Subject:
             Re: "Subrogation and Chocoholics"
        Date:
             Sat, 04 Dec 1999 05:23:36 -0800
       From:
             "Robert B. Sklaroff, MD" <rsklaroff@home.com>
 Organization:
             @Home Network
         To:
             George Fisher <gfisher@pol.net>
  References:
             1
 
 
 

I agree with some of these sentiments but, certainly, not with the
application of these themes to tobacco.  The FDA's governing statutes
don't mandate that the purveyor be professing any "health benefit" to
the product; rather, the product putatively to be regulated must affect
bodily structure/function.  Tobacco does, particularly knowing how the
tobacco industry has manipulated nicotine levels therein.  The other
metaphors [e.g., sugar] wilt-on-the-vine following comparison, for there
is no "safe" dosage of cigarette-delivered tar/carbon-monoxide.

In a daily "blast" e-mail distributed by the Advocacy Institute, I read
the following:  "Glenn Schneider, community organizer for Smoke Free
Maryland, was in the courtroom [during FDA argument] and offered this
assessment:

'The main arguments from the justices' point of view were:

1) Whether the company showed intent to sell tobacco as a drug (the
company said it never publicly claimed that in its advertising);

2) Would the FDA be required to ban tobacco if it did have authority
since cigarettes cannot be declared "safe and effective";

3) What changed in 1994? Why did previous FDA commissioners say they did
not have the authority to regulate tobacco? and

4) Did Congress intend that tobacco be covered under the Food Drug and
Cosmetics Act?' "

Working "upwards," I would state that the above-quoted scope of the FDA
encompasses this "nicotine delivery system," particularly because of the
toxicity of everything ELSE it delivers; that what occurred in 1994 was
recognition that nicotine's addictiveness was scientificaly established
(even if it took Big Tobacco another half-decade to admit that fact on
its WWW-sites); that no reasonable person wants the FDA to "ban" tobacco
(noting the history of lesser-measures based on weighing
safety-effectiveness); and that Big Tobacco has hawked the psychic
[relaxing, etc.] effects of its product ["after one puff [of
Salem]...it's SPRINGTIME"] during most of this century.

The Wall Street Journal has a philosophy that is being applied here,
although truths have occasionally been so obvious (such as when it
defended Wigand against Brown & Williamson, the article about which I
still have in one of my boxes) that it has been forced to retreat.  If
the ultimate action of the Supreme Court is to be telegraphed by its
Chief Justice (Rehnquist), then where is our "rule of law" if the
controlling defense against deceit is that "no one believed them
anyway"?

It cannot reasonably be argued that the "success" in Florida is solely
due to any laws unique to that state, inasmuch as the first four
settling states included Mississippi, Texas and Minnesota.  You may
recall that I had a letter published in the Journal of the National
Cancer Institute a decade ago that argued in favor of using litigation
as a cancer-control strategy; you may lose a few, but you must keep
trying to hold an industry accountable for the tears it has purposefully
caused to be shed.

IF the WSJ is so focused upon ID'ing underlying onerous concepts that
could become dangerous precedents, then let's discuss the ability of
government to indemnify ANY industry for future behavior, merely if it
fits into the black-hole of conduct that is occurring "within the normal
course of business."  What this may have to do with perceiving people as
sheep is, frankly, beyond me.  What I see is a blatant effort to deny
EVERYONE (citizens, organizations, government) the ability to seek
redress against activities that are not yet even imaginable.  Exercizing
"Due Process" rights is fundamental to jurisprudence.

I've always used tobacco politics as a method by which I can gauge the
veracity of the speaker.  Although the particular issues raised in the
process are no less "real," the forces driving them often denude
demagoguery.  That's why I merely do what's obviously do-able, and then
reformulate after analyzing the results.  I believe you lauded that
philosophy during my decade-long "career" of generating resolutions in
the AMA Federation (that ended after the firing of JAMA's George
Lundberg, MD).

I have written that we must "detoxify" citizens and "detaxify"
government, but I don't know how that 85 cent-per-pack figure (of
government cost-savings from tobacco) was calculated.  Certainly, it
fails to take into account pain & suffering, and it certainly ignores
interim health-costs associated with the need to treat tobacco-related
ailments ranging from episodic complications of emphysema/bronchitis to
the ongoing attention that must be paid to Atherosclerosis/Cancer.

Being a "radical-liberal-moderate-conservative-reactionary" with regard
to polemics, I can enjoy washing a good diatribe over my brain but (at
the end of the day) it's far healthier to stick to the facts of the
case.  The conclusion that the tobacco industry has somehow become
nationalized is a by-product, for example, of lobbyists who argue the
advantages of maintaining an incestuous relationship between Big Tobacco
and Big Government.  Noting the worldwide epidemic of preventable
tobacco-related illness, would it be too hard for the latter to try to
"divorce" the former?

