A suggested op-ed piece has been generated; it could be updated if any editor were to request same. Another has been published in the Allentown Morning Call and a third is in-press in the Philadelphia Inquirer.
 

People who haven't "lived" this experience require a "roadmap" to follow the threads of this litigation through the courts.
Thus, a brief history of what has transpired during the past year will be provided, emphasizing the existence of one key
document submitted to Commonwealth Court that succinctly summarizes all key legal arguments that have been averred.
In many respects, I never anticipated this litigation to have "lasted" so long and this is why I delayed uploading the briefs
(depending upon the work of GlobaLink in Geneva, Switzerland, to convert everything vital into "html" and to upload it).
Now, however, with the prospect that the case will live-on in PA and may serve to help others conjure methods to fight
Big Tobacco elsewhere (in America and in other countries that may be confronted with a document similar to the MSA),
these data may be viewed as resource material.  For example, I'm told concepts upon which state laws are predicated
vary little from one state to another; I suspect that also may be true when international law (and laws in specific countries)
is studied to discern corporate liability.  In any case, this disclaimer is intended to motivate and invite multi-level critique.
The "neatness" of this presentation belies the fact that it cannot presume to be comprehensive, for I'm not an attorney.

*

The story began, for me, during my Medical Oncology Fellowship at the Memorial Sloan-Kettering Cancer Center.
During the subsequent two decades, friends/family have been afflicted (as well as patients) with tobacco-related disease;
my experience is not dissimilar to that of others, except that I've saved documentation of how those with vested interests
have dissembled when confronted with obvious realities.  A decade ago, I responded to an article in the first issue of a
refurbished Journal of the National Cancer Institute by noting the potential public health benefits that litigation could yield.

Since that time, I felt emboldened to use "tobacco politics" to evaluate how money and power shaped public behavior;
it was difficult to see many shades of gray between the black and white "hats" that were strewn about, regardless of the
issue currently being discussed (nicotine's addictiveness, youth access, taxation, indemnification, health consequences).
Having "debated" spokespeople from the Tobacco Institute, I had evolved from "having a good time" beating-up on them
(which elated those who already knew the dangers of tobacco) to "focusing my intervention" in a more low-key fashion
(which was more apt to educate the greater number of listeners who were not so knowledgeable regarding these issues).

Although I'd started testifying for tobacco-related interventions while living in Manhattan and did so during the 1980s,
the greater effort has occurred during the past decade.  I learned a lot from three Pennsylvania colleagues, members of
that unpaid army of anti-tobacco activists that has moved a "mountain" of Big Tobacco's dirty laundry into the public eye.
No one who "twitches" when any tobacco-related issue arises--anywhere in America--can survive without having been
contacted by William T. Godshall, MPH, who "does tobacco, all day, every day" through his group (Smoke-Free PA)
and, now, through the statewide group (The Coalition for a Tobacco-Free PA).  No journalist expressing a modicum of
interest in tobacco--anywhere in America--can survive without having been contacted by Jeffrey Barg, MA, who keeps
professing a desire to "get out of tobacco" much as the Godfather lamented constantly "being sucked back" into crime.
No list of independent, academics would be complete without citing Stephen Gambescia, Ph.D., who wrote a dissertation on the history of the tobacco control movement during the past three decades and who conveyed early leadership ideas.

The latter two individuals are past-chairs of the Coalition, and the four of us have only occasionally disagreed publicly.
Yet, we each have our slants.  Stephen defined three decade-long phases of activism (using a socialization model),
predictably yielding the emergence of a fourth (negotiation) phase that has grown and matured during the 1990s.
Jeffrey diagnosed and pithily articulated each development in this process; for example, his immediate response to reading
the MSA a year ago became widely-quoted ("The deal would leave the Marlboro Man in the saddle and the tobacco
companies in the driver's seat.") and he has maintained the capacity to relate concisely with all the disputing "players."
Bill can pull-together a database immediately upon request, as he did when collating tobacco billboard ads nationwide.

This is why Pennsylvania has provided the resources to fuel the more effective types of anti-tobacco activism.  Indeed,
the "kudos" that were directed towards the City of Brotherly Love when we got "Uptown Out o' Town" (the ill-fated
marketing program targeting minorities) pale in comparison with what has been accomplished since that time.  (I had felt
we lucked-out when Dr. Louis Sullivan came to Philly to visit Penn for, as the Uptown Coalition's "legal committee" chair,
I was prepping for a more protracted conflict.)  Although I served as a consultant for the (now dead) Menthol Litigation,
I have not been deeply involved in promoting the approach adopted by those pushing the concerns of "people of color."
(I have found this approach to require excessive amounts of accommodation to the behavior of the state government.)
Meanwhile, I ensured the tobacco-related policies of organized medicine were up-to-date (both in PA and nationally); since that time, I have expanded that effort to such organizations as the National Association of Hospital and Healthcare Employees (NUHHCE) which, on 10/20/99, adopted a cogent and realistic policy regarding how the MSA-$$$ should be allocated.

