PENNSYLVANIA CANNOT ACCEPT A SECOND-BEST AGREEMENT WITH BIG TOBACCO

Big Tobacco is positioning itself above the law - forever - by paying off
Big Government. Big Tobacco is limiting its fiscal losses - forever - by
burdening smokers and taxpayers with its huge liability for America's
deadliest drug addiction. We must stop Big Tobacco.

This is the essence of the Master Settlement Agreement - the "MSA" -
between Big Tobacco and the state governments, including Pennsylvania.
Although they have escaped public debate until now, the above realizations
have animated my litigation against its implementation. I want to fix the
MSA, not kill it.

The first four settling states (Mississippi, Florida, Texas and Minnesota)
received twice as much as Pennsylvanians would be reimbursed per capita for
Medicaid-related expenses. And those states did not immunize Big Tobacco
from future lawsuits. Pennsylvanians deserve no less.

The MSA defines "Releasing Parties" as the commonwealth of Pennsylvania and
its political subdivisions, plus, potentially, "persons or entities acting
in a parens patriae, sovereign, quasi-sovereign, private attorney general,
qui tam, taxpayer or any other capacity." Attorney General Mike Fisher
reassures us that he doesn't have the power to "preclude any Pennsylvanian
from suing any defendant." I merely want him to so stipulate this,
mandating that Big Tobacco concur.

This past spring, I sued Philip Morris because it paid for billboard
advertising that was expressly banned by the MSA. As anticipated, Big
Tobacco is trying to have my suit dismissed by invoking the MSA's
indemnification clause. This contradicts unambiguous language in the MSA,
but the attorney general has remained silent. He has failed to force Big
Tobacco to comply with the MSA, and he has failed to condemn Big Tobacco
for abuse of the MSA's immunity protections.

The MSA mandates that a case that yields a "settlement or stipulated
judgment shall give rise to a continuing offset against the full amount of
such original participating manufacturers' share on a dollar-for-dollar
basis." The attorney general reassures us this wouldn't apply to individual
lawsuits, only to Medicaid-related causes of action that constituted the
reason the original suit was filed. Again, I want him to so stipulate, and
I want Big Tobacco to be bound by this clarification.

In Oregon, Philip Morris has invoked the offset to avoid paying punitive
damages derived directly from a lawsuit filed by an individual with lung
cancer. This contradicts unambiguous language in the MSA, but our attorney
general has again remained silent.

That is the core of what I have sought during this yearlong legal battle.

With all due respect, reassurances from the attorney general are
meaningless unless they receive concurrence from Big Tobacco. Lip service
won't suffice.

By "running interference" for Big Tobacco - also eerily silent throughout
this debate - the attorney general contravenes sound public health policy.
Instead, he and the governor should seek to "detoxify" smokers and to
"detaxify" governments, for both have grown far too dependent on tobacco.
Thus, this MSA isn't a "good first step" toward achieving meaningful
tobacco control. Rather, it threatens to become "the last word" in public
health.

Big Tobacco insists vague language blocking public-interest lawsuits cannot
be severed from the MSA, and it wants the ambiguous definition of
"Releasing Parties" to be enacted through House Bill 445, currently before
the Pennsylvania House Judiciary Committee. The latter signals legislative
intent - not withstanding the attorney general's reassurances to the
contrary - providing precedent for future use by Big Tobacco. Here,
immunity for future crimes is unqualified vis-E0-vis whether the attorney
general is empowered to grant it. Thus, passage of this bill could have the
effect of giving him that authority.

Although introductory language is generally not formally adopted as
statute, this could occur due to how "Section 2. Declaration of Policy" has
been drafted. The key excerpt: "The General Assembly finds and declares as
follows: The MSA obligates these manufacturers, in return for a release of
past, present and certain future claims against them as described therein,
to do the following."

A Post-Gazette editorial last week ("Medical Blockage," Oct. 13) claimed
that my lawsuit was unnecessary. It quoted an undocumented, erroneous and
irrelevant sentence in a Commonwealth Court opinion, which said that "other
entities, including the commonwealth, are vigorously litigating against the
tobacco industry."

This is not true. The only pending case against Big Tobacco in Pennsylvania
is my suit against their having violated the billboard ban. And the only
prior case against Big Tobacco filed by the state is the Medicaid
litigation that led to the MSA.

This whole story shows how Big Tobacco strips Big Government of any
motivation to enforce the MSA. The MSA would reduce the ability to fine Big
Tobacco for violating the MSA into a lame exercise; money would merely be
removed from one pocket and placed into another. Society's ability to
enforce the law would be rendered impotent.

My alarm is like Cassandra's warning when the Greeks built the Trojan
Horse: "Beware of Big Tobacco Bearing Gifts!"