Lawyers' groups wary of tobacco deal

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'Every detail must be scrutinized'
'A lot of lawyers interested'
Asbestos case as precedent?
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June 23, 1997
Web posted at: 9:52 p.m. EDT (0152 GMT)

From Senior Washington Correspondent Charles Bierbauer

WASHINGTON (CNN) -- The closed-door tobacco settlement has many lawyers worried. That's because the deal places a limit on tobacco's liability for lawsuits, a restriction with uncertain implications in the legal world.

For instance, airline flight attendants who were exposed to smoking on planes are in court now in Florida in a class action suit against tobacco companies.

Norma Broin, an American Airlines flight attendant, is the lead plaintiff in the suit against Philip Morris and other tobacco companies. Attorneys estimate that as many as 60,000 flight attendants have suffered from the ill-effects of second-hand smoke.

But as the tobacco agreement is now written, future class action suits on behalf of groups would be banned by the tobacco agreement.

"The possibility of major class action victories, major punitive damages, is down the drain," Ralph Nader of the Center for Study of Responsive Law said.

One negotiator, who has pursued class action suits for his clients, admits there's a trade-off.

"You're giving up your right to join a class action, but what you're getting in exchange is $368 billion of public good, FDA regulation and many, many other things," trial lawyer John Coale said.

The proposed agreement would settle 40 state lawsuits seeking recovery of Medicaid funds spent treating sick smokers. In return for payments up to $15 billion a year and curbs on tobacco advertising and marketing, the companies won a ban on class action lawsuits, a $5 billion annual cap on actual damages they would pay to sick smokers and exemption from punitive damages for past wrongdoing.

'Every detail must be scrutinized'

The agreement put together by lawyers is now being dissected by lawyers -- and there's plenty of disagreement.

The Association of Trial Lawyers of America issued a statement that said "every detail must be thoroughly scrutinized for what limitations it places on Americans' legal rights."

The trial lawyers association opposes the idea of freeing cigarette makers from paying punitive damages. That's also where trial lawyers make a lot of their money. Individuals could still sue manufacturers, although they've had few successes against such rich corporations.

'A lot of lawyers interested'

"There are a lot of lawyers interested in this," Coale said. "There's a very attractive fund out there, some three to four billion dollars set aside to pay for these cases."

Critics question if that will be enough.

"Here we're talking about people who are injured 10 or 20 years ago," John Banzhaf of Action on Smoking and Health said.

"They haven't yet discovered that spot on their lungs so they can't sue, and Congress is going to say when that suit comes, you can't get full damages, we're going to limit you."

Asbestos case as precedent?

Congress has not yet addressed the agreement and ultimately the Supreme Court may have to. The court this week is to rule on a case that would limit damages in class action suits involving illnesses from exposure to asbestos.

The asbestos case will be watched for clues on how the court might rule on limiting tobacco suits. Anti-tobacco forces say they will launch a constitutional challenge to the tobacco deal.

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