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Editor: C. Calvin Warriner
Profession: Cigarette & Tobacco Attorney

In the paraphrased words of Mick Jagger, "Time is on [Tobacco's] side." And as time passes, a lot less claimants, or their estates will come "runnin' back" to court. Well, perhaps those claimants who are still alive will be wheeled over the threshold, or gently helped to the witness stand in the courtroom.

With Tobacco, it's all about controlling the litigation process. It is well-known that tobacco companies and their distributors in suit around the United States have developed a decades-old litigation system focused on slowing justice to a crawl. That well honed system has been unparalleled in causing continuous unrestrained, "benign" delay. For the ultimate example, let's take a look at the Engle lawsuit in Florida.

It has taken the Engle courts over a decade to painstakingly reach the decision that the tobacco defendants have released an unreasonably dangerous product, addiction formulated cigarettes, into the marketplace. We are now clear that cigarette smoking caused an estimated former class of an esimated 700,000 smokers in Florida to contract a list of several diseases. Meanwhile,a multitude of those smokers have been dying. Some had already passed away before the Engle litigation had begun. In fact many of their doctors are no longer alive either. Despite all that, for the moment because of procedural difficulties, tobacco has sidestepped the $145 billion punitive damages Jury award against them.

Meanwhile during this lull, it's business as usual for Tobacco. Right around the time the Florida Supreme Court handed down its revised opinion in Engle, Philip Morris closed a whopper of a deal in Pakistan. On January 19, 2007, Philip Morris International (PMI) announced that it would be acquiring an additional 50.21% stake in Pakistan's Lakson Tobacco Company, LTD (Lakson). The fact is that PMI already owns 40% of Lakson, so PMI now has control of over 90% of that company.

Reportedly, PMI will pay a hefty amount of cash for that acquisition. Evidently, the potential $146 Billion punitive damages award isn't giving PMI any pause about future investment in cigarette production. PMI seems bound and determined to forge ahead in foreign countries that will permit it to sell cigarettes to children, or to formulate more addictive cigarettes any way it pleases, activities now forbidden in the US.

Lakson is no small concern, it produces about 30 billion cigarettes a year, holds 47% of Pakistan's growing cigarette market, and Lakson also manufactures Marlboro cigarettes. PMI's President for the Western Asia Region stated that his company was looking forward to further solidify its market position and to ensure the continued success of PMI in Pakistan.

Enough about success stories and rags to riches regalia. Let's focus our attention back on the 700,000 potential claimants in Engle. The claimants (or their estates, more likely), and their attorneys are already taking a closer look at what will be necessary to file individual causes of action in Florida. Can you imagine 700,000 requests for medical records? That thought should send shudders up and down the spines of providers, everywhere. How about filing 700,000 complaints, or serving 700,000+ sets of interrogatories and 700,000+ production of document requests upon defendants...and then serving another 1.4 million such requests upon plaintiffs? Let's not even venture to think about the potential millions of deposition tomes both sides will generate. Of course, there will be several million motions, millions of memoranda of law, millions of letters to and from counsel, to and from the courts, etc. Maybe we should all invest in Boise Cascade, Georgia Pacific, or FedEx.

And all of those myriads of potential claimants now have less than one year, that is, until the middle of January of 2008 to file their individual complaints. It is no wonder Judge Robert Kaye of the Eleventh Circuit, in his Final Judgment and Amended Omnibus Order in Engle, stated the following:

At the close of Defendants' case, it has become apparent to this Court that class action treatment is superior to pursuing this matter by individual claims. If Plaintiffs were required to try their cases individually, issues such as reliance, causation, defendants knowledge, intent, or reckless disregard, and defendants' financial capacity, etc., will have to be litigated many thousands of times. This is more then mere speculation. After having sat through the enormous complexities involved in this trial, it is self-evident that any trial would have to involve similar proceedings. And if there were to be individual trials, it is inevitable that the common issues of Defendants' conduct would become a predominant aspect of each trial, which could result in conflicting verdicts- thus proving that common issues become the most prominent aspect of this case.

Perhaps judicial economy might have best been served by creating a limited number of plaintiffs' classes, corresponding with each type of court-listed disease. At least there would have been logical aggregations of plaintiffs with common issues, and perhaps an opportunity for more efficient management.

Judging from all of the above, everything concerning Engle is up in the air, and the air is thick with substance and procedure. Tobacco, however, is continuing to enjoy a monopoly on time and it has more than a modicum of tobacco resources that will permit it to extend the now 12-year-old waiting period, yet another decade or so.

Among those tobacco resources are the millions of smokers that Philip Morris now controls and continues to cultivate in Pakistan, and those like them, who are being lured to a life of addiction and illness elsewhere in the smoke-ridden hinterlands of un-regulated opportunity.

By the way, PMI's share of punitive damages in Engle was somewhere around $79 Billion of the $145 Billion dollar Jury award. What does this mean to PMI? Let's take a look at some simple numbers. PMI boasts the following for FY 2005:

2005 results Net revenues: USD 45.3 billion Operating companies income: USD 7.8 billion Unit volume: 804.5 billion Worldwide market share: 15% Source: PMI

Let's do the simple math. If PMI continues to sell 804.5 billion cigarettes a year, in ten years it would sell 8 trillion cigarettes. That would mean that if PMI charged only one (1) cent extra per cigarette over that 10-year period, it could support the punitive damages award in style and have a billion left over to purchase a couple of more companies as large as Lakson. Punis or no punis...they're not going out of business anytime soon. That is one primary reason why...

There ought to be a penalty.