Author(s): Gottlieb, Mark; Sweda, Edward, Jr.; Guardino, Sara D. | Abstract: Abstract Cigarettes manufactured by fewer than half a dozen domestic companies cause approximately 440,000 deaths and $155 billion in medical and lost productivity costs each year in the United States. Despite this toll, Congress has not authorized the United States Food and Drug Administration to regulate cigarette design or marketing. Likewise, the Consumer Product Safety Commission cannot regulate cigarettes and the Federal Trade Commission has played a relatively passive role over the past two decades.Where legislative and regulatory approaches fail, courts have offered an alternative means of addressing the harm caused by cigarette manufacturers. Successful products liability lawsuits against cigarette manufacturers shift health and productivity costs of smoking from families and third-party payers back to cigarette companies, forcing increases in cigarette prices. Litigation thus has proven to be an effective public health strategy for reducing smoking.On September 22, 1999, the United States Department of Justice (“DOJ”) filed a lawsuit against the leading domestic cigarette manufacturers (collectively, “Defendants”) in the United States District Court for the District of Columbia. DOJ is seeking to stop the Defendants’ alleged decades-long misrepresentations and other fraudulent conduct under the Racketeer Influenced Corrupt Organizations Act (“RICO”). RICO authorizes DOJ to pursue criminal and civil sanctions against individuals and organizations that are engaged in a conspiracy involving certain federal felonies, including mail and wire fraud. DOJ is pursuing RICO’s civil sanctions only in this lawsuit. This law synopsis provides an overview of the lawsuit and its possible outcomes, reviews the basic allegations against Defendants and their responses, reviews the remedies DOJ seeks, and covers important events during the litigation’s pre-trial phase. The synopsis also summarizes the manner in which the trial will proceed, reports key testimony provided thus far, and outlines the impact of possible outcomes.
66 Purpose. To test the hypothesis that familial consent rates vary with the role of the physician in the donation process. Methods. We prospectively tracked 115 requests for organ donation occurring in 7 hospitals(mean bed size=764) in 1997. Four patterns of physician involvement were tracked: 1) physician delivers brain death diagnosis only, 2) physician makes the donation request only, 3) physician is involved in both the brain death explanation and the request and 4) physician is involved in neither the brain death explanation or the request. We used chi-square analyses to test the hypothesis that familial consent rates would be highest when a physician delivered the brain death diagnosis/explanation only, while other(non-physician) staff made the request for organ donation. Results. Familial consent rate was 71% for requests (N=24) where physicians handled the brain death explanation only, and dropped to 27% when physicians were involved in both the donation request and the explanation of brain death (N=22, p<.01). There was one case in which the physician was involved in the request but not the brain death explanation; and one case where there was no physician involvement at all. Both of these cases were non-consents.Conclusion. Family consent rates were highest when physicians explained brain death but refrained from making the request for organ donation.
Abstract Cigarettes manufactured by fewer than half a dozen domestic companies cause approximately 440,000 deaths and $155 billion in medical and lost productivity costs each year in the United States. Despite this toll, Congress has not authorized the United States Food and Drug Administration to regulate cigarette design or marketing. Likewise, the Consumer Product Safety Commission cannot regulate cigarettes and the Federal Trade Commission has played a relatively passive role over the past two decades. Where legislative and regulatory approaches fail, courts have offered an alternative means of addressing the harm caused by cigarette manufacturers. Successful products liability lawsuits against cigarette manufacturers shift health and productivity costs of smoking from families and third-party payers back to cigarette companies, forcing increases in cigarette prices. Litigation thus has proven to be an effective public health strategy for reducing smoking. On September 22, 1999, the United States Department of Justice (“DOJ†) filed a lawsuit against the leading domestic cigarette manufacturers (collectively, “Defendants†) in the United States District Court for the District of Columbia. DOJ is seeking to stop the Defendants’ alleged decades-long misrepresentations and other fraudulent conduct under the Racketeer Influenced Corrupt Organizations Act (“RICO†). RICO authorizes DOJ to pursue criminal and civil sanctions against individuals and organizations that are engaged in a conspiracy involving certain federal felonies, including mail and wire fraud. DOJ is pursuing RICO’s civil sanctions only in this lawsuit. This law synopsis provides an overview of the lawsuit and its possible outcomes, reviews the basic allegations against Defendants and their responses, reviews the remedies DOJ seeks, and covers important events during the litigation’s pre-trial phase. The synopsis also summarizes the manner in which the trial will proceed, reports key testimony provided thus far, and outlines the impact of possible outcomes.
In State Farm v. Campbell, the U.S. Supreme Court announced that “few awards exceeding a single-digit ratio between punitive and compensatory damages” will be constitutional. Several appeals courts have mistaken this language to be a strict mandate prohibiting punitive damages awards in excess of nine times the compensatory damages amount. This trend, however, may be changing. For example, in one recent smoking and health case brought against Philip Morris, an Oregon appeals court allowed a punitive damages award that was almost 97 times the compensatory damages award. This decision was based on the court’s finding that Philip Morris “used fraudulent means to continue a highly profitable business knowing that, as a result, it would cause death and injury to large numbers of Oregonians.” This article proposes that such wrongdoing (or, “primary” reprehensibility) justifies high punitive damages awards in the context of smoking and health litigation.