*

Three years ago, as President of the PA Society of Internal Medicine, I attempted to effect a compromise with regard to
pending state-level legislation.  Ultimately, this required me to go head-to-head (or, rather, FAX-to-FAX) with Bill, but
the potential to create a rudimentary state-wide system was worth establishing "limited local pre-emption" of these laws.
Ultimately, I felt that granting retailers self-service displays within the clerk's eyesight was a small price to pay, here;
nevertheless, the desired amendment failed to emerge on the Senate floor...and PA continued to have a terrible problem.

It must be noted that I also failed to gain support from the AMA in this effort, for I felt there was a certain misplaced
religiosity surrounding the driving need to maintain absolute local control over every facet of tobacco commerce.
Persistence led to my holding a teleconference with Dr. Smoak with regard to this issue; reason was supplanted by dicta.
Thus, I found myself alienated from the mainstream tobacco control movement because I'd tried to effect concurrence.

Two years ago, as a close friend of a Congressman, I prepared testimony to the House Commerce Committee that could
have led to national legislation. . .if anyone had wanted to listen.  In my view, a voluntary national moratorium for a year
from filing anti-tobacco litigation would have been a small price to pay to gain the unambiguous benefits of the tobacco
litigation currently under consideration.  As a result, I found myself alienated from the national tobacco control movement.
Thus, it wasn't surprising that I was denied access both to SCARCNET and to "Settlement Talk," but I still have enough
sources of information to permit me to track subsequent developments.  Most everyone feared the independent thinker.

*

One year ago, the MSA was released.  The PA Attorney General has posted extensive data regarding this entire issue on his Web-Site, including the initial PA filing which has become the focus of subsequent litigation.

I'm told Big Tobacco didn't want to announce it on (Friday) November 13th (bad luck), so it was released on the 16th.
The next day, at 1 PM, a teleconference was held of the Save Lives Not Tobacco (A Coalition for Accountability).
Nationally, two dozen people ranted/raved for a half-hour until I interrupted to ask, simply, what was to be done.
Thereafter, a few lawyers grudgingly agreed to upload model litigation (seeking an injunction to gain standing) that PM.
Thus, I slept from 9 PM to midnight (two REM cycles), arose to find nothing on the Internet (as I'd anticipated), and then
proceeded to type-out what was to become our first filing.  Over the strenuous objections of Big Tobacco's lawyers,
this yielded both a Rule (to have a hearing the following Wednesday, prior to Thanksgiving) and an Order (to transfer
responsibility from Judge Colins - the Motions Judge - to Judge Herron - before whom the original case had been filed).

Jeff, Bill and I were in-business, and we subsequently recruited 13 organizations to endorse this effort.  We also refiled the
complaint due to the recognized need to refine the legal issues involved.  Prior to oral argument (on January 8th & 12th),
Ms. Alice Ballard filed a focused brief, emphasizing the "class action" component that was fundamental to this entire effort.

*

Illustrative of the behavior encountered at all three levels of the AMA Federation with regard to tobacco were these
tragi-comic events.  The AMA House of Delegates was meeting in December, 1998 in Hawaii, and I had a friend who
was attending the meeting of the Organized Medical Staff Section (John Cohn, MD, a Jefferson Pulmonologist).  Thus,
AMA-staff (who knew of my prior resolutions) kindly received a 100-page FAX that was submitted emergently to the
OMSS Assembly and sent immediately to the HoD. . .where my resolution (calling for the AMA to study the effect of its
endorsement of the MSA upon its previously-established policy against providing Big Tobacco any special legal rights)
was diluted-out into a generic "let's continue to monitor the situation" non-proactive posture (predictably, unfortunately).

The PMS lended this work no support; indeed, when the Coalition applied for a $50,000 Robert Wood Johnson Grant
(which was to be administered through Tom Houston, MD at the AMA), the PMS refused to work with us by serving as
a fiscal intermediary with regard to anti-tobacco education/lobbying efforts and we were told this decision was made
because Coalition leaders had filed this litigation (despite the fact that Bill and Jeff had since withdrawn from this effort).
Ultimately, I believe it was reluctant to implement its comparable anti-immunity policy (that I'd composed) against the AG.

