ASH resources: 
Tobacco litigation

See also our Tobacco industry news page

Latest cases       

Click here for OVERSEAS cases - including BIG TOBACCO: GUILTY AS CHARGED in US conspiracy case      

AUSTRALIA                         

Laurie case: a turning point in health harm actions against tobacco companies?
1/8/06: The death of an Australian who smoked from the age of nine while suing British American Tobacco has drawn worldwide attention and again raised issues of tobacco industry dishonesty.  See report in The Bulletin 1/8/06  - includes discussion of  Mowbray case below.

Mowbray case: tobacco company document shredding "fraudulent" says judge
10/6/06: A NSW judge has found British American Tobacco's destruction of sensitive documents was "for the purpose of a fraud".   See  British Medical Journal  report on the Mowbray/Brambles case in the NSW Dust Diseases Tribunal.

Myriam Cauvin v Philip Morris and Ors.
Legal action by emphysema sufferer trying to win tobacco industry accountability. The 41-year-old tobacco addict from Blaxland (Blue Mountains NSW) started smoking when she was just 10 – and now says Philip Morris and British American Tobacco should be made to set up a national compensation scheme to pay for their misleading and deceptive conduct in breach of the Trade Practices Act. Health leaders have criticised the Federal Government for not backing the case in the public interest. 

24/3/06: Justice Bell in the NSW Supreme Court has approved a form for the statement of claim to proceed.  See  judgment 

26/8/05: Justice Bell handed down latest judgment allowing the Cauvin claim to proceed but the judge declined to join the overseas companies in the action. See  the judgment

15/2/05: The tobacco companies appealed against a ruling (below) which might allow costs of public education campaigns against tobacco to be billed to the companies.  See The Australian report 15/2/05    

24/9/04: The NSW Supreme Court rejected a class action claim by emphysema sufferer Myriam Cauvin, denying her the right to take legal action against tobacco companies on behalf of others who have suffered harm from their products. Cauvin still has the right to proceed on her own behalf - and on behalf of others if they are joined as a party in the proceedings and she can obtain orders (see below), and to obtain orders to remedy the effect of alleged misleading and deceptive conduct by the tobacco industry. See NSW Supreme Court judgment 24/9/04     Big Tobacco breathes sigh of relief as ruling lets them off the hook again: see report on  The World Today, ABC Radio 24/9/04 

22/12/03: Myriam Cauvin won the right to proceed on her own behalf with Australia’s first class action against cigarette companies. NSW Supreme Court judge Virginia Bell has ruled that even though Ms Cauvin was broke, her claim was bona fide and she had an arguable case. Justice Bell said eventually someone would start such a claim and it might as well be Ms Cauvin. Cauvin v PM (common law case) judgement  Sydney Morning Herald report 22/12/03      Melbourne Age report 22/12/03

The Tobacco Tax Windfall cases
In a separate Equity action, Ms Cauvin sought $230m "windfall" from invalidated tax in fight to make tobacco companies fund health support (Sydney, 16/5/02). The special leave application was heard in the High Court in Sydney on April 2, 2004.    Equity proceedings - Statement of Claim 

In a WA case over the same "windfall" tax recovery issue, the High Court ruled on 2/9/03 that British American Tobacco had a right to proceed against the state of WA to recover almost $7m of tobacco license fees.

Win for passive tongue cancer victim: Edge v WorkCover Corporation  SA
October 2005: South Australia barworker Phil Edge, 29 and a non-smoker, won an undisclosed sum as compensation for tongue cancer caused by working for three years in a smoky Adelaide pub. Edge had part of his tongue removed and endured years of radiation therapy, speech therapy and more. The case highlights the legal obligations of employers to remove secondhand smoke from workplaces.   See  SmokeFree Australia media release 21/11/05   More details in  Nick Xenophon MP media release 20/11/05   See also earlier smoky workplace cancer case of Sharp v Port Kembla RSL (below)

Rolah McCabe v BAT Australia Services Ltd
Rolah McCabe, a 51-year-old grandmother dying of lung cancer who became addicted at 12 years of age, sued British American Tobacco for damages. The case became famous because of the argument over destruction of documents by the tobacco company. The case was finally lost in the High Court on legal technicalities - but it was not disputed and has been confirmed in later testimony in the US that BAT had destroyed thousands of potentially embarrassing documents on tobacco harm, addictiveness and targeting of children.

