British smoking victims' claims could turn legal tide

Martyn Day: Industry knew about death toll

ground breaking legal battle against the tobacco industry is unfolding in Britain with actions being brought by the law firm Leigh, Day & Company on behalf of some 50 lung cancer patients. If the case wins, it could set a powerful precedent for legal claims against tobacco giants and exert massive pressure on their profit base.

Solicitor and senior partner Martyn Day is representing the individuals involved in the case.

"Initially we had decided to represent 300 individuals with a range of tobacco-induced illnesses," says Day. "Legal aid was not granted, though, so we decided to narrow the suit down to lung cancer cases because of the problems in having too many different varieties of case, and because of the strong connection between lung cancer and cigarette smoking."

Leigh, Day & Company are suing the firms Imperial Tobacco and Gallaher for company negligence in refusing to warn customers as far back as forty years ago about the health hazards of tobacco.

"We are saying that in the 1950s the tobacco companies knew that cigarettes were killing a large number of their customers, and they knew it was the tar in the cigarettes that was doing the primary killing in terms of cancers," Day explains.

Tar cover up

"All companies in Britain have a duty to minimise risk if it is found that their products can cause harm. Therefore, we say that from around 1957 the tobacco companies had a duty to minimise risk by reducing tar levels in a positive and active way. We argue that the tobacco companies have never done this, and that the tar levels have simply dwindled as individual consumers have decided to smoke lower tar cigarettes--which is not a company action but a consumer reaction. If the companies had actually been open about what had been going on, they would have been able to drive the tar levels down."

Day will be acting on behalf of about 50 lung cancer patients. His firm first started issuing proceedings concerning groups of about a dozen individuals in November 1996. Because in Britain, unlike in the US, a class action has to name the individuals it represents, smaller groups make for easier handling.

"A number of cases are coming before the courts this summer [1997] in a procedural hearing. For this we are applying to the courts to allocate a judge to handle all the procedural matters. If this phase goes well, we would anticipate being in court in the autumn of 1997 and are optimistic that we will get a trial about a year after that."

Generic priority

The action has a double approach that encompasses individual claims that are grouped into common cases within a generic case. The generic issues comprise the basis for the claim in terms of the breach of duty of the tobacco companies in failing to minimise risk by the reduction of tar in cigarettes.

The suit has aroused much support from the medical and public health communities in Britain and from a wide range of experts who will contribute evidence.

"We are saying that the court should look at the generic issues first and the individual cases second," says Day. "Clearly, if we don't win on the generic cases we won't win on the individual cases. Tar is strongly linked to lung cancer, and as tar levels have come down lung cancer levels have also dropped. We are directly relating tar levels to the lung cancer from which our clients suffer. The issues involved are generic, that is they are the same for all of the individual cases. It is only when you get to the final hurdle of whether you can show that particular individuals would not have contracted the illness had they smoked cigarettes with less tar, that you get into the details of individual cases."

The suit has aroused much support from the medical and public health communities in Britain and from a wide range of experts who will contribute evidence. "We will be relying on epidemiological studies, clinicians, people expert in cigarette manufacturing, advertising and research to advise us and produce evidence in court."

As with numerous past legal efforts to pin down the culpability of tobacco companies in the health toll from smoking, the industry takes an evasive and filibustering course.

The potential impact of the British case is profound and could determine the way future suits are handled.

"The primary points of the tobacco companies are, firstly, procedurally that these are all individual cases, can only be dealt with as such, and that there is no point in looking at them all in the generic way that we are talking about. In this way they hope to smash the cases simply by overburdening them with costs. Secondly, they are saying that the cases are not strong enough, that the tar levels came down, and therefore what are we arguing about. We are saying that they had a positive duty to drive the tar levels down and not just leave it to the customers."

Diminished immunity?

Though the tobacco industry has usually succeeded in getting itself off the hook, the recent spate of cases in the US and the momentous defeat of the industry in some of them have created an atmosphere of increasing uncertainty about its immunity to court action. This in turn is influencing the way lawyers and clients in Europe view the prospects for progress on the legal front, despite the obvious differences between country's legal systems. Further purchase on tobacco industry culpability in smoking-related deaths has come with the release of vast amounts of documents form the industry that make clear its long-standing awareness of the effects of smoking.

Day's firm was able to get hold of documents concerning British American Tobacco (BAT Industries) that were used in The Cigarette Papers, the book that blew the lid off the tobacco industry's stance of guileless business practice. "We have had a reciprocal relationship with American lawyers to make sure that whatever we get they also get, and vise versa," says Day.

The potential impact of the British case is profound and could determine the way future suits are handled.

"This is the first case ever in Britain on a no-win-no-fee level and in terms of the scale of the action. Clearly, the implications are absolutely massive. Whatever judgement is reached will be definitive: if it is positive, anyone in future years who gets ill because of smoking would be able to use that judgement to claim compensation. We estimate that there are about 20,000 people a year who could claim. The average value of a claim is worth about 50,000--that's 1 billion in claims each year that the tobacco companies could face, and since they only make profits of 900 million a year they could be in some difficulty." n

Interview by Mark Waller

Boost for Legal Claims

The anonymous source was identified in the return address simply as "Mr Butts"--after the Doonsbury cartoon character.

In 1994 a bundle of 4,000 secret documents on the activities of Brown & Williamson and British American Tobacco was delivered to Professor Stanford Glantz at the University of California. The anonymous source was identified in the return address simply as "Mr Butts"--after the Doonsbury cartoon character. The documents blew the gaff on the duplicity of the tobacco industry on issues of smoking, nicotine addiction and health. They became headline news, have bolstered the leverage of legal cases brought by people suffering from smoking-related illnesses against the tobacco industry, and are thought to have influenced the Clinton administration's efforts to curtail the sale and promotion of cigarettes.

The Cigarette Papers is an exhaustive analysis of documents and includes other material subpoenaed by the US Congress and obtained by Profess of Glantz. The book shows that for more than three decades the tobacco industry has recognised internally that smoking is addictive and that use of tobacco products causes disease and death. At the same time it has followed a public relations and legal strategy designed to obscure these issues, thwart litigation and guarantee profits.

The Cigarette Papers is published by the University of California Press, and the Mr Butts documents are available on the World Wide Web as the Brown and Williamson Collection, at the Digital Library of the University of California, San Francisco.

Smoke Free Europe - A Forum for Networks - 14 AUG 1997

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