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Tobacco politics, Maryland style
The Washington Times
Fri, Apr 17 1998
When $3 billion to $4 billion is up for grabs, and the booty is
held by villainous tobacco companies, the rule of law is out the
window.
That's the situation in Maryland, where Democratic Attorney
General J. Joseph Curran Jr., backed enthusiastically by Gov.
Parris N. Glendening, greased the wheels of justice in order to
fleece the industry and replenish the state's depleted Medicaid
coffers. On April 13, just eight hours prior to its midnight
adjournment, the General Assembly approved of Mr. Curran's
high-stakes extortion. Marylanders ought to be apoplectic.
Last year Baltimore Circuit Court Judge Roger Brown got it
exactly right when he dismissed the bulk of the state's lawsuit
against big tobacco. Judge Brown held that Maryland has no direct
claim against the industry; the state can sue for Medicaid
reimbursement only by stepping into the shoes of each injured
smoker and proving tobacco caused the injury. In that manner, the
court would be able to determine if the smoker was aware of the
risks, if his own behavior was a contributing factor and if
cigarettes actually caused his health problems.
When Mr. Curran learned that his multi-billion-dollar
litigation had gone up in smoke, he began searching for ways to
rewrite the state's Medicaid reimbursement law. He found the
answer: a new law that prevents the industry from defending itself.
Tobacco companies will no longer be able to argue that smokers are
responsible for their own behavior or contribute to their injury.
Those defenses will still be available against a smoker who pays
his medical bills, but not against a smoker on the public dole.
The same tobacco company selling the same product resulting in the
same injury will - for some unexplained reason - be subject to a
different set of rules. By legislative fiat, liability will hinge
on the smoker's Medicaid status - a mere happenstance totally
unrelated to any misconduct by the industry.
And for good measure, the new law will be retroactive. It will
apply to claims covering cigarettes sold decades ago. In effect,
Mr. Curran and his minions in the legislature are instructing the
judiciary how a court case already under way should be resolved -
an unprecedented erosion of the separation of powers doctrine and
an unconscionable abridgment of due process.
The next round of litigation will hinge on a freshly minted
cause of action created out of whole cloth by a state filling the
dual and conflicting roles of lawmaker and plaintiff. To rewrite
the rules so money can be siphoned from a friendless industry
offends settled principles of both law and justice, and it
reaffirms that Maryland has one of the nation's most hostile
business climates.
It gets worse. To head off any possibility of an adverse
outcome in court, the state won't even have to prove that a
smoker's illness was caused by smoking. Instead, Maryland need
only produce aggregate statistics showing certain injuries are more
widespread among smokers than nonsmokers. You would think the
industry could at least investigate whether claimed illnesses were
real or fraudulent, serious or trivial - or whether the patient
ever smoked. Wrong. Incredibly, the new law provides Maryland is
not required to name a single Medicaid recipient, or furnish any
corroborating evidence - just statistics. That such a shameless
provision was ever drafted speaks volumes about the attorney
general's aims and his regard for the rule of law.
By the way, the state's lawyer in the tobacco suit, Baltimore
Orioles owner Peter Angelos, originally stood to collect 25 percent
of a $3 billion to $4 billion verdict. Perceiving that voters
might view a billion dollar payoff as scandalous, the Generally
Assembly reduced Mr. Angelos' fee to 12.5 percent - a skimpy
half-billion dollars. Mr. Angelos was not a happy camper; he
threatened to pull out of the deal at the last minute because of a
provision in the bill that allows a judge to review the final fee.
Mr. Curran, steadfast as ever, somehow persuaded Mr. Angelos to
settle the fee dispute later - probably in another lawsuit, this
one against the state. Perhaps Mr. Angelos was temporarily
pacified on discovering that an attorney with a contingency
contract ordinarily gets nothing when his case is thrown out of
court. Then again, Mr. Angelos has demonstrated that he's no
ordinary lawyer. What other Maryland lawyer has the political
clout to have a dismissed case reinstated under revised rules that
guarantee victory.
For now, the governor and attorney general are only going after
the tobacco industry. But it won't stop there. Our moral
overseers will attack any product they deem to be bad for us.
Obesity, which causes 300,000 deaths each year from heart attacks
and strokes, could be the next victim. Then there's alcohol,
coffee, motorcycles, sporting equipment; the list is endless. When
we socialize the provision of a service like medical care, we
should not be surprised that we become a nation of meddlers, with
each of us concerned about the diet, exercise, recreation and
lifestyle of others.
That possibility cannot not be taken lightly. The hallmark of
a free nation is that it safeguards the rights of its least popular
citizens. When it comes to tobacco, Maryland's political leaders
were put to the test, and they failed miserably. This outrageous,
retroactive law will indeed tap the deep pockets of a pariah
defendant. But in the process, Marylanders will have bequeathed to
their children a message even more pernicious than cigarettes:
First, you may change the rules after the game has begun. Second,
you can engage in risky behavior, then force someone else to pay
the bills.
Robert A. Levy is senior fellow in constitutional studies at
the Cato Institute
(Copyright 1998)
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