By Alvin Powell

Special to the Gazette

Big tobacco is offering $368.5 billion to settle tobacco-related lawsuits, but legal authorities who gathered at the Law School in August say it is unfair because it would force future plaintiffs to give up key legal rights, such as the right to sue for punitive damages.

"I am concerned about punitive damages because they are my sword," said Norwood Wilner, an attorney who won one of the first verdicts against a tobacco company in 1996. "I am weak against the industry and I need all the swords I can get."

Wilner was one of more than 100 lawyers and legal scholars who gathered at the Law School for one of the first serious looks by the academic world at the proposed settlement.

Harvard Professor of Law Jon Hanson, who organized the conference, said it was important that a school as well-respected as Harvard host the conference, because it attracted attorneys from all sides of the debate.

"I don't know of any other setting where the industry has sent its lawyers to speak openly about their views," Hanson said.

The proposed settlement, negotiated earlier this year and currently being considered by Congress, may have problems besides its tinkering with legal rights. The proposal could violate the U.S. Constitution's 10th amendment guarantees of state powers by forcing states to end tobacco-related lawsuits even if they disagree with the settlement.

ÒThere is a serious question whether the federal government can say to one of its sovereign states, 'You have had your lawsuit settled out from under you because we think it's in your best interest,' Ó said Alan Morrison of the Public Citizen Litigation Group, who has worked on a variety of tobacco-related cases.

Supporters of the proposal, however, say lawsuits over the past few decades have garnered little, if any, money for plaintiffs suing tobacco companies. So giving away some legal rights would be a small price to pay for real relief for the thousands of people suffering from smoking-related diseases.

The agreement also aims to reduce the number of smokers. It would ban advertising and fund anti-smoking education campaigns in an effort to convince smokers to quit and to stop people -- particularly children -- from deciding to smoke in the first place.

"I think the settlement has to be compared to the real world, the status quo," said Thomas Green, first assistant attorney general of Massachusetts, one of the states involved in the settlement talks. "The [court] system has yet to produce a dime and is not quick."

Backers of the plan insist it would not restrict the right to bring new suits, though it would ban awarding punitive damages. It would also prohibit consolidating lawsuits and have a federal panel instead decide which tobacco industry documents could be made public.

The tobacco industry would pay the settlement's $368.5 billion over the next 25 years. The money would go to settle lawsuits by victims of smoking-related illnesses, reimburse state treasuries for dollars spent on smoking-related health care, and pay for the anti-smoking education campaign.

The settlement aims to cut smoking among teens with a wide range of restrictions on advertising and marketing. Among the measures are a ban on advertising with cartoons or characters with human likenesses -- such as Joe Camel and the Marlboro Man. It would also prohibit all outdoor advertising and ban cigarette vending machines.

Cigarette warning labels would cover 25 percent of the front of the pack and have harsh messages such as "Smoking can kill you," "Cigarettes are addictive" and, for smokeless tobacco products like chewing tobacco, "This product can cause mouth cancer."

Hanson said he believes the agreement must be altered to minimize tinkering with courtsÕ rights. But even if those rights weren't touched in the agreement, he believes the regulatory system set up to oversee the changes is all wrong.

Hanson said the system envisioned by the settlement relies too heavily on regulators policing the industry for compliance. That kind of a setup doesn't alter the free market's incentive to make products as cheaply as possible, punishing those who invest in research for a healthier cigarette. Instead, he said, Congress should require the industry to pay the societal costs of its products, as much as $7 per pack. That would create an incentive for the industry to find ways to make its products less destructive.

"Absent regulation, the market acts as an enemy to public health," Hanson said.

Susan Koniak, an ethics professor at Boston University, said no amount of tinkering will fix what she called a "a payoff." She predicted the settlement, if passed, will lead to industry after industry offering huge sums of money to settle liability lawsuits and gain restrictions on future suits against them.

"I think this is an attempt by tobacco companies to buy legislation they feel is favorable to them," Koniak said. "This thing has got to stop. It has to be nipped in the bud immediately. They created a grotesquery and one thing in law is certain: if it's done once it'll be done again."

Attorneys for some of the tobacco companies involved defended the agreement, saying the legal changes don't give the tobacco industry special treatment, instead they counterbalance recent court rulings that have stacked the deck against them.

"What we are doing here is restoring basic principles . . . not modifying them to benefit a single industry,'' said Meyer Koplow, a partner in the law firm of Wachtell, Lipton, Rosen & Katz and lead negotiator for Philip Morris. "I would be very surprised if this discourages suits."

When the daylong conference ended, participants weren't sure if their voices would be heard in Washington, D.C., where legislation to implement the settlement is under consideration. But with tobacco company attorneys exchanging views with state attorneys general, private lawyers, and legal scholars, they knew at least that those they might meet in the courtroom heard them.