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Memo:  Robert B. Sklaroff, M.D., is a Montgomery County medical oncologist and hematologist. His website is http://members.home.net/rsklaroff/homepage.html

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BIG TOBACCO USING SETTLEMENT TO TWIST GOVERNMENT TO ITS PURPOSE
by ROBERT B. SKLAROFF, MD

Big tobacco is expanding its grip on Big Government, both at the state level and nationally. It is using its 1998 resolution of state lawsuits to leverage politicians to do its bidding; the implications are frightening.

That's why I sued to break up this deal, the largest private settlement of civil litigation in world history.

Consider the implications of two recent events, one in Tallahassee, Fla., and one in Washington, D.C.

Florida Gov. Jeb Bush signed a hastily passed bill that is intended to cap the bond that Big Tobacco will have to post when it appeals one case that is now entering its class-action penalty phase. Big Tobacco has been found guilty of premeditated murder, and it must now pay a half-million of its victims.

The predictable and false argument that prevailed was that a multi-billion dollar punitive damages award could prevent it from covering the allocated payments promised under the Master Settlement Agreement with the states. Existing law would already limit this bond to preclude bankruptcy, but Florida and the home states of tobacco corporations passed protectionist legislation to change the rules of the game prior to the verdict.

The goal is to allow Big Tobacco to continue to serve as a cash cow for myriad pet projects unrelated to health care, ranging from constructing Virginia highways, to balancing West Virginia's budget, to underwriting lawsuits filed against the Los Angeles Police Department.

This was all made possible by the Master Settlement Agreement signed in November 1998. Although this pact was portrayed as a bold effort to rid the courts of burdensome lawsuits, it served to wed the interests of state government and this killer industry.

Politicians entrusted with the public's well-being predictably became mesmerized by the prospect of spending millions of non-tax dollars. Thus was America quietly duped into swallowing the MSA. So Big Tobacco laid the foundation to undermine public interest litigation.

Big Tobacco, the Teflon-coated cabal of drug pushers, remains a wolf in sheep's clothing. Publicly, it finally admits smoking causes disease, disability and death. Legally, however, it resolutely denies a definitive connection. And politically, it tenaciously seeks advantages afforded to no other American industry.

Big Tobacco also has become the poster child for tort reform, with its adherents claiming that personal responsibility is overlooked when corporations are blamed for societal ills. All the while, Big Tobacco conducts business as usual.

It should come as no surprise that the U.S. Senate Agriculture and Appropriations Committees refused to fund the Justice Department lawsuit against Big Tobacco. This is intended to recover Medicare funds, just as did the states' successful Medicaid suits that led to the MSA. Big Tobacco's Republican allies including, surprisingly, Pennsylvania's Arlen Specter, voted to cripple this justified and validated effort.

Politics threatens again to trump the law. Through the MSA, Big Tobacco bought immunity from future misconduct, as long as it can be related to business pursuits. This threatens to suck the legal life from public-health litigation forever, as the unstated priority gravitates toward maintaining corporate profits.

That's why I sued to clarify the MSA. When Philip Morris violated the MSA by funding Wawa's billboard advertising, I sued it too. When Attorney General Mike Fisher refused to enforce the MSA, I sued him as well. Instead of forcing Wawa to stop promoting low-cost cigarettes last April and December, the state attorney general disingenuously claimed the issue became moot when the campaigns ended, forgetting they could be restarted at any time. Thus was established the national precedent: Law enforcers will blink if billboards are financed by Big Tobacco, but placed by `third-party` retailers or distributors.

My case against Philip Morris is before the state Superior Court, and my case against the attorney general is before the Commonwealth Court.

One mustn't capitulate whenever the Big Tobacco Tar Baby whines. Rather, adults must try to relate on the level of a recalcitrant delinquent, for the only language Big Tobacco understands is the threat of litigation. Anger must be transformed into constructive action against the culprit and those who would serve as its apologists. Youth must learn that protecting the public health is both a medical-scientific and a politico-legal process.