2007 – Not a Good Year for Tobacco Defendants (Part 1)

After years of scorched earth litigation tactics and many successes, the tide appears to be turning. The tobacco industry is no longer dominating the court system. Those who have suffered the ravages of smoking are being heard – and not just in Florida where the Florida Supreme Court rendered a stunning defeat to tobacco defendants in Engle that will be felt for years to come as former class members proceed with individual lawsuits and trials.

This past summer the United States Supreme Court rejected Philip Morris’ ploy to transfer a number of tobacco lawsuits to federal court under the premise that leveled a devastating blow to Philip Morris when it ruled that the defendant was not permitted to remove state court actions to federal court under the “federal officer” exception. This appeal involved lawsuits from 20 different states against Philip Morris over marketing deception and violation of state consumer protection laws with regard to the sale of “light” cigarettes. The Supreme Court determined that the fact that the tobacco industry is regulated by the United States government doesn’t mean that state courts are without authority to oversee claims that arise under state law. This ruling is important not only to those engaged in tobacco litigation, but also with regard to claimants who have been harmed by pharmaceutical and medical device products and seek compensation in state court actions. Over the past couple of years, all of these industries have banded together in claiming virtual immunity against lawsuits over defective products due to the concept of “federal preemption”. Thankfully, most federal courts that have been faced with this issue in the past few months have rejected such a notion.

“This is a big loss of the industry. If the appeals court ruling had been upheld, it would have basically eliminated states courts as a venue for lawsuits against the tobacco companies,”

said Edward L. Sweda, Jr., senior attorney for the anti-smoking Tobacco Products Liability Project at Northeastern University School of Law in Boston.