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The Future of Tobacco Litigation: Impact of Reduced Risk Products and the FDA Bill

The Future of Tobacco Litigation: Impact of Reduced Risk Products and the FDA Bill. Richard A. Daynard, J.D., Ph.D. Public Health Advocacy Institute Northeastern Univ. School of Law. The Future, Currently. Punitive damages live (I think) California litigation unleashed

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The Future of Tobacco Litigation: Impact of Reduced Risk Products and the FDA Bill

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  1. The Future of Tobacco Litigation: Impact of Reduced Risk Products and the FDA Bill Richard A. Daynard, J.D., Ph.D. Public Health Advocacy Institute Northeastern Univ. School of Law

  2. The Future, Currently • Punitive damages live (I think) • California litigation unleashed • Thousands of Engle class action follow-on cases • Massachusetts strict product liability cases • DOJ case sanctions, and appeal • Light cigarette class actions • Canadian health care (AG-like) cases

  3. BTW, Why do we Care? • Bad documents, bad karma • Trashing their customers • Raise the price, reducing consumption • New, better settlements? • Improve political climate

  4. What difference would Reduced Risk Products make? • The current “safer” products – “light” cigarettes – have gotten them in trouble • Schwarz v. PM (OR) products liability case saw $100 million punitive damages for light cigarette fraud • Miles v. PM (IL) “lights” consumer class action case saw $8 billion compensatory damages, reversed on (non-existent) technicality • Aspinall v. PM (MA), similar to Miles, given green light by state Supreme Judicial Court • Schwab (national RICO lights class action), certified by Judge Weinstein, on appeal

  5. Whether new “safer” products produce similar litigation depends on how they’re marketed and whether they’re really safer • If FDA bill passes, FDA-approved reduced risk products/marketing will be bullet-proof • Marketing a genuinely safer product puts their other products at legal risk • Demonstrates alternative design possibility, needed for strict product liability • Raises question why they didn’t do it earlier, and to their whole product line

  6. Effect of FDA bill on litigation? • Very little (other than for approved reduced risk products)! • Manufacturers can tell juries that “we’re regulated”, suggesting (a) they no longer have free choice, and (b) no need for punitive damages since they are unable to sin anymore, but • They will still make choices • Current diseases result from pre-regulation products • General deterrence • Drug companies have been regulated for a century, but still get hit with big verdicts

  7. Questions? Catcalls?

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