Verdict - Fall 2015 - (Page 30)

> FeatUre story Powerful Wea i BY greg w. traYlor n march of 1993, mississippi lawyer request for injunctive relief.12 eleven private mike Lewis was visiting his secre- firms were on the complaint with moore.13 tary's mother, Jackie thompson, in a By any measure, what the attorneys gen- eral and private firms were able to accomplish After filing his own suit, moore set was a "landmark outcome."26 An undefeated, hospital in memphis, tennessee. ms. about to "build an army the size the tobacco deceptive legal giant agreed to pay amounts thompson's heart and lungs had given industry had."14 moore traveled around the "dwarfing even the largest tort liability judg- out after cigarette smoking had taken country meeting with other state attorneys ments and punitive damages award."27 its toll, and Lewis was filled with a desire for general.15 his efforts met with success and a 1 2 revenge. he later described the experience coalition of state attorneys general began to THE LEGAL THEOrY of seeing ms. thompson's body ravaged by form as more and more states filed their own the legal theory behind the medicaid suits smoking: "the emotion that i was really feel- medicaid suits. With mississippi's complaint was not original to mike Lewis. Seventeen ing was a desire for revenge, for vindication."3 as a model, minnesota and West Virginia sued years before mississippi filed its medicaid Lewis wanted to "destroy the tobacco indus- in 1994. Florida and massachusetts followed suit, donald Garner published Cigarettes and try, to put them out of business."4 in 1995.17 thirteen more states joined in 1996, Welfare Reform in the Emory Law Journal. 28 twenty-two in 1997, and two more in 1998. he argued: At this point in legal history, the tobacco 16 18 industry was an undefeated Goliath, moore had truly built an army. each [A] substantial and growing part of the remaining unscathed after almost 50 years state had its own department devoted to economic costs wrought by smoking are of litigation by employing its well-known the medicaid suits, and over 100 private borne by nonsmokers. . . . [W]hen an indi- "scorched-earth" defense. 5 An attorney for firms partnered with the attorneys general gent smoker develops a cigarette-related r.J. reynolds paraphrased General Patton to fight the tobacco industry.19 With the size illness, his medical bills are often paid by to describe the defense's winning strategy: and resources of the coalition of private firms the public through tax-supported hospi- "[t]he way we won these cases was not by and state attorneys general, Big tobacco was tals and social health care programs. the spending all of reynolds' money, but by mak- up against a unique kind of opponent, hitherto nonsmoking taxpayer is sick much less fre- ing [the enemy] spend all [of] his."6 unseen in its legal battles. quently; consequently . . . the nonsmoker As mike Lewis drove back to mississippi in January of 1997, r.J. reynolds' general is contributing proportionately more to the that night in march of 1993, he was struck by counsel was still confident, though, at least various health funds than he will receive the possibility of litigation against the tobacco publicly. Commenting on the state litigation, in return. . . . thus, the nonsmoking public industry on behalf of the state, not smokers.7 the tobacco lawyer stated: "[W]e're not in directly subsidizes and promotes the con- the state is harmed, Lewis thought, when it the business of settling cases that have no sumption of tobacco products. 29 spends money to treat tobacco-related dis- merit in law or fact." 20 to remedy this "irrationality," Garner pro- ease through its medicaid program. 8 Lewis Six months later, the tobacco companies posed terminating the subsidies provided by brought the idea to mississippi Attorney settled with mississippi for $3.6 billion. 21 A taxpayers by transferring the costs of smok- General and former law school classmate, month later, they settled with Florida for $11.3 ing from the taxpayers to the tobacco com- michael moore. 9 moore was initially skep- billion. 22 in 1998, the industry settled with panies. 30 one mechanism to do this, he called tical, but called his friend and trial lawyer texas for $15.3 billion and with minnesota "civil adjudication," or "a system of civil liabil- richard Scruggs and asked him to research for $6.6 billion, 23 followed by execution of the ity that would make the manufacturer whose the potential lawsuit with his partner, Steve master Settlement Agreement in November cigarettes caused an illness liable to repay the Bozeman.10 over the next year, moore assem- of 1998, settling the claims of the remaining appropriate government agency."31 bled a team of private lawyers, and on may 23, forty-six states, the district of Columbia, and the unique feature of the public-private 1994, mississippi became the first state to sue five u.S. territories. 24 Although most reports alliances in the tobacco litigation was not the the tobacco industry on behalf of its citizens to value the master Settlement Agreement at legal theory, or even the use of private attor- recover funds spent treating tobacco-related $206 billion, the actual value through 2023 is neys in government litigaton. 32 the unique 11 diseased through its medicaid program. slightly more than $211 billion, and the tobacco aspect of the litigation, and indeed the key to the complaint alleged unjust enrichment, companies must continue to make payments its success, was that, unlike previous "private indemnity, public nuisance, and contained a in perpetuity. attorneys general," the fees that the tobacco 30 Georgia Trial Lawyers Association 25

Table of Contents for the Digital Edition of Verdict - Fall 2015

President’s Message
What’s New at HQ
Tips for Selecting and Implementing a New Case Management System
How I Obtained Justice for My Client
What You Need to Know About Mass Torts & Multidistrict Litigation
London Calling: Navigating the Waters When Taking a Deposition Overseas
Ethical and Practical Considerations of Co-Counseling
Avoiding Landmines: Identifying, Locating and Serving the Non-U.S. Corporate Defendant
Powerful Weapons: Public-Private Alliances Between State Attorneys General and Private Lawyers
Multidistrict Litigation: Friend or Foe?
Civil Lawyers Against World Sex Slavery
Getting Out-of-State Evidence: Domesticating a Subpoena
New Lawyers’ Corner: Five Tips for Hanging your Shingle
Case Updates: What’s New?
Workers’ Comp Updates
Champion Members
Welcome New GTLA Members!
Index to Advertisers

Verdict - Fall 2015

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