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TORT LAW & LEGAL NEWS: SUPREME COURT TO REVIEW STATE JURY AWARD AGAINST PHILIP MORRIS

Last week, the U.S. Supreme Court agreed to review an Oregon jury award against "tobacco giant Philip Morris."  (See AP story here, and Supreme Court's grant of cert. here).  In the case of Williams v. Philip Morris, the plaintiffs were the family of Jesse Williams, a long-time smoker of Marlboro brand cigarettes who died from lung cancer.  At trial, the jury found that Philip Morris engaged in common law fraud based on 50 years of lying about the health effects of its tobacco products.  The jury awarded $800,000 in compensatory damages to the family and awarded $79.5 million in punitive damages against Philip Morris.  Pursuant to state law, the punitive damages are paid to a special state fund benefiting crime victims.   The case's history regarding the punitive damages award has been a tortuous one.  Initially, the trial judge reduced the jury's award to $32 million (modest given the size of the corporation and history of willful fraud).  On appeal, the Court of Appeals reinstated the jury's original award and the Oregon Supreme Court declined to review the decision.  Upon appeal to the U.S. Supreme Court, the case was sent back to the Oregon Court of Appeals to consider the case in light of the high court's then recent decision in State Farm Insurance Co. v. Campbell.  After applying the standards of that case, the Oregon Court of Appeals upheld its earlier decision.  Upon further appeal from Philip Morris, the Oregon Supreme Court agreed to review the Court of Appeals' decision.  The Oregon Supreme Court (opinion here) upheld that decision finding:

In summary, Philip Morris, with others, engaged in a massive, continuous, near-half-century scheme to defraud the plaintiff and many others, even when Philip Morris always had reason to suspect -- and for two or more decades absolutely knew -- that the scheme was damaging the health of a very large group of Oregonians -- the smoking public -- and was killing a number of that group. Under such extreme and outrageous circumstances, we conclude that the jury's $79.5 million punitive damage award against Philip Morris comported with due process, as we understand that standard to relate to punitive damage awards.

It will be interesting to see whether the U.S. Supreme Court shares the Oregon courts' outrage at the decades of harm caused by Philip Morris' conduct or whether their outrage will be of a different sort.  See the Tobacco Resource Center's backgrounder and commentary on this case here. 

TORT LAW & LEGAL NEWS: LEAD LAWSUITS AGAINST COLA COMPANIES

The Los Angeles Times reports that California Attorney General and Los Angeles City Attorneys filed suit earlier this week against the Coca-Cola Co. to prevent the company's affiliates from "using carcinogenic lead-based paint on labels on soda bottles imported from Mexico."  The lawsuit is based on California law that protects the health and safety of citizens by permitting governments and private citizens to file suit against businesses that fail to warn consumers when products contain toxic chemicals known to cause cancer or birth defects. 

Late last month, Pepsi settled a similar lawsuit with the state of California, agreeing to pay a $1 million civil penalty and to phase out lead from the ink on soft drink labels imported from Mexico.  The L.A. Times reports that labels contained lead content as high as 45 percent.   Private attorney Michael Hirst was instrumental in bringing public attention to matter when his firm notified the California Attorney General and Los Angeles City attorneys of the presence of lead in soda and both lead and cadmium in soda labels.   

SAFETY & HEALTH NEWS: NANOTECHNOLOGY DRAWING SCRUTINY

Emerging commercial applications of nanotechnology are increasingly drawing scrutiny from health and safety advocates and government regulators.  The Washington Post reports that a coalition of consumer and environmental groups petitioned the FDA to better regulate personal care products containing nanoingredients.  Nanoingredients are defined as being smaller than 100-millionths of a millimeter in size and often "exhibit novel chemical or biological properties."  Scientists are beginning to understand the risks of such products and animal studies have shown that nanoparticles can penetrate tissues and cells and migrate throughout the body with the potential to cause biochemical damage. 

Last month, the Washington Post reported on workplace safety issues arising from nanotechnology.  Post reporter Rick Weiss noted:

As the U.S. economy strides into the age of nanotechnology, thousands of workers like these are participants in a seat-of-the-pants occupational health experiment.  No state or federal worker-protection rules address the specific risks of nanomaterials, even though many laboratory and animal studies have shown that nano-size particles -- those on the order of a millionth of a millimeter -- spur peculiar biological reactions and can be far more toxic than larger granules of the same chemicals.

For an overview of health issues related to nanotechnology in the workplace, see Hazards magazine's collection of articles here and Andrew Maynard's presentation here. The National Institute of Occupational Safety and Health (NIOSH) also maintains an informative website regarding emerging health and safety issues related to nanotechnology.  Later this year, NIOSH is co-sponsoring a conference in Cincinnati, Ohio examining current research and issues in this area. 

SAFETY NEWS: AFL-CIO RELEASES 15TH ANNUAL DEATH ON THE JOB REPORT

In past weeks, the AFL-CIO released the 15th edition of its annual report titled Death on the Job: The Toll of Neglect.  The report surveys U.S. Bureau of Labor Statistics data and finds an increase in fatal workplace injuries.  Over the most recent reporting period, 5,703 deaths resulted from traumatic injuries.  Fatalities of Latino and foreign-born workers also significantly increased. In addition to fatalities, more than 12,000 workers were made ill or injured each day of year.  Bureau of Labor Statistics data does not include fatalities resulting from occupational diseases, which are estimated to cause between 50,000 and 60,000 worker deaths each year.  The full report can be downloaded from the AFL-CIO website here.

TORT LAW & LEGAL NEWS: ANOTHER MISLEADING CHAMBER OF COMMERCE REPORT

Last month, the Chamber of Commerce released its annual report castigating those states where citizens have comparatively strong rights to have health and safety claims heard in court and decided by juries.  The Chamber's annual publication has become more well-known for its litany of factual errors than for its analysis of the country's tort laws.  For a thorough analysis of this year's report, see Honolulu personal injury attorney Wayne Edwards' article here.  (See also People's Over Profit's analysis here).

An example of the Chamber's misleading methodology can be found in the report's survey of Michigan corporate attorneys regarding the fairness of punitive damages laws in that state.  Approximately, 40% of respondents awarded the state punitive damages laws a grade of C, D, or F, suggesting that punitive damages laws in Michigan are viewed as unfriendly to business interests.  Omitted from the Chamber's report is the critical fact that punitive damages claims are prohibited in state law tort claims in Michigan.  With this information, a different conclusion might be reached from the attorney's responses.  Perhaps even corporate attorneys recognize that gross misconduct by their clients and others should be punished with punitive damages and that the Michigan's laws should be reformed accordingly.