ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, February 20, 1996 TAG: 9602200059
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
DATELINE: RICHMOND
SOURCE: Associated Press
SUPPORTERS OF THE LEGISLATION note that it applies to all industries. But critics argue that it's just a way for the tobacco industry to avoid liability.
A bill quietly advancing in the General Assembly would make it virtually impossible for the state to succeed in suing tobacco companies to recover the cost of treating poor people with smoking-related illnesses.
Five states - Mississippi, Minnesota, West Virginia, Florida and Massachusetts - have filed such lawsuits. None has been decided.
Legislation pending in Virginia's tobacco-friendly assembly would allow the industry to argue that smokers knew the risks, thus mitigating tobacco companies' responsibility for causing illness.
Edward L. Sweda of Boston, senior attorney for the Tobacco Products Liability Project, said Monday that such a defense should be irrelevant in lawsuits that are filed on behalf of taxpayers rather than individual smokers.
In other states, Sweda said, the general rule of law is that contributory negligence cannot be argued because the plaintiff - the state - did not smoke.
``The Virginia bill is an inoculation for the tobacco industry against these lawsuits, which are intended to benefit taxpayers by recovering the money they would have to spend to treat indigent smokers,'' he said.
Sweda said if the bill passes in Virginia, he expects the tobacco industry to push similar legislation in other states. The bill passed the House of Delegates 90-10 last week and is now in a Senate committee.
Supporters of the bill argue that it applies not just to tobacco companies, but to all industries.
``Obviously, it has some impact on the tobacco industry, but other manufacturers are for it too,'' said Del. Ward Armstrong, D-Henry County and chief patron of the bill.
Charles Midkiff, a Virginia Manufacturers Association lobbyist, said the bill guarantees that a manufacturer sued for Medicaid reimbursement ``could assert the same defenses it could assert if the patient sued them.''
He said such assurances are needed if Virginia wants to continue to be known as a pro-business state.
``If tobacco were the only concern, I probably wouldn't be here supporting it,'' Midkiff said.
But the legislation was requested by Anthony F. Troy, a lobbyist for the powerful Tobacco Institute, and six of the other seven sponsors of the bill are from Southside Virginia's tobacco-growing region.
``It looked to me like it might be a special deal for the tobacco companies,'' said Del. Kenneth Plum, D-Fairfax County and one of the 10 delegates who voted against the bill. ``At a time when we're all concerned about tobacco's impact on health, it seemed inappropriate.''
The Virginia Group to Alleviate Smoking in Public, or GASP, was unaware of the bill's effect until it was already on the House fast track. Only in recent days has the organization begun lobbying against the bill, which is replete with legal jargon and never specifically mentions tobacco.
Troy acknowledged that helping the tobacco industry ``is a motivation'' for the bill. However, he said the legislation simply affirms an existing legal principle.
``All this says is that if the state brings an action to recoup money from citizens - be they individual or corporate - the same rules apply as would apply today if it were the Medicaid recipient suing,'' he said.
``Yes, it appears that the attorney general's office could still sue, but apparently only with its hands tied behind its back, body strapped to a chair, and feet glued to a board,'' Virginia GASP executive director Hilton Oliver wrote in a letter to Attorney General Jim Gilmore.
Troy, himself a former Virginia attorney general, said attorneys general in states that have sued the tobacco industry have ``taken the position the state should be able to recoup regardless of principles of law.''
He said he has no quarrel with a specific company paying damages if a smoker can prove liability.
``What we are saying is that if there is no liability on an individual or corporation, the rules shouldn't be changed so an industry starts paying for that which taxpayers are now paying,'' Troy said.
Sweda said it is appropriate for the industry to pay the costs of treating smoking-related illnesses.
``You have three parties - the sick smokers, who are too poor to pay for treatment; the tobacco companies, who profit when their product is used as the companies intend; and the state,'' Sweda said. ``One of the three is going to pay the bill. It's not going to be the indigent smoker, because he doesn't have the money. So it's either the taxpayers or the tobacco companies.''
LENGTH: Medium: 89 lines KEYWORDS: GENERAL ASSEMBLY 1996by CNB