Look at my quickly-composed letter to the AG, and ask yourself whether
PM has already adopted a cynical, arrogant posture with regard to the
specific contents of the MSA addressing billboards, youth advertising,
and youth promotion.  Then ask yourself whether it should fall to ONE
INDIVIDUAL (with INDISPENSIBLE help from two other Pennsylvanians) to
have to prod the state's CHIEF law enforcer to become motivated.  Then
re-read the MSA (http://www.naag.org or http://www.attorneygeneral.com)
and discover - as we did - why the "releasing parties" and "offset"
clauses sap any potential interest in government to discipline the
tobacco industry.  And if you don't think this is by design, then you
would probably think the Tobacco Industry uses attorneys that charge
less than $500 hourly.

Then, maybe, you may wish to encourage organized medicine (and others)
to endorse our work.  ASAP.

*

George Fisher wrote:
>
> Possibly of some help.
>
> ------------------ Forward Header --------------------

> WSJ, December 3, 1999, Review & Outlook
>
> Smoked Out
>
> Nobody can question that tobacco has become
> democratically unpopular, so much so that 45 million
> smokers might as well not exist as far as politicians are
> concerned. But we're still a country of laws, thank heaven.
>
> This week the Supreme Court heard arguments on the Food
> and Drug Administration claim that, because the cigarette
> companies knew about nicotine, Congress must have
> intended the FDA to regulate cigarettes as a "drug" all along.
> In other words, the tobacco industry has escaped regulation
> until now only by fooling everyone about the nature of its
> product. This is another argument about the meaning of "is,"
> an attempt to defy common sense and everyday knowledge
> with semantic tricks. Fortunately, the Justices seemed to be
> having none of it.
>
> Then again, the whole tobacco crusade has exposed the
> government as the worst disrespecter of the law, putting
> forth claims and arguments that no private citizen could hope
> to get away with. That helps explain why Blue Cross/Blue
> Shield and union health funds have thus far failed to cash in
> on the smoking-related illnesses bonanza even though they
> are presenting the same arguments used by state governments
> in the now-infamous Medicaid lawsuits.
>
> By now it's widely understood that the state financial claims
> were dubious. Smokers die on average six years earlier than
> non-smokers, saving the government money on its retirement
> and Social Security programs. With these savings and the
> taxes on cigarettes, the smoking habit represents a net
> government gain of about 85 cents a pack.
>
> The real issue here, however, is the 200-year-old doctrine of
> "subrogation," which means an insurer has a secondary
> claim for reimbursement only if the injured party has a
> claim. Jury after jury has found that smokers knew that
> smoking was bad for them and chose to smoke anyway. For
> that matter, insurance companies also knew smoking was
> bad and chose to insure smokers anyway. There is no claim.
>
> That's the law, and so far Blue Cross et al. are batting
> 0-for-4 at the appellate level.
>
> In the latest scathing opinion, the Seventh Circuit Court of
> Appeals wrote last month: "The food industry puts refined
> sugar in many products, making them more tasty; as a result
> some people eat too much (or eat the wrong things) and
> suffer health problems and early death. No one supposes,
> however, that sweet foods are defective products on this
> account; chocoholics can't recover in tort from Godiva
> Chocolatier. If, as the Funds and the Blues say, the
> difference is that Philip Morris has committed civil wrongs
> while Godiva has not, then the way to establish this is
> through tort suits, rather than through litigation in which the
> plaintiffs seek to strip their adversaries of all defenses."
>
> The Second, Fourth and Ninth circuits have come to similar
> decisions. In other words, these courts are rejecting the same
> arguments used last year by the state Medicaid agencies and
> their trial-lawyer friends to cut themselves into a $250
> billion share of the tobacco industry's future profits.
>
> So why didn't the tobacco companies fight those earlier
> cases to the end? Because they were worried about a
> Clintonized jury in states where they would have had to post
> a $200 billion bond just to appeal. Rather than put
> themselves out of business, they cut the best deal they could.
>
> Under the "anything goes" ethic of Washington these days,
> some would undoubtedly clap their hands in glee. If you can
> pass a law, as Florida did, that simply says the tobacco
> companies may offer no defense at all to a Medicaid lawsuit,
> well, yippee--what a triumph for society.
>
> The only problem is that these tactics can be turned against
> any industry unlucky enough get caught in the swirling gusts
> of the zeitgeist.
>
> Motorcycles are dangerous even when used properly, and
> adrenaline probably fits under some definition of addiction.
> Fatty foods cause heart disease, yet the human body craves
> fat. Even if a court decides that fast-food consumers are
> ultimately to blame for their rotundity, Medicaid and
> Medicare are "victims" and may collect under the new
> doctrine.
>
> The Washington Post editorialized yesterday that
> class-action product liability lawsuits against companies
> like Microsoft and the HMOs "have next to nothing to do
> with the interests of consumers but are essentially
> commercial ventures within the judiciary." Welcome to the
> club, but now there's a greater threat.
>
> The casual dismissal of subrogation in the tobacco cases
> represents an unprecedented lowering of the bar for vast
> new damages claims. The same scheming legalism lies
> behind Bill Clinton's federal suit against Big Tobacco.
> Claims that would have no hope when brought by
> individuals are capable of spawning government demands
> for reimbursement.
>
> This is the welfare state run amok. The implication is that
> people are chattels belonging to the government. And
> because the potential damages are so high, industries would
> have no choice except to settle. In all but name, the tobacco
> companies have become nationalized properties. Who's
> next?

...