‘Let’s sue the killers’

---

Smokers, their families, and organisations will likely file lawsuits against tobacco companies in Sri Lanka very soon” was the writing on the wall; well, on newspaper pages, to be precise.

What?! To take Tobacco Company, almost fully owned by British American Tobacco (BAT), to Courts? And prove that they knowingly contributed to the premature death and disease of a particular person? That they deceived the smoker to believe that tobacco was not harmful? That the cancer was caused by smoking primarily, and not by other factors? That the smoker did not knowingly assume the risk of cancer when he decided to smoke?

Fat chance! When it was such an uphill task to get the legal clearance to enact the gazette by the Health Minister to feature pictorial warnings on cigarette packs, does anybody honestly think one can WIN a case against Ceylon Tobacco Company (CTC) on harm caused to an individual and his family? …. Nah!

In the USA, a country which has made unbelievable progress in the fight by common people against Big Tobacco, it took over a quarter of a century to produce results in individual tobacco litigations.

Following the revolutionary Surgeon General’s Report on Smoking and Health in 1964, people began to file lawsuits against tobacco companies in the USA.

Until the 1990s, the tobacco companies continued to win. Many judgments awarding damages to smokers and their families were made, but subsequently reversed by Appeal Courts, after successful and jubilant law battles by Big Tobacco’s rich lawyers.

The first big win for plaintiffs in a tobacco lawsuit occurred in February 2000, when a California jury ordered Philip Morris to pay $51.5 million to a California smoker with inoperable lung cancer.

How about taking CTC, almost fully owned by BAT, to Courts? And prove that they knowingly contributed to the premature death and disease of Mr. Kariyawasam or Mr. Jazeel of Galenbindunuwewa or Sammanthurai?

In November 1998, 46 federal states and the lawyers of four of the largest tobacco companies, including BAT, agreed to settle the state cases, in what is today known as the Master Settlement Agreement (MSA). The settlement was characterized by:

1.Tobacco companies agreed to refrain from engaging in certain advertising practices, particularly ad campaigns that marketed cigarettes towards kids.

2.Tobacco companies agreed to pay annual sums of money to the states to compensate them for health-care costs related to smoking (a minimum of $206 billion over the first twenty-five years).

3.The settlement created and funded the National Public Education Foundation, dedicated to reducing youth smoking and preventing diseases associated with smoking.

4.Tobacco companies dissolved three of the biggest tobacco industry organisations.

[Source: http://www.nolo.com/legal-encyclopedia/tobacco-litigation-history-and-development-32202.html]

Tobacco companies had to make their internal documents available for public scrutiny as well. This turned out to be really interesting, as what were mostly inferred conclusions, were found out and demonstrated to be facts: Most important was that the tobacco companies knew that tobacco was addictive and
caused cancer and other diseases, but never informed the consumer.

Since the MSA, tobacco litigation has been taken to a new level, largely thanks to what was revealed in the internal documents. Suddenly it became somewhat less complicated to prove that Big Tobacco was engaging in predatory and illegal marketing. The latest climax was an American court in Florida ordering US$23.6 billion payouts to Cynthia Robinson, a widow of a smoker. One iconic highlight, in this long litigation saga, is the judgment given by the enigmatic Honorable Gladys Kessler, a renowned judge of the U.S. District Court for the District of Columbia. The “fabric of her priceless efforts both on and off the bench” is said to “reflect a common theme: a relentless dedication to the rule of law and a vision that the law can be a vehicle for change.”

In 2006, Judge Kessler convicted, not only the major American tobacco companies, but the trade and scientific units, of forming an illegal fraudster “enterprise” to swindle the American people. This great woman, who also ordered temporary halts to Guantánamo force-feeding, ordered the cigarette companies, including BAT, to:

1.Publish “corrective statements” telling the public that they had lied about the dangers of smoking, secondhand smoke, and nicotine addiction.

2.Stop challenging the evidence that these statements are true.

[Source: http://www.tobacco.ucsf.edu/step-forward-implementing-rico-ruling-against-big-tobacco]

Of course, the tobacco companies fought hard against this decision and order. Eight long years later, early this year, four American tobacco companies, including BAT, reached agreement with the US Department of Justice to fund large, scale corrective advertising about tobacco control. These advertisements will include the statement that the companies “deliberately deceived the American public.”

Now, how about taking CTC, almost fully owned by BAT, to Courts? And prove that they knowingly contributed to the premature death and disease of Mr. Kariyawasam or Mr. Jazeel of Galenbindunuwewa or Sammanthurai? That the CTC deceived Mr. Kariyawasam or Mr. Jazeel  to believe that cigarettes were not that harmful? That their cancer was caused by smoking primarily? That they did not assume the risk of cancer when they decided to smoke?

Well, not impossible, it seems. Another herculean task, of course. Doable? Yes, doable. Provided doctors and other health workers, lawyers, other leading professionals, administrators, political and community leaders, smokers, ex-smokers, their families and the People of Sri Lanka unite and exert a concerted effort.
Provided that the professional organizations and bodies fully support as well as, at times, initiate certain processes. Provided that justice prevails. Or we make sure it does.