Subject:
             Appeal Filed in PA on 2/11/99, Regarding Activists' Challenge to MSA
        Date:
             Sat, 13 Feb 1999 11:52:12 -0500
       From:
             Robert Sklaroff <rsklaroff@home.com>
 Organization:
             @Home Network
         To:
             "tob-info@globalink.org" <tob-info@globalink.org>
 
 

One month ago, Philadelphia Court of Common Pleas Judge John W. Herron
rejected a challenge to the indemnification language in the Master
Settlement Agreement affecting state-wide Medicaid claims against Big
Tobacco.  It had been filed by three individuals and thirteen
organizations.  An appeal filed by multiple individuals and
organizations was filed & docketed on 2/11/99.

[I will only speak for myself.  The other co-petitioners may be
contacted directly for input.  A FAST way to discern what occurred is to
contact Ms. Alice Ballard, Esquire, who kindly submitted the *pro se*
documentation to the Phila. Court of Common Pleas as a personal favor;
her represention of the co-petitioners has ended. I am informed, also,
that useful information may be available regardint the appellate status
of the City of Pittsburgh, although I am also informed that it may not
be necessary to contact the hospitals that had participated in the
original process.]

I am, therefore, explaining why I filed an appeal.

I am grateful to Judge Herron for the full and complete hearing he gave
the concerns put forth by the co-petitioners.  As Ms. Ballard
painstakingly explained both in her Brief and in her Oral Arguments, the
revised petition to intervene in the tobacco settlement sprung from
wide-spread fundamental discomfort with provisions in the Master
Settlement Agreement that allowed the Attorney General to release claims
on behalf of private entities (people, organizations and governmental
subunits) against the tobacco industry.

Big Tobacco has a history of devilish creativity in its connivance to
evade the law and addict each new generation of children to nicotine.
That's why the co-petitioners expressed dismay that the agreement
appears to tie the hands of anti-tobacco activists in future efforts to
hold the industry legally accountable for its behavior and,
specifically, to ensure its compliance with the MSA's provisions.

I feel Judge Herron understood our argument, because it was reflected in
his query of Mr. Fox (speaking for the Attorney General) when he asked
him to justify the state undertaking to indemnify the tobacco industry
against future punitive damages.  Seemingly, he appreciated that the
state government would, in effect, be offering Big Tobacco an insurance
policy against the consequences of its own malfeasance.
 
The essence of the matter will undoubtedly be addressed in the judicial
opinion that this appeal will officially provoke.  I hope Judge Herron
will recognize that the Attorney General expressed his intent not to
have chilled any potential litigation.  Further, I hope he will help the
individuals and organizations -- cities/counties and
hospitals/universities -- that are selflessly focused upon maximal
promotion of public health.  I don't think this would compromise the
state's interest in the promised $11 billion settlement.

Judge Herron seemed to afford substantial weight to the concerns
articulated by the co-petitioners, and his queries suggested he was
directing meticulous attention to balancing the equities among the
parties who are "players" in this unique situation.
He did his "homework" prior to both Hearings, and this greatly
facilitated presentation of the petitioners' views.  I have no doubt he
will thoroughly  investigate all facets of this matter and, thereby,
recognize the favorable impact tobacco litigation has undoubtedly had
upon maximizing public health.

Mr. Fox, speaking for the Commonwealth, urged Judge Herron to discount
the danger of the Attorney General's release of Big Tobacco's future
liability, not only on the Commonwealth's behalf but also behalf of the
co-petitioners.  I was impressed that he praised our motives and,
specifically, that (during his closing arguments on the first day of the
Hearing) he cited the interests of my 8-1/2 year old son (who was
sitting in the Jury Box) as central to his personal concerns.

Mr. Fox argued that the settlement should be approved as written because
the terms of the release would do no harm.  He noted that, elsewhere in
the settlement agreement, it is stated that the release is only
effective to the extent that the Attorney General has legal authority to
release such claims.  The Attorney General has no such authority, he
argued, and so the release provisions should not be a concern.

I certainly agree that the Attorney General has no authority to release
the co-petitioners' claims against the tobacco industry. . .or those of
cities, counties and hospitals within the state, for that matter.  One
of my concerns, however, is that Big Tobacco's (deserved) reputation for
creating legal obfuscation could tie up t years, and wear
out the resources of all plaintiffs except those with the deepest
pockets and the most staying power.  As Mr. Fox has stated, these
release provisions will probably be found not to have force against
non-profit organizations (or hospitals, cities and counties), but years
could be consumed litigating this point. . .years of opportunity for the
merchants of death to continue their deceptive and illegal practices
with impunity.

I hope the opinion cuts through this problem, and avoids delay.  If it
does so, he will not endanger the state's claim to settlement monies.
He need only affirm, as a matter of law, that the Attorney General had
no authority to bind citizens, non-profit groups, hospitals, or
political subdivisions.  He need only conclude this understanding
justifies approval of the settlement.

My greater concern is that the offset provisions of the settlement grant
tobacco companies and their agents immunity from punitive damage awards
for the next quarter-century.  I hope the opinion articulates the
existence of this subtle force without jeopardizing approval of the
agreement, thereby leaving the matter for another court to address when
punitive damages have actually been awarded.

Under such circumstances, we hope the state would not "side" with Big
Tobacco, just because any monies paid to settle claims would be deducted
from payments to the states, for this would enervate tobacco control
efforts statewide.  We hope the state will continue to work with such
organizations as those filing this appeal, so as to ensure abuses by Big
Tobacco are identified and rectified promptly.