Smoke, mirrors and death in a question of class action (fwd)

[Robert Weissman <rob@essential.org>]

Smoke, mirrors and death in a question of class action

by Malcolm Brown
Source: Sydney Morning Herald, Friday, 9/3/99

Thousands of Australians are ready to sue tobacco companies over the toll
their addiction has taken on their health. But it's too late for one man,
Malcolm Brown reports.

GREG Durkin, lead claimant in a proposed class action by Australian
smokers against tobacco companies, gave videotaped evidence at a bedside
hearing at Westmead Hospital last week. He was so gravely ill with lung
cancer it was obvious his days were numbered.

Durkin died last weekend, before he could carry through the class action
with five other claimants or know whether it would survive legal moves by
the tobacco companies to stop it going to court.

Federal Court Justice Murray Wilcox, who last month dismissed an
application by the tobacco companies to have the proposed class action
struck out, was aware of the urgency of Durkin's situation. He ordered
evidence be taken and held for possible later presentation.

Another claimant, Michael Christopher Nixon, seriously ill in Melbourne,
was in a similar situation. On Tuesday, when Durkin's death was announced
in the Federal Court, the tobacco companies were ready with criticisms of
his status as a claimant.

Jeff Sher, QC, for Philip Morris Ltd, cast doubt on whether Durkin fitted
the class action, restricted to people whose medical condition - which
they claim to be smoking-related - was diagnosed between April 16, 1996
and April 16 this year. Durkin, 51, of Shalvey in the western suburbs, was
diagnosed in October last year.

But he had not smoked for five years and, as Sher pointed out, had given
up "cold turkey"; from the tobacco company's point of view that militates
against the addiction claim.

Opposing the class action are Philip Morris, British and American Tobacco
(Austra-

lasia) Ltd (a recent merger between Rothmans of Pall Mall Australia Ltd
and WD&HO Wills Pty Ltd), and an entity called WD&HO Wills that has been
preserved for the purposes of the present legal proceedings.

The companies have applied for a hearing before the Full Bench of the
Federal Court to appeal against Justice Wilcox's decision not to strike
out the application for a class action.

The companies are arguing that while individuals claiming they have
smoking-related conditions can take individual civil actions, a class
action is not the appropriate way of proceeding.

Philip Morris has said recent United States court decisions that have gone
against tobacco companies should be seen in perspective.

In Washington in July a Superior Court judge ruled out class-action status
in a smoking and health case on the grounds that there were too many
complexities and individual differences. Lifestyle, general health, and
how much and what an individual smoked were significant factors.

"The current trend in US court decisions is that these [smoking and
health] cases should not be treated as class actions," says the corporate
relations manager for Philip Morris, Nerida White.

But the anti-smoking lobby looks askance at such moves. It believes they
are merely a result of the tobacco industry using its enormous financial
resources to defend itself against claims that companies have engaged in
misleading and deceptive conduct over decades, and have encouraged people
to take up a highly addictive habit. The chief executive officer of Action
on Smoking and Health (ASH), Anne Jones, says tobacco companies have gone
global and prepared for ever-expanding markets.

In Australia her organisation hopes to reduce smoking to 15 per cent of
the population by 2005. But the multinational tobacco companies, seeking a
30 per cent increase in consumption of their products, are looking for new
smokers in the Pacific Islands and the Third World.

If the lawsuit proceeds, the most likely date is June 13 next year. If
successful, it will clear the way for thousands of Australians to join
further class actions. Slater and Gordon, representing claimants, has
about 2,500 people on its books who fit into the three-year diagnosis
period.

One of those is Bill Ryan, 51, a retired plumber of Stanmore. He took
special note of last Thursday, August 26. It was the third anniversary of
the dreadful day when he went to his doctor complaining of back ache and
discovered that one of his lungs was riddled with cancer.

Ryan, who had the lung removed on December 12, 1996, changing his life
forever, says he had no inkling when he began smoking after leaving school
that it was a dangerous habit. "None at all, none whatsoever," he says.
"You felt a bit out of place if you didn't smoke. I ended up smoking 1 1/2
packets a day and, if I had a drink, two packets.

"You see the tobacco ads and you think it is all right. It is the most
addictive thing, really. I will certainly be watching what happens with
these court cases."