If the PA Medical Society was reticent, the Philadelphia County Medical Society went so far as to violate its bylaws to
eschew involvement in our litigation.  The Chair (Robert Reinecke, MD) relinquished this position to argue against me
during the December Board of Directors meeting, only to lose 8-7.  His response was to issue a subsequent FAX'ed
survey (which I lost), an action that specifically was not authorized neither during the Board meeting nor in the bylaws.
Fear of involvement was controlling, as illustrated by the absence of any support from any level of organized medicine.

*

Perhaps my greatest disappointment with the three "voluntaries" (American Cancer Society, American Heart Association, American Lung Association) is that they became as mute as did orgnized medicine.  That the ACS could issue a gross  rationalization to justify reneging on basic constitutional issues with regard to the proposed Federal Settlement [that led to Senate debate on the McCain Bill during May, 1997] had been appalling; no subsequent effort was made to apply these proposed remedies to constitutional concerns through addressing the "releasing parties" and "offset" clauses that truly control behavior .  Contrast this stance with its prior "purist" approach opposing my 1996 attempt to effect a compromise (corroborated, again, both state-wide and nationally) and one again is left wondering why its subsequent behavior has been comparable to that of less "aware" people and politicians, focused solely on how the MSA-$$$ is to be distributed.  Thus, if various "remedies" proposed a year ago by the ACS to "cure" problematic clauses in the MSA have not yet been achieved, reconsideration of its failure to oppose this document must now be considered.  Again, I would expect a torrent of such support (from the ACS and/or from others) only after the MSA has been remanded for proper legal analysis/scrutiny.

*

The history of my litigation has three threads:  the Master Settlement Agreement, the Wawa Billboard Advertisements, and the lack of enforcement by the Attorney General:. the MSA Complaint was filed on Wednesday 11/18/98 against the settling parties (Attorney General and Big Tobacco);  the WBA Complaint was filed on Monday 5/17/99 (against Philip Morris--the leader of Big Tobacco--but not Wawa); and the  AG Complaint was filed on Monday 12/20/99.   The first moved from the Philadelphia Court of Common Pleas (First District), through the PA Commonwealth Court (because it involves a contract with state government, it didn't travel through Superior Court), to the PA Supreme Court and will now be appealed to the US Supreme Court.  The second moved from Common Pleas to Suprerior Court, and the third was filed in Commonwealth Court due to its "primary jurisdiction" role when a public official is alleged not to be performing adequately.

I had a "deal" with a friend (who also is one of the attorneys representing one of the tobacco companies) that we would exchange information via e-mail.  I have done this, but he hasn't (perhaps because he is not representing Philip Morris).   In any case, I cannot easily provide copies of the briefs filed against my position, but I will do so if/when I get the e-mail.  Thus, I will provide, seriatim, the evolutionary filings made in both cases, although the one document that would be most appropriate for review (if only one could be chosen) is the Final submission in April, 1999 to the Commonwealth Court.

That the "threads" of these two suits are "knotted" is obvious, for the latter has served as incontrovertible evidence that there is a "legally enforceable interest" representing "a case or controversy that is ripe for adjudication at this time."  Thus, efforts to claim "mootness" (proffered by both the AG and PM. . .great minds think alike!) are impossible to honor, now, particularly in light of the continued billboard advertising both in PA (by Sheetz) and around the county (in four states).  The key judicial issue that the courts haven't addressed is the fact that I have cited an out-of-state precedent that is on-point in PA.  Specifically, the Rhode Island AG enforced the MSA and exacted a stipulated settlement and a fine for its violation.

Indeed, the "public interest" is obviously affected in a direct/substantial/immediate fashion, as evidenced (if nothing else)  by the daily media attention this behavior has received during the past fortnight.  That the conduct of PM is problematic on additional levels (as reflected in my letter to the AG on 12/3/99) compounds the problem, for the AG has yet to state whether he will investigate multiple allegations of MSA violations that go to the very heart of the motives of the parties.

*

The revised Complaint encompassed Messrs. Godshall/Barg and myself, plus 13 organizations, six of which remained through the initial appeal to Commonwealth Court and four of which have sent endorsement letters for my current work (having dropped-out in the interim, following receipt of the AG's 3/1/99 "target letter" in which he threatened bankruptcy to those people and organizations who would dare to defy him).  This was accompanied by ASH's Amicus Brief.

Nevertheless, the 1/13/99 approval of the MSA yielded an Appeal to Commonwealth Court.  Various other motions also were filed (to supplement the record and for oral argument)--which were denied--but the essential desire was to codify all key legal arguments in one document (which was disseminated as widely as possible thereafter).  It certainly could have been more comprehensive from the "constitutional analysis" perspective, but the goal was to touch those "bases" while focusing on the specific problems of "releasing parties" and "offset" that would work behind-the-scenes to give immunity.  Unfortunately, the standing issues wasn't even addressed throughout the judiciary, even when this deficiency was highlighted in the  Reargument/Reconsideration Motion filed in Commonwealth Court (recapitulating what had previously been emphasized).