Something good comes of the McCabe case: 
Victoria beefs up evidence laws after McCabe case
9/11/05: The Victorian Government is introducing new laws outlawing intentional destruction of documents to prevent them being used as evidence in court. The move follows the McCabe case, where BAT had destroyed large numbers of documents but her case was lost on appeal because it could not be established that the destruction was specifically relevant to her case.   ABC News online 9/11/05   

3/10/03: The family of Rolah McCabe lost its application for special leave to appeal to the High Court after her death.    See media coverage of High Court decision

Rolah McCabe, a 51-year-old grandmother dying of lung cancer who became addicted at 12-years of age, was awarded damages of $700,000 by a Victorian Supreme Court jury (Melbourne, 12 April 2002).   Relevant excerpts from the original Supreme Court judgment; full judgment. 

The decision was overturned on appeal by the Victorian Appeals Court (6/12/02) and a new trial ordered.   Appeal decision:  Download Brief Analysis (pdf 212kb) or more detailed analysis (272kb).   Note: You may need to hit 'refresh' to get the latest versions of these.

What now?  'Destruction of documents before proceedings commence: what is a court to do?' by Camille Cameron and Jonathan Liberman was published in the Melbourne University Law Review (2003) 27 MULR 273. The article argues that the Court of Appeal's decision in the McCabe v British American Tobacco case is flawed and should not be followed by other courts. (PDF 215kb)

Philip Morris settles with lung cancer victim
28/8/03: Philip Morris has settled a lawsuit with a former employee battling lung cancer - and avoided the embarrassment of trying to prove his illness was linked to cigarettes. Philip Morris made a substantial out-of-court payment to former employee Lionel Newman, 62, a heavy smoker who was exposed to deadly asbestos dust at the company's Moorabbin plant.    See Melbourne Herald-Sun report, 28/8/03

Philip Morris fined for breaking NSW law over student fashion promotion:
SE Sydney Area Health Service v Philip Morris Ltd and v Wavesnet Pty Ltd
Philip Morris pleaded guilty and was fined in Sydney's Downing St Local Court on November 8, 2002 for offences against the NSW Public Health Act. These cases arise from promotions targeting women at a youth  fashion event at Sydney’s Fox Studios. It was the first time Philip Morris was convicted for breaking tobacco advertising laws. More...

Marlene Sharp v Port Kembla RSL
In a major passive smoking case, Marlene Sharp, a 62-year-old former bar attendant who worked at Port Kembla RSL Club was awarded $466,000 in damages by a NSW Supreme Court jury  (Sydney, 2001). Marlene Sharp's award was a world first: the jury for the first time accepted the causative link between exposure to passive smoke and the contraction of throat cancer.    More details

OVERSEAS

Italy:  Court upholds lung cancer death award to family 
12/11/07: Italy's highest court has upheld a AUD$330,000 award from British American Tobacco to the family of a lung cancer victim - believed the first time in Europe a smoking-related damages ruling has been upheld by a higher court.  See  AP report 12/11/07

Nigeria:  Tobacco companies sued for $42 billion
8/11/07: The Nigerian government is suing three tobacco companies including BAT and Philip Morris for AUD$42 billion - accusing them of promoting underage smoking.  See  ABC news report 8/11/07 

USA:  TOBACCO INDUSTRY "UNLAWFUL, DECEPTIVE AND LETHAL": JUDGE

17/8/06: US District Judge Gladys Kessler has issued a damning judgment against the tobacco industry in the U.S. government's landmark lawsuit against the major tobacco companies. She found that the major companies have violated civil racketeering laws, defrauded the public, lied for decades about the companies’ targeting of children and about the health risks of smoking.

While not awarding the US$130b compensatory anti-tobacco fund asked for by health groups, Judge Kessler's 1,600-page final opinion details the tobacco companies' unlawful activity and the devastating consequences for health over more than fifty years.

Just a few excerpts: “[The tobacco companies] have not ceased engaging in unlawful activity... Their continuing conduct misleads consumers in order to maximize … revenues by recruiting new smokers (the majority of whom are under the age of 18), preventing current smokers from quitting, and thereby sustaining the industry." 

"[This case] is about an industry, and in particular these Defendants, that survives, and profits, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system. Defendants have known these facts for at least 50 years or more. Despite that knowledge, they have consistently, repeatedly, and with enormous skill and sophistication, denied these facts to the public, to the Government, and to the public health community... In short, Defendants have marketed and sold their lethal products with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted."

