COMMONWEALTH OF PENNSYLVANIA BY D. MICHAEL FISHER,
IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF                         PENNSYLVANIA,
PLAINTIFF,

                                     V.

PHILIP MORRIS, INC.; R. J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO  CORPORATION; B.A.T. INDUSTRIES, P.L.C.; THE  AMERICAN TOBACCO COMPANY, INC. c/o BROWN & WILLIAMSON TOBACCO  CORPORATION; LORILLARD TOBACCO COMPANY; LIGGETT GROUP, INC.; UNITED STATES TOBACCO COMPANY; THE TOBACCO INSTITUTE, INC.; THE
COUNCIL FOR TOBACCO RESEARCH-U.S.A., INC.; SMOKELESS TOBACCO COUNCIL, INC.; and HILL AND KNOWLTON, INC.,
DEFENDANTS  :
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: COURT OF COMMON PLEAS
PHILADELPHIA COUNTY,
PENNSYLVANIA
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Case No.: No. 97-2443

April Term, 1997
 

PETITION TO INTERVENE BY ROBERT B. SKLAROFF, MD,
WILLIAM T. GODSHALL, JEFFREY BARG AND SMOKE-FREE PENNSYLVANIA

 Robert B. Sklaroff, MD, William T. Godshall and Jeffrey Barg [hereinafter “Intervenors”] file this Petition to Intervene in the above captioned matter pursuant to Rule 2328. of the Pennsylvania Rules of Civil Procedure and, in support thereof, aver as follows:

Nature of the Proceedings

1. The PA Attorney General [hereinafter “AG”] filed suit against tobacco companies and tobacco-related companies [hereinafter “Defendants”] in April 1997.

2. The AG announced a proposed settlement of this suit on November 16, 1998.

3. The Intervenors seek party status in these proceedings; they also seek an Order rejecting the proposed settlement.

Intervenors’ Rights and Interests

4. The Intervenors are citizens of the Commonwealth of Pennsylvania, each having demonstrated strong interest in pursuing legal remedies to attain tobacco control.

5. Dr. Sklaroff has been an advocate for tobacco control during the past two decades, and he presently serves as a consultant to the plaintiffs in recently-filed class action litigation claiming inter alia tobacco companies violated federal civil rights law through the promotion of menthol-containing cigarettes.

6. Mr. Godshall has been an advocate for tobacco control during the past decade, and he presently serves as a leader of the major national coalition promoting tobacco control (Save Lives Not Tobacco:  A Coalition for Accountability).

7. Mr. Barg has been an advocate for tobacco control during the past decade, and he presently serves as Chair of both the Coalition for a Tobacco-Free Pennsylvania and the Tobacco Education and Action Coalition for Health (TEACH).

8. The Intervenors have taken actions against Tobacco Companies for past conduct, acts or omissions (including damages incurred in the future arising therefrom).

9. The Intervenors have asserted Claims directly or indirectly based on, arising out of or in any way related, in whole or in part, to (A) the use, sale, distribution, manufacture, development, advertising, marketing or health effects of, (B) the exposure to, or (C) research, statements, or warnings regarding Tobacco Products.

10. The Intervenors contemplate taking actions against Tobacco Companies for future conduct, acts or omissions, inclusive of monetary Claims directly or indirectly based on, arising out of or in any way related to, in whole or in part, the use of or exposure to Tobacco Products manufactured in the ordinary course of business, including without limitation Claims for reimbursement of health care costs allegedly associated with the use of or exposure to Tobacco Products.

11. Such Tobacco Companies befit the definition of "Released Parties" in section “(oo)” in the proposed settlement [“all Participating Manufacturers and their past, present and future Affiliates, divisions, officers, directors, employees, representatives, insurers, lenders, underwriters, Tobacco-Related Organizations, trade associations, suppliers, agents, auditors, advertising agencies, public relations entities, attorneys, retailers and distributors”].

12. Intervenors should be granted the full rights of a party in this matter, for each or any one of the following reasons.

A. The Interests of the Intervenors will be Directly Affected.

13. The Intervenors are committed to attaining Tobacco Control through whatever means necessary, inclusive of litigation.

14. The Intervenors (both individually and through organizations in which they have held leadership positions) have applied for and, in some instances, acquired grants from public agencies pursuant to the goal of attaining Tobacco Control.