*

In Pennsylvania, as in each state in the Union, there has been intense debate as to how MSA-$$$ should be expended.  Inasmuch as I have potential interest in reviewing this issue at the Trial Court level, in conjunction with the overall MSA,    I became immersed in the topic (belatedly) and generated testimony to the House, Senate and Administration.  Curiously, the issue of fiscal liability has, until now, been viewed as secondary to the advocacy issues; nevertheless, the ability to quantitate potential losses in remuneration by putative class members (e.g., youth) can be generated (the Engle Case may establish a fiscal liability standard) as we learn that only 3% of MSA-$$$ is anticipated to be spent on tobacco cessation/prevention (nationally).  Thus, ensuring these monies are directed at the problems that provoked the original litigation is mandatory.  The Coalition has recommended ~25% be spent on tobacco control (consistent with CDC recommendations) and I have argued that the rest should be directed at recompense for Medicaid costs (and not for other pet projects).  I have difficulty with the proposal issued last week by PA Senate Democrats that a 10% tithe be conserved for potential future use (to ensure even cash-flow) because it is a widely-held misconception that payment of these monies is to terminate in a quarter-century, but I cannot accept the view that unrestricted monies be appropriated either to Medical Research Centers or to Hospitals to pursue worthwhile pusuits that may have absolutely nothing to do with tobacco/smoking or with Medicaid patients.

*

One fly in the ointment has been the behavior of Allegheny County.  It initially participated in the oral arguments held in the Philadelphia Court of Common Pleas and it initially appealed to the Commonwealth Court, under a separate Docket Number from that which related to the appeal of the Anti-Tobacco Activists with which I was involved.  [This became a crucial legal point subsequently.]  When this appeal was witndrawn (in April, 1999) after the filing of briefs, I was dismayed and its existence periodically modivated me to attempt to prod the City of Philadelphia to shake itself from its inactivity.  Indeed, memos to various people in city government (his Chief of Staff's office plus his Solicitor) led to conversations with Mayor Ed Rendell (direct and indirect) which were only verbally supportive.  Thus, I was unable to get Philadelphia into the fray, not withstanding the fact that its one filing (a year ago) had argued that the AG "should" file a document with the Court that would cede to it control over disbursement of monies.  That no such document was ever filed, to me, mooted its argument that Philadelphia should not pursue standing; my presumption is that a private arrangement was effectuated between the ex-mayor and the current-governor, a bipartisanship that would yield specific recommended disbursement to Philly's allegedly-ailing hospitals.

Back to Pittsburgh:  The witndrawal of the appeal was accepted, then rescinded for unclear (adminstrative) reasons.  The opinion written by Judge Kelley (available via hyperlinking on my Home-Page to the five major documents stored on Globalink) clearly elucidated the legal-error that was committed, but all my subsequent appeals were ineffective in pushing the appropriate level of review necessary to "fix" this glitch.  Again, the juggernaut to gain approval of the MSA was not to be derailed (mixing metaphors), allegedly because I was not a party to that particular Docket Number.  [Here, the present of Philadelphia would have been crucial.]  In any case, I was ultimately unsuccessful in leveraging review based upon this effort.

I had felt, politically, that the quotation from the Pittsburgh attorney handling the appeal [in his op-ed piece composed in August and published in the Tribune Review] would have resonated more with the media.  Having admitted that the withdrawal of the appeal had been provoked by the Governor's threat to undermine funding for Pittsburgh's airport was, undoubtedly, reflecting the intent of the PRAP rationale for having to APPLY to withdraw and to state WHY.  This is a focus of my subsequent documents, but it didn't gain me standing, nor did it provoke any other politicians (R or D) to critique what had transpired (probably, again, due to the bipartisan overwhelming-desire for the money).

Such is life. . . .

*

. . . .And such was the course my overall litigation was to take.  As it expanded to three case, so did it receive short shrift legally as it wended its way through the courts.  Actually, now that the MSA-generated monies have been received, it may be apt for those who have heaved-a-sigh-of-relief to take another look at both the motivations for my suits and their merits.  Currently, the MSA appeal will be appealed to the US Supreme Court (I didn't bother filing a reconsideration motion in the PA courts because there had been no opinion AND because nothing had transpired legally in the interim); the WBA suit resides before Superior Court (it was transferred from Commonwealth Court); and the AG suit resides before Commonwealth Court (which just received preliminary objections from Joel Ressler, representing the AG).