Despite the overwhelming wrongdoing she found, Judge Kessler felt constrained in the remedies she could impose on the tobacco industry because of a controversial appeals court ruling that restricted financial remedies under US civil law.     See summary at   tobaccofreekids.org    and  full judgment   See report in  ABC (Australia) news online

See also longer summary in CBS news  – which also mentions the involvement of the current US ambassador to Australia. An excerpt:

“Kessler, who presided over the nonjury trial in the case, said that adoption of a national stop-smoking program, as sought by the government, "would unquestionably serve the public interest" but that she was barred by an appeals court ruling that said remedies must be forward-looking and not penalties for past actions.

"The government had asked the judge to make the companies pay $10 billion for smoking cessation programs, though the Justice Department's own expert said $130 billion was needed.

That reduction in recommended remedies led to accusations that Robert McCallum, an associate attorney general appointed by President Bush, had tried to weaken the case. An internal Justice Department investigation cleared him of wrongdoing, however, saying he was supporting a figure he thought could be sustained on appeal. McCallum is now U.S. ambassador to Australia.”

NZ:  Big Tobacco again escapes being made to pay for its harm
3/5/06: New Zealand's Smokefree Coalition and Action on Smoking and Health have expressed disappointment after Justice Lang’s decision not to award compensatory damages to the family of Janice Pou, who died of lung cancer in 2002. Her children, Brandon and Kasey Pou sought $310,000 from British American Tobacco and WD and HO Wills.   See  ASH NZ media release 3/6/06

US: Damages award upheld against "extremely reprehensible" Philip Morris
April 2004: For the third time in less than three months, a court has upheld an individual plaintiff’s verdict in a product liability case against Philip Morris.  Each time, a multi-million punitive damages award against the company for the ‘extreme reprehensibility’ of its misconduct has survived attempts by the company’s lawyers to have the punitive damages awards overturned.
 
On April 21, the Court of Appeal of the State of California, Second Appellate District, Division Three, upheld a US$28 million punitive damages award in the case of Bullock v. Philip Morris USA, Inc.  See the  opinion   The Court of Appeal concluded ‘that the refusal of Philip Morris’s proposed jury instructions on punitive damages was proper’ and also held that ‘the extreme reprehensibility of Philip Morris’s conduct justifies a ratio of punitive damages to compensatory damages significantly greater than a single-digit.’  In 2002, a Los Angeles jury returned a verdict for the plaintiff in the amount of US$850,000 in compensatory damages and US$28 billion in punitive damages.  The trial judge later lowered the punitive damages award to US$28 million.
 
On 2/2/06, the Oregon Supreme Court in the Williams case upheld a AUD$107.7m punitive damages award against Philip Morris USA, to the family of smoker Jesse Williams who died of cancer.  See  backgrounder      See CNNmoney report 2/2/06

US: Four more states sue tobacco companies for money owed under 1998 settlement
The Jurist, 20/4/06: Illinois, Maine, Massachusetts, and Ohio have joined California and New Jersey [JURIST report] in suing tobacco companies for money they say is owed under the 1998 Master Settlement Agreement (MSA) [text]. The Illinois Attorney General says the state is owed almost $40 million [press release] and is suing to recover that money and to ensure that the state doesn't lose out on future money as well. The dispute arises from a provision of the settlement that allowed tobacco companies to reduce payments in response to lost business. Breakdowns in negotiations have led to the suits [AP report]. Maine filed suit [press release] seeking approximately $5.5 million for the same dispute [AP report]. Ohio is seeking $38 million [press release]. More states are also expected to file claims, including New York and Connecticut.

Canada:  Court decision clears Canadian province to pursue Big Tobacco for health costs
30/9/05: The Supreme Court of Canada has voted unanimously (9-0) to uphold the constitutionality of British Columbia's legislation on recovering health care costs attributable to tobacco. This means the province (and probably other Canadian provinces) is now free to go to trial against the three big Canadian manufacturers AND their parent companies (BAT and Philip Morris are among the defendants, though PMI is trying to get out of the case).   See the  ruling    More info: email  Non-Smokers' Rights Association, Canada 

Japan:  Court says "no definite link" between smoking and cancer !
22/6/05: A Japanese court has dismissed a suit by sick ex-smokers seeking damages from monopoly Japan Tobacco and the state, saying no link has been "fully" established between smoking and cancer. AFP