15. The Intervenors attain personal modest economic benefits (disproportionate to the  energies expended in such efforts) that would be forestalled were the proposed settlement implemented.

16. The Intervenors have identified defects in the proposed settlement that would impair their ability to maximize the public health.

17. Therefore, the implementation of the proposed settlement—through the disposition of the claims of the AG—would adversely affect the Intervenors, and the Intervenors have legally enforceable interests (although not bound by the proposed settlement) that would be precluded by the proposed settlement.

18. The allegations in  13 through 17 demonstrate the interests of the Intervenors will be directly affected if the proposed settlement is approved, all of which establishes the rights of the Intervenors pursuant to Rule 2327 of the Pennsylvania Rules of Civil Procedure.

19. No other existing party to the proceedings will adequately represent the interests of the Intervenors, as evidenced by support for the proposed settlement.
 

B. The Intervenors’ Intervention Serves the Public Interest.

20. The Intervenors’ intervention in this case will foster the public interest for the following reasons.

21. The implementation of the proposed settlement would allow greater freedoms to promote tobacco addiction among youth than have settlements implemented in four other states (Mississippi, Florida, Texas and Minnesota).

22. The implementation of the proposed settlement would preclude future litigation by individuals and governmental subunits of the Commonwealth of Pennsylvania, thereby limiting the capacity to obtain recovery for illnesses caused by tobacco.

23. The implementation of the proposed settlement would not empower the Federal Food and Drug Administration to control tobacco use, thereby allowing the current national epidemic to grow among both youth and adults.

24. The proposed settlement would not limit the access of youth to tobacco through use of tobacco vending machines and self-service displays, concerns that have been addressed in Philadelphia but not throughout the Commonwealth of PA.

25. The proposed settlement would not implement key proposals comparable to those issued by the U.S. Surgeon General in the recent monograph on Minorities, and these individuals comprise a disproportionately high number of patients within the Medicaid population that is the focus of the current litigation.

26. The allegations in  20 through 25 demonstrate the interests of the Public Health as averred by the Intervenors will be directly affected if the proposed settlement is approved and, in conjunction with their direct manifestations (as depicted in allegations  13 through 17), these allegations establish the rights of the Intervenors pursuant to Rule 2327 of the Pennsylvania Rules of Civil Procedure.

27. No other existing party to the proceedings will adequately represent the interests of the Intervenors, as evidenced by their support for the proposed settlement.

C. The Intervenors Possess Rights Conferred by Applicable Law.

28. Under Article I,  1 of the Pennsylvania Constitution, Intervenors possess constitutionally-protected liberty interests in the preservation of their relationships with present- and former-smokers, inclusive of their capacity to serve as a treating physician and/or a paid advisor regarding the rights held by these individuals.
29. As per  391 of the AG’s Complaint, under Restatement (Second) of Torts 323 and 324A, commencing in January, 1954 and continuing to the present, defendants, individually and in concert, have violated a special responsibility and duty to Pennsylvanians to accept an interest in the public's health as a basic and paramount responsibility; to cooperate closely with those who safeguard the public health; to aid and assist the research effort into all aspects of tobacco use and human health; to continue to research and otherwise undertake all possible efforts to learn all the facts and to discover the truth about use of tobacco products and health; and to disclose to the Commonwealth and to the residents of Pennsylvania complete and accurate information about the adverse effects of the use of tobacco products on human health.

30. The Fair Cigarette Labeling & Warning Act [15 US Code § 1331 & 1334] precludes state-level preemption and/or efforts to regulate cigarette advertising.

31. The allegations in  28 through 30 demonstrate that implementation of the proposed settlement would improperly interfere with the Intervenors’ rights conferred by applicable law and, in conjunction with their direct manifestations (as depicted in allegations  13 through 17), they establish Intervenors’ rights to intervene pursuant to Rule 2327 of the Pennsylvania Rules of Civil Procedure.

32. No other existing party to the proceedings will adequately represent the interests of the Intervenors—who are among those who safeguard the public health within the meaning of the AG’s Complaint and within the context of the above citations—as evidenced by their support for the proposed settlement.

The Intervenors’ Position and Objections to the Proposed Settlement.

33. When permitted to intervene as parties to the instant proceedings, the Intervenors will present the following factual issues.

