WASHINGTONA federal judge has narrowed the governments
lawsuit against the tobacco industry but has allowed the Justice
Department to proceed with its case using a federal racketeering statute.
Judge Gladys Kessler of the US District Court for the District of
Columbia ruled that the government could not pursue its $20 billion
action against the tobacco companies under two laws, the Medical Care
Recovery Act (MCRA) and the Federal Employees Health Benefits Act
(FEHBA). She did allow government attorneys to proceed with the
lawsuit using the Racketeering Influence and Corrupt Organizations
Judge Kessler ruled that the Justice Department had failed to act
promptly enough to recover the health expenses paid by the government
for tobacco-related illnesses dating back to the 1950s.
Congress total inaction for over three decades
precludes an interpretation of MCRA that
would permit the government to recover Medicare and FEHBA
expenses, she wrote in her decision. Accordingly, the
governments MCRA claim must be dismissed.
However, the judge upheld the governments right to continue its
action under the racketeering law. Based on the sweeping nature
of the governments allegations and the fact that the parties
have barely begun discovery to test the validity of these
allegations, it would be premature for the court to dismiss the
lawsuit entirely, she said. At a very minimum, the government
has stated a claim for injunctive relief; whether the government can
prove it remains to be seen.
The Justice Department filed its lawsuit in September 1999,
contending that the industry had long misled the public about the
health risks of smoking. It argues that the court should force
cigarette makers to surrender their profits, which it contends were
gained through an unlawful activity.
The department also wants the court to order the industry to change
its marketing and advertising practices. The suit names nine tobacco
companies and two industry groups.
Several health groups expressed disappointment at Judge Kesslers
decision to bar use of the two federal health acts in the lawsuit,
but applauded her decision not to dismiss the case entirely, as the
industry had requested.
The ruling is a repudiation of repeated assertions by the
tobacco industry and its defenders in Congress that the lawsuit is
entirely without merit, said William V. Corr, executive vice
president of the Campaign for Tobacco-Free Kids.
Mr. Corr and other antismoking advocates also called on Congress to
fully fund the lawsuit, which the Justice Department has estimated
will cost the government $40 million over the next 2 years.
The Republican leadership and members from tobacco-growing states
have sought to deny the money necessary to pursue the case. Any
move by Congress to stop the lawsuit now would be seen as a blatant
attempt to protect Big Tobacco from serious federal claims, the
American Cancer Society said.