US:  Concern at possible political interference in US tobacco fraud case
21/6/05: Health groups have asked the US Justice Department not to proceed with a settlement after the Department's nine-month "50 years of fraud" racketeering case against major tobacco companies - until claims of political interference in the settlement amount are cleared up.   See update and media reports 21/6/05  
Gene Borio, who runs the website www.tobacco.org  (tobacco news website), attended the trial daily. His detailed records can be found on the website www.tobaccco-on-trial.com.   More tobacco documents related to the case can be found at http://tobaccodocuments.org

China:  Slaying the smoking dragon
31/3/05: China's first lawsuit against its State Tobacco Monopoly has been launched - by a 21-year-old smoker who says the company didn't warn him of the dangers of smoking.  See media report 31/3/05

US:  Damning testimony on BAT document destruction
26/2/05: Read this testimony in the US v Philip Morris et al case - from former WD & HO Wills (British American Tobacco subsidiary) company secretary and lawyer Frederick Gulson. Very embarrassing to BAT - goes into its whole policy of destroying documents (research, marketing methods etc) likely to be held against it.  See tobacco.org summary and the testimony 

US:  "I helped BAT Australia destroy documents"
26/9/04: Lawyer tells US court about what Big Tobacco means by "document retention." See Melbourne Age report 26/9/04  (look under Sept 2004, Birnbauer...)

US:  Way cleared for huge class actions over "Lights" deceit 
16/8/04: The highest court in Massachusetts, USA has opened the way for hundreds of thousands of smokers to mount class action suits against Philip Morris for duping them into believing "Marlboro Light" cigarettes were safer than "regular" brands.    See Tobacco Products Liability Project 13/8/04 

UK:  Imperial guilty of breaking law
4/8/04: Imperial tobacco found guilty of breaking advertising law in the UK.     
See ASH UK release 4/8/04

US:  Court decision over "Lights" coverup
21/3/04: Philip Morris has been found guilty in a US class action of misleading smokers for more than 30 years about the dangers of "light" cigarettes. The company has been forced to pay US$10b in damages.  More...   View the decision...

For latest on US cases: 
Gene Borio, who runs the website www.tobacco.org  (the definitive tobacco news website), has detailed records of every day's activities at www.tobacco-on-trial.com    More tobacco documents can be found at http://tobaccodocuments.org , which now has a faster full-text search engine behind it.

Legal Update, a quick, user-friendly bulletin from the Tobacco Control Legal Consortium, brings you news on key US legal developments.  Legal Update Nov '04 issue   contains updates on two landmark tobacco advertising cases, information on a potentially significant New York decision, and a new, free publication that summarizes the MSA’s limitations on tobacco product marketing and advertising.

Reports and guides

Towards health with justice
New report from the WHO on worldwide use of litigation and public inquiries as tools to help improve tobacco control. Or view the slideshow of this report.

Passive smoking legal actions
A guide to passive smoking and the law includes a list of successful legal actions under OHS, common law, disability discrimination and workers compensation.

How to take legal action

If you have a smoking caused or related injury, you may want to seek legal advice. 

ASH is not offering legal advice but we can recommend that you either contact your own solicitor or a specialist in personal injury or the Australian Plaintiff Lawyers Association (APLA). APLA has formed a tobacco litigation committee and upon contact will  distribute a list of lawyers experienced in tobacco litigation. Before proceeding, ask your solicitor to fully explain any financial consequences of a court action.

How to "dob in" a tobacco company

Some former tobacco company employees have become whistleblowers and provided crucial information about the deceptive and misleading practices of the tobacco companies. 

For example, Dr Jeffrey Wigand, a former Brown and Williamson executive provided evidence that exposed tobacco companies for manipulating nicotine levels and covering up their knowledge about the addictiveness of nicotine.

Whistleblowers are yet to emerge in Australia, but former tobacco company employees who developed health problems from their exposure to cigarette testing machines and tobacco dust have successfully settled legal actions against their former bosses.

If you have any concerns about the practices of the tobacco industry, please email or post to ASH for advice.

International sites on tobacco litigation

Tobacco Control Resource Centre

Legal and policy orientated site with insights into the US litigation and settlements. Also home of the tobacco Products Liability Project.

ASH (USA)

ASH in the USA has been around for 31 years and is a very active national legal action group.

 Page last updated on 28/8/08