34. —Whether the proposed settlement will provide sufficient monies to the Commonwealth of Pennsylvania, noting comparison with those being provided to residents of other states, the “back-loaded” financing therein, and the limited liability of parent entities to provide payments if subsidiaries become bankrupt.

35. —Whether the proposed settlement will “chill” efforts to attain more stringent laws and regulations that would restrict youth access to tobacco, with specific regard to advertising and promotion.

36. —Whether the proposed settlement will illegally preclude any of the following persons or entities from seeking relief from future claims against the Defendants, inasmuch as none has provided consent as to any of its provisions:  Pennsylvania’s subdivisions (political or otherwise, including, but not limited to, municipalities, counties, parishes, villages, unincorporated districts and hospital districts), public entities, public instrumentalities and public educational institutions; and persons or entities acting in a parens patriae, sovereign, quasi-sovereign, private attorney general, qui tam, taxpayer, or any other capacity.
 
 
 

37. —Whether the proposed settlement will illegally preclude any person or entity from seeking relief on behalf of or generally applicable to the general public in Pennsylvania or any group of Pennsylvanians.

38. —Whether the proposed settlement will illegally preclude any person or entity from seeking private or individual relief for separate and distinct injuries

39. —Whether the proposed settlement will illegally preclude any person or entity from seeking recovery of health-care expenses (other than premium or capitation payments for the benefit of present or retired state employees) paid or reimbursed, directly or indirectly, by the Commonwealth of Pennsylvania.

40. The existence of the foregoing factual issues demonstrates the AG’s proposed settlement would affect the fundamental activities of multiple state-level regulatory departments (e.g., Health), constituting a de facto settlement of claims that have not been assessed through customary channels.

41. The Attorney General is thereby responsible for holding a full hearing at which Intervenors and other members of the public (individuals and organizations)   must be afforded full due process rights to challenge implementation thereof—invoking points inclusive but not limited to pleadings in this Complaint— pursuant to the Administrative Agency Law, 2 Pa. C.S.  504.
 

Relief Sought by Intervenors

42. The Intervenors seek to participate in a hearing regarding the proposed settlement, in which they participate with full rights of parties to the proceeding:

43. The Intervenors seek to encourage the Attorney General to disapprove the proposed settlement.

WHEREFORE, The Intervenors respectfully request an Order be issued granting them leave to intervene in these proceedings and authorizing them to participate fully in all hearings regarding this matter; and

WHEREFORE, The Intervenors respectfully request an Order be issued granting them the opportunity to air these concerns [among others] at a Hearing to be held on November 25, 1998, at which time William Adams, Esquire (PA Bar # 3131) [who will enter an appearance] and Ed Sweda, Esquire (Massachusetts Bar # 489820; admitted to Federal & Supreme Court Bars as well) [tentatively, with the Court’s permission] will be able to argue the legal matters contained herein.

Respectfully submitted,

___________________
Robert B. Sklaroff, MD
Pro se [tentatively]
For Intervenors

Dated:   November 18, 1998
CERTIFICATE OF SERVICE

 I, Robert B. Sklaroff, MD, hereby certify that I am this day serving a copy of the foregoing document upon the persons in a fashion that satisfies the requirements of the Pennsylvania Rules of Civil Procedure; a copy of the same will be deposited in the United States Mail, Philadelphia, Pennsylvania (with first-class postage prepaid) and will be FAX’ed to each attorney’s office.

JOEL M. RESSLER
Senior Deputy Attorney General
I.D. No. 28625

DANIEL J. DOYLE
Senior Deputy Attorney General
I.D. No. 54855

JOHN G. KNORR, III
Chief Deputy Attorney General
Chief, Litigation Section
I.D. No. 21583

LOUIS J. ROVELLI
Executive Deputy Attorney General
Director, Civil Law Division
I.D. No. 19568

Office of Attorney General
15th Floor, Strawberry Square
Litigation Section
Harrisburg, PA 17120
(717) 783-1471
 
 
 
 
 
 
 
 

BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION

THOMAS L. VANKIRK (I.D. No. 01583)
STANLEY YORSZ (I.D. No. 28979)
JACK M. STOVER (I.D. No. 18051)
JOHN R. LEATHERS
JEFFREY J. BRESCH (I.D. No. 66777)

