Saturday, August 3, 2013

ALEC (part two): How Tobacco Companies gamed the legal system for 50 years

The American legal system relies heavily on adversarial representation. There are two sides to every court case, the plaintiff and the defendant. These two are theoretically balanced. Each side has a lawyer and the lawyers argue in open court, trying to persuade the judge or jury to rule in their favor.

This system has its flaws. Not all lawyers are equally skilled, or equally experienced. Both skill and experience affect the outcome of a case. Rich clients can afford better lawyers than poor clients. The legal system ignores this flaw in its logic.

Product liability law is completely different, especially as it is practiced in the U.S. today. One side, the manufacturer of the product, has infinitely more resources than users of the product. An inexperienced plaintiff's attorney will be hard pressed to prevail over a company that keeps lawyers on retainer for years while they learn the complexity of the law.

Victor E. Schwarz, counsel for the American Tort Reform Association (ATRA) and ALEC has a long history of supporting the interests of what he calls “outlaw defendants”--tobacco and asbestos companies. Schwartz was associated with ATRA at least as long ago as 1999, when he wrote a statement as Counsel of ATRA in support of the Litigation Fairness Act.

The first companies threatened by product liability suits were the asbestos mining and manufacturing companies and the tobacco companies. From 1950 until 1980, tobacco companies overwhelmed victims who had contracted cancer by using their products with expert witnesses and skillful attorneys.1

Until then, cigarette companies boasted that they had never lost a liability suit. But plaintiffs began winning judgments as the evidence piled up that cigarette smoking was addictive and did cause cancer. In 1983, Rose Cipollone filed suit claiming that her lung cancer had been caused by smoking cigarettes and that she had been deceived by the claims of cigarette companies that smoking was not addictive and did not cause cancer. Cipollone's husband won a judgment of $400,000 in1984 after his wife had The first case to award a judgment to a plaintiff was Cipollone v. Liggett Group, Inc. (1992). The case was later reversed by the Supreme Court, but by that time thousands of documents had been leaked to the public detailing how, in the 1960s, tobacco company executives had knowledge that cigarettes were addictive and caused cancer. The executives concealed this information and continued to run advertisements claiming that cigarettes were harmless.

Schwartz made numerous public statements supporting the tobacco companies against their victims. He must have known about ATRA's campaigns of disinformation on the dangers of tobacco and asbestos. Schwartz had connections with the American Tobacco Institute(ATI) as well. The ATI was the industry's public relations group that carried out corporate plans to deceive and confuse the American people. Judge Gladys Kessler, in United States v. Philip Morris (2006), ruled that the tobacco companies had engaged in racketeering for decades. She singled out lawyers in her judgment:

Finally, a word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and second hand smoke, and the addictiveness of nicotine. At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified “friendly” scientific witnesses, subsidized them with grants from the Center for Tobacco Research and the Center for Indoor Air Research, paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege.”2
Schwartz has been a product liability attorney with Shook, Hardy, and Bacon, a Washington, D.C., law firm that was singled out for its actions over 100 times in Judge Kessler's final judgment. Schwartz also lobbied for laws that protected corporations from law suits. His experience in this field was well-suited to ALEC's purpose, which is to pass laws that assist its corporate clients.
1UCSF Legacy Tobacco Documents Library, Memorandum to the Tobacco Institute 2, 1985,

2Amended Final Opinion 4, US v. Phillip Morris(2006), US District Court for the District of Columbia, Civil Action No. 99-2496 (GK).

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