This Article examines the implications of improper document destruction (or, spoliation) in the context of smoking and health litigation, as well as the adequacy of existing penalties for such behavior. It begins with a discussion of a recent case from Victoria, Australia, McCabe v. British American Tobacco Australia Services, Ltd. (BATAS), including the trial and appeals courts' decisions regarding the appropriate penalties for BATAS' document destruction, as well as post-appeal developments in the case. Next, the Article reviews internal industry documents, including those discussing document retention policies that actually encourage destruction of internal documents, and correspondence discussing the contents of destroyed documents. Finally, the Article examines remedies for document destruction in the United States. Because current procedural remedies may not serve as adequate deterrents, the authors propose that courts impose independent civil, and potentially criminal, liability on companies that destroy documents improperly. For lawyers, legal scholars and judges, the tales from the tobacco wars provide an opportunity to consider the potentially serious consequences of document destruction, and the appropriate penalty or penalties a court should impose.
Despite their obligation to do so, tobacco companies often failed to conduct product safety research or, when research was conducted, failed to disseminate the results to the medical community and to the public. The tobacco company lawyers' role in these actions was investigated with a focus on their involvement in company scientific research, claims of attorney-client privilege and work-product cover, document concealment, and litigation tactics.Searches of previously secret internal tobacco industry documents located at Tobacco Documents Online. Additional searches included court transcripts, legal cases and articles obtained through Westlaw, PubMed, and the internet.Tobacco company lawyers have been involved in activities having little or nothing to do with the practice of law, including gauging and attempting to influence company scientists' beliefs, vetting in-house scientific research, and instructing in-house scientists not to publish potentially damaging results. Additionally, company lawyers have taken steps to manufacture attorney-client privilege and work-product cover to assist their clients in protecting sensitive documents from disclosure, have been involved in the concealment of such documents, and have employed litigation tactics that have largely prevented successful lawsuits against their client companies.Tobacco related diseases have proliferated partly because of tobacco company lawyers. Their tactics have impeded the flow of information about the dangers of smoking to the public and the medical community. Additionally, their extravagantly aggressive litigation tactics have pushed many plaintiffs into dropping their cases before trial, thus reducing the opportunities for changes to be made to company policy in favour of public health. Stricter professional oversight is needed to ensure that this trend does not continue.
65 Purpose. To identify factors which predict the likelihood of donating organs after death among African-Americans, non-Hispanic whites and Hispanics. Methods. Responses from a telephone survey conducted by the Gallup Organization in collaboration with the Partnership for Organ Donation and 17 OPOs across the United States were analyzed. Survey content sampled beliefs, attitudes, and knowledge levels concerning organ donation. Gallup selected respondents using a stratified, list assisted random digit sampling procedure. There were 4776 non-Hispanic whites, 631 African-Americans and 558 Hispanic respondents. We used logistic regression analyses controlling for age, gender, religion and education, within each ethnic group to determine whether the predictors for willingness to donate were consistent across ethnic groups. The dependent variable in these analyses was derived from responses to the following question: How likely are you to want to have your organs donated after your death? A “very likely” response was considered supportive while all other responses (“somewhat likely” to“very unlikely”) were considered non-supportive of donation.Results. 42.9% of non-Hispanic whites, 31.2% of Hispanics and 22.6% of African-Americans reported that they were “very likely” to want to donate their organs after their death (p<.001). Educational level predicted support for Non-Hispanic whites only. Two factors were significantly predictive of willingness to donate across all 3 groups: having had a discussion about death arrangements with family; and agreement with the statement that `doctors do all they can to save a life before pursuing donation'. One factor: concern that 'a loved one's body would be disfigured if their organs were donated'was predictive of non-support across all 3 groups.Conclusion. We found no significant barriers to support for donation that were peculiar to minorities though concerns about bodily disfigurement and disagreement that doctors do all they can for a patient before pursuing donation were more prevalent among minorities than non-Hispanic whites.
66 Purpose. To test the hypothesis that familial consent rates vary with the role of the physician in the donation process.Methods. We prospectively tracked 115 requests for organ donation occurring in 7 hospitals (mean bed size=764) in 1997. Four patterns of physician involvement were tracked: 1) physician delivers brain death diagnosis only, 2) physician makes the donation request only, 3) physician is involved in both the brain death explanation and the request and 4) physician is involved in neither the brain death explanation or the request. We used chi-square analyses to test the hypothesis that familial consent rates would be highest when a physician delivered the brain death diagnosis/explanation only, while other (non-physician) staff made the request for organ donation.Results. Familial consent rate was 71% for requests (N=24) where physicians handled the brain death explanation only, and dropped to 27% when physicians were involved in both the donation request and the explanation of brain death (N=22, p<.01). There was one case in which the physician was involved in the request but not the brain death explanation; and one case where there was no physician involvement at all. Both of these cases were non-consents. Conclusion. Family consent rates were highest when physicians explained brain death but refrained from making the request for organ donation.
In State Farm v. Campbell, the U.S. Supreme Court announced that “few awards exceeding a single-digit ratio between punitive and compensatory damages” will be constitutional. Several appeals courts have mistaken this language to be a strict mandate prohibiting punitive damages awards in excess of nine times the compensatory damages amount. This trend, however, may be changing. For example, in one recent smoking and health case brought against Philip Morris, an Oregon appeals court allowed a punitive damages award that was almost 97 times the compensatory damages award. This decision was based on the court’s finding that Philip Morris “used fraudulent means to continue a highly profitable business knowing that, as a result, it would cause death and injury to large numbers of Oregonians.” This article proposes that such wrongdoing (or, “primary” reprehensibility) justifies high punitive damages awards in the context of smoking and health litigation.