One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
(412) 562-8800

DUANE, MORRIS & HECKSCHER

REEDER R. FOX (I.D. No. 04701)
MICHAEL M. BAYLSON (I.D. No. 04643)
J. SCOTT KRAMER (I.D. No. 32389)
MARK LIPOWICZ (I.D. No. 20716)
FRANK E. NOYES (I.D. No 48366)

4200 One Liberty Place
Philadelphia, PA 19103-7396
(215) 979-1000

Attorneys for Plaintiff,

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PHILIP MORRIS INCORPORATED
 Martin J. Barrington
 General Counsel

 Meyer G. Koplow
 Counsel

120 Park Avenue
 New York, New York 10017
 
 
 
 
 
 

R.J. REYNOLDS TOBACCO COMPANY

 Charles A. Blixt
 Executive Vice President and
 General Counsel

 Arthur F. Golden
 Counsel

 Fourth and Main Streets
 Winston-Salem, North Carolina 27102
 

BROWN & WILLIAMSON TOBACCO CORPORATION

 F. Anthony Burke
 Vice President and General Counsel

 Stephen R. Patton
 Counsel

 1500 Brown and Williamson Tower
 Louisville, Kentucky 40202.

 [Because Defendant B.A.T. Industries, P.L.C. is the sole shareholder of the Brown & Williamson Tobacco Corporation, it received notice only by mail, to its principal office at Windsor House, 50 Victoria Street, London, England SW1H 0NL.]

 [Because Defendant American Tobacco Company, Inc. was purchased by B.A.T. Industries, P.L.C. in December 1994, it received notice only by mail, to its principal Office at 281 Tresser Boulevard, Forum,  Stamford, Connecticut 06904.]
 

 LORILLARD TOBACCO COMPANY

 Ronald S. Milstein
 General Counsel

 Herbert M. Wachtel
 Counsel

 1 Park Avenue
 New York, New York  10016.
 

[Because the names of attorneys are not specifically listed in either the Complaint or the Proposed Master Settlement Agreement for the remaining companies, they have received notice only by mail, with the communication directed to the General Counsel of each entity.]

LIGGETT GROUP
 700 W. Main Street
 Durham, North Carolina 27702
 

UNITED STATES TOBACCO COMPANY
 100 West Putnam Avenue
 Greenwich, Connecticut 06830.

THE TOBACCO INSTITUTE, INC.
 1875 Eye Street, N.W., Suite 800
 Washington, D.C. 20006.

THE COUNCIL FOR TOBACCO RESEARCH, U.S.A., INC.
 [successor in interest to the Tobacco Industry Research Committee]
 900 Third Avenue
 New York, New York  10022

THE SMOKELESS TOBACCO COUNCIL
 1627 K. Street, N.W.
 Washington, D.C. 20006.

HILL AND KNOWLTON, INC.
 466 Lexington Avenue
 New York, New York  10070
 
 

___________________
Robert B. Sklaroff, MD
Pro se
For Intervenors

Dated:   November 18, 1998

In re:

COMMONWEALTH OF PENNSYLVANIA BY D. MICHAEL FISHER,
IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF                         PENNSYLVANIA,
PLAINTIFF,

                                     V.

PHILIP MORRIS, INC.; R. J. REYNOLDS TOBACCO COMPANY; BROWN &
WILLIAMSON TOBACCO CORPORATION; B.A.T. INDUSTRIES, P.L.C.; THE  AMERICAN TOBACCO COMPANY, INC. c/o BROWN & WILLIAMSON TOBACCO  CORPORATION; LORILLARD TOBACCO COMPANY; LIGGETT GROUP, INC.;
UNITED STATES TOBACCO COMPANY; THE TOBACCO INSTITUTE, INC.; THE
COUNCIL FOR TOBACCO RESEARCH-U.S.A., INC.; SMOKELESS TOBACCO
COUNCIL, INC.; and HILL AND
KNOWLTON, INC.,
 DEFENDANTS  :
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: COURT OF COMMON PLEAS
PHILADELPHIA COUNTY,
PENNSYLVANIA
 
 
 
 
 

Case No.: No. 97-2443

April Term, 1997
 

PETITION FOR PRELIMINARY OR SPECIAL INJUNCTION

 Robert B. Sklaroff, MD, William T. Godshall and Jeffrey Barg [hereinafter “Intervenors”] file this Petition for Preliminary or Special Injunction in the above captioned matter pursuant to Rule 1531 of the Pennsylvania Rules of Civil Procedure and, in support thereof, aver as follows: