individual cases into a single group action.

According to Public Citizen lawyer David Vladeck, "If the Justice Department can't use aggregate proof, they're not going to get very far."

To strengthen their case, the Justice Department has supported legislation that clarifies the federal government's authority to file a nationwide suit.

The White House has dropped the idea, fearing that seeking such a law would show weakness. Brown & Williamson lawyer David Bernick says that even if the courts allowed a nationwide suit on tobacco, the U.S. would have to do more than just prove that smoking costs the government money. "It's got to show that the industry's wrongful conduct caused an increased level of consumption, and here's how much that cost. And they can't show that."

If the Justice Department is successful in bringing its case, there will be great pressure for the tobacco industry to settle.

John Coale, an antitobacco plaintiffs' lawyer who advises the White House says, "Nothing's crystal-clear. If you get by a motion to dismiss and a summary judgement, I think [the tobacco industry] will buckle. But getting by those things is going to be a battle."

Source: WALL STREET JOURNAL, (5/27/99) "US Faces Hurdles To Recovering Tobacco Heath Costs", David Cloud, p. A28