Subject:     "Master Settlement Agreement" with Big Tobacco - Update in PA
Date:         Sat, 30 Oct 1999 08:57:45 -0400
 

http://www.phillynews.com/inquirer/99/Oct/30/city/PBRIEF30.htm

Glen Justice (the author of this "Metropolitan Area News in Brief" reprinted below) says he views this as a "place-holder."  In my view, the impending election has focused media attention elsewhere; as of Wednesday, the "2000 Race for AG" officially starts and one may anticipate more attention will be paid to my litigation.

PA LITIGATION STATUS

My filings were officially received (in Commonwealth Court and in the Supreme Court) on Monday (although the latter was re-routed to Pittsburgh for docketing because my challenge cites the fact that Allegheny County had been inappropriately dropped).  On Tuesday, I e-mailed a copy to a friend (per his request), who also happens to be an attorney for one of the tobacco companies.  By my calculations, the reply brief from the AG and/or Big Tobacco (presumably, in opposition) is due on the 8th.

Meanwhile, I called the chambers of Judge Herron regarding the status of my Wawa Case filing; he officially received the case (according to the civil administration docketing office) only a month ago.  This is curious because this occurred WEEKS after the final submissions, despite the fact that Judge Herron (according to what he said in January during our Hearings) runs this department and despite the fact that Philip Morris had filed a motion (that I hadn't opposed) requesting he receive the case (quite apt, noting his familiarity with the MSA).  The PA Rules of Civil Procedure call for him to rule "promptly" regarding Philip Morris' "Preliminary Objections" filing.

NATIONAL MSA STATUS

I believe state-specific finality has not yet been attained.  I have not "made telephone rounds" regarding the status of approvals elsewhere in the nation for months, so the situation appears unchanged; 79.9% of the Medicaid Population has been encompassed by settling-states, just shy of the 80% threshold.

Judging from what I've been reading on the Internet, the states are proceeding to determine how they will spend the tobacco-$$$, but only a half-dozen are complying with CDC guidelines.  One way to fix this problem (in PA, anyway) is to file as an "interpleader"; this would insert the Court into the process of determining the proper use of the monies.

PA MSA EXPENDITURE STATUS

In PA, it seems the Ridge Administration is attempting to expand the scope of "stake-holders" to involve as many people as possible in the process of "rooting for" acquisition of the MSA-$$$ ASAP.  Although the Administration officially established three groups (Tobacco Control, Medical Research Centers and Hospitals) as recipients, the Health Department held a session yesterday with, among others, the PA Clean Air Council.

In his invitation letter to that meeting, Health Secretary Robert Zimmerman viewed "recreation" as a suitable category of recipients (under youth health, presumably); this is QUITE A STRETCH and illustrates how, even in PA, politicians are (purposefully) abandoning the focus of the original litigation.  (Other states are proposing these monies be provided to such programs as roads, school construction, scholarships, farmers and tax-cuts.)  The flip-side of these ideas is, of course, that any diminution of MSA-$$$ would lead directly to decreased funding of all these wonderful plums.

STATUS OF "NON-PARTICIPATING MANUFACTURERS" LEGISLATION

It may be recalled that a hearing was held in Hershey on HB-445, conducted by the Courts Subcommittee of the House Judiciary Committee.  I am told that the decision has been made to delay consideration of HB-445 (despite the AG's desires) until my Supreme Court appeal has been adjudicated.

Further, I am told that my testimony was well-received and that I didn't appear "fringe."  Additionally, I am told that others privately couldn't reassure questioning legislators that the immunity language in the bill couldn't be modified.  Clearly, the Commonwealth loses nothing by adopting a watchful posture regarding the involvement of NPMs until the legal status of the Participating Manufacturers (and the federal antitrust litigation filed by the NPMs) has been clarified.

To my knowledge, no comparable bill has been filed in the Senate.  It would appear that activists in other states could research the status of how "Exhibit T" is being addressed and, perhaps, to testify in a comparable manner.  If nothing else, this would force regulators to create a record regarding their understanding of the powers of the AG to immunize Big Tobacco.

MY "SETTLEMENT" POSTURE

I spoke on Monday with Frank Leone, MD, who had authored the letter-to-the-editor that I'd distributed last week.  He was a participant in one of the Administration's conferences regarding how to spend the MSA-$$$ (at which he suggested a top-down control mechanism be established, eschewing the grass-roots approach traditionally pursued by local coalitions).  He repeatedly asked me to agree, ultimately, not to threaten receipt of the MSA-$$$.  [I refused, and sent him some
reading-matter to explain why.]

He agreed to contact the AG in order (potentially) to preside over a "settlement conference" setting; I told him that others (including myself, via direct conversation with Secretary of Administration Tom Paese which was videotaped during the HB-445 Hearing) had failed.  I've heard nothing back from him, although I anticipate his receipt of this memo may prompt him to provide feed-back.

MY STATUS

MY PLAN is to hope the Supreme Court (with or without the help of the Court of Common Pleas) provides me "standing" and, thereafter, to open-up the ENTIRE MSA for scrutiny, focusing on the "immunity" and "offset" sections.  This process would provide others the opportunity, also, to file as "interpleaders" on behalf of the proper recipients of these monies; this will be desirable if the Ridge Administration hasn't, by then, committed to establishing a budget that is consistent with the original filing:  a class action, filed on behalf of youth, to recover Medicaid expenditures.

Some people are trying to cajole me into dropping this effort because, they argue, I've "won attention" to my concern(s).  Yet, the Governor hasn't committed to the CDC "Best Practices" Guidelines.  And the AG hadn't publicly reversed any condemnation of my appeal, nor has he legally stipulated all the reassurances he's issued publicly (forcing Big Tobacco to concur prospectively).  Indeed, he told Steve Feldman of the "Jewish Exponent" that there is "no" immunity, clearly a  mendacious statement regardless of how one reads the MSA.

If anyone can supply a GOOD reason to desist, I'm always available for discussion purposes.  [By the way, a dozen members of the PA Health Department and a few legislators have been receiving these e-mails; I believe in providing "informed consent."]  Thus, I will continue this effort, and support is invited.

*

Area cancer specialist appeals tobacco ruling

A doctor challenging Pennsylvania's involvement in the nationwide $206 billion tobacco settlement appealed to the state Supreme Court this week.

Montgomery County cancer specialist Robert Sklaroff filed a pair of appeals, each with a different argument for why the high court should hear his case. The appeals came despite recent pleas from state officials asking Sklaroff not to intervene. Attorney General Mike Fisher and Ridge administration officials fear Pennsylvania's $11.3 billion share will be delayed by the filing. Sklaroff, whose efforts have been thwarted in two different courts, fears the settlement will inoculate the tobacco industry against further lawsuits.