Korean lawyers planning strategies for tobacco war (fwd)

[Robert Weissman <rob@essential.org>]

Korean lawyers planning strategies for tobacco war
SOUTH KOREA;
Source: Korea Herald, Thursday, 10/7/99

There were times when smoking was looked upon as a simple pleasure.
    
But those times are over.
    
People are now raising increasingly serious questions about the health
risks of tobacco use, particularly to women and adolescents, among whom
growing numbers are choosing to smoke.
    
At the same time, society is starting to give greater weight to health
advocates' demands for protection from the harmful effects of second-hand
smoke than to smokers' rights to enjoy their favorite pastime.
    
Smoking has consequently been prohibited in most public places in the
nation, including means of mass transport, like buses, subways and
airlines.
    
However, the anti-smoking crusade did not stop there. Last month, a
56-year-old man suffering from terminal lung cancer filed a lawsuit
against the state and the state-run Korea Tobacco and Ginseng Corp.
(KTGC), demanding 100 million won in compensation for his illness. This is
the first time such charges have been brought before a Korean court.
    
The plaintiff in the case, identified only as Kim, claimed that he could
not find any causes for his cancer other than his 36 years of smoking.
    
Now experts expect a wave of similar litigation to follow in the future.
    
One suit will be filed by the Korean Association of Smoking and Health
(KASH), the nation's best-known anti-smoking organization, before the end
of the year. The group is planning to sue the state and the state-run
tobacco corporation on behalf of 10 or so sick smokers in cooperation with
lawyers' organizations and other civic groups.
    
Amid the movement, major questions remain over which legal weapons lawyers
can use to win the battles and how to prove in court that smoking causes
cancer and other fatal illnesses?

In a bid to find answers to these questions, a seminar was held in Seoul
last week entitled "Legal and Medical Logic For Tobacco Lawsuits,"
sponsored by the KASH and Lawyers for a Democratic Society, a lawyers'
group devoted to providing legal services for the public good.
    
Participants of the meeting - many of them doctors and lawyers -
criticized the government for taking the lead in selling the harmful
product to its people without sufficiently informing them of its dangers.
    
They then agreed that various theories developed for tobacco lawsuits in
foreign countries, such as the United States, should be called on in
Korea, where the judicial precedents just don't exist.
    
Lawyer Bae Keum-ja, who studied tobacco lawsuit theories at Harvard
University, made a presentation about U.S. tobacco lawsuits. She said that
the first U.S. tobacco lawsuit, "Lowe v. R.J. Reynolds Tobacco Co.," was
filed in 1954, but plaintiffs didn't win a case against tobacco companies
until 40 years later in 1994.
    
"From 1954 to 1969, the accused tobacco manufacturers successfully
defended themselves by saying they did not know that smoking could cause
cancer," Bae said. "Then, from 1970 to 1992, the period after 1969 when
U.S. cigarette packs began to carry the warning 'Cigarette smoking is
dangerous to your health,' they blamed smokers for choosing the risk
knowingly."
    
But things changed in 1994 when a tobacco maker's secret documents were
unveiled to the public.
    
The documents exposed that cigarette companies had known since the 1960s
that their products were carcinogenic and highly addictive. But they
conspired to hide the dangers and worked to make a more addictive product,
despite their knowledge that it could cause deadly illnesses ranging from
heart disease and chronic bronchitis to lung cancer.
    
"The revelation offered the most powerful weapon ever for shedding light
on the decades-old industry collusion to defraud consumers," she said.
    
Since then, a variety of innovative legal arguments to fight tobacco
companies in court were developed in the United States, such as fraud,
conspiracy, product liability and violation of consumer protection law.
    
Bae said that some of the arguments could be invoked for Korean lawsuits.
    
"For example, the government and the KTGC could be accused of unjust
profiteering and consumer fraud," she said. "The two neglected their duty
to protect and promote public health by selling a harmful product,
mass-producing addicts and making large profits on them. They engaged in
consumer fraud by giving insufficient warnings about the risk of cigarette
smoking."
    
The lawyer explained that, in Korea, cigarette packs began to carry a
health message in 1976. But she said the phrase, "Let's refrain from
smoking for health," could hardly be seen as a warning. It was only in
1989, she said, when real tobacco warnings appeared in the nation, which
stated that "smoking may cause lung cancer and is bad for your health,
particularly for women and adolescents."
    
"Besides, many smoking men say that they picked up the habit while serving
military duty. The government could be held responsible for promoting
smoking by handing out free cigarettes to soldiers in the army," she said.
    
Prof. Yeun Kee-young, dean of Dongguk University's law college, also said
the probability is high that smokers would win tobacco lawsuits and be
compensated under the nation's civil laws, which recognize the
responsibility of manufacturers for their products.
    
"Tobacco is a fatally defective product which poses the danger of ruining
your health. The smoking damage and its addictiveness is beyond the level
that consumers can handle," he said. "So if the tobacco company is found
to have damaged smokers' health with its defective product, it could be
held responsible under the Civil Code No. 750."
    
Prof. Yeun noted that smoking victims could take foreign tobacco
manufacturers and Korean importers to court, too. Foreign-made cigarettes
began to be brought into the country from 1988.
    
He said that health insurance organizations could file a lawsuit against
the state and the tobacco corporation to recoup the enormous medical
expenses they had paid to treat patients of smoking-related diseases.
    
Lawyers said that once the cases were taken to court, the key issue would
be how to prove medically that cigarettes caused cancer or other illnesses
among smokers.
    
Concerning this, Prof. Meng Kwang-ho of the Catholic University's medical
college explained that enough research papers have been published that do
more than disclose close links between smoking and cancer, particularly
lung cancer, but that it is not easy to prove the link in an individual's
case. He said that most medical research has been conducted by comparing
groups, not individuals.
    
"It is widely known that cigarette smoke contains about 4,000 different
kinds of poisonous chemicals and at least 40 of them are carcinogenic. And
the probability of smokers getting cancer reaches about 90 percent," Meng
said. "So you can say that smoking is a leading cause for cancer. But it
does not mean that all smoking cancer patients could win tobacco lawsuits.
There are so many other causes for the disease, such as vitamin A
deficiency, living in severely polluted areas and having jobs that involve
cancer-causing materials."
    
However, Meng said that ways still exist to prove the connection in court
through such means as inference based on medical research results up to
now, if lawyers represent lung cancer patients who meet no other
conditions that can be blamed for their illness except smoking.
    
According to anti-smoking organizations, smoking-related health problems
are enormously common in Korea, where 68.2 percent of Korean men aged 15
and over smoke. It has the world's highest smoking rate.
    
The groups say that about 35,000 people die of smoking-related diseases
each year, accounting for 6 trillion won in economic losses. Besides, the
age when adolescents start lighting up is getting increasingly younger,
and more and more women are joining the smoking ranks.
    
Meng warned that people who began smoking before 15 are 18.7 times more
likely to die of lung cancer than nonsmokers and nonsmoking wives of
smokers are more than twice as likely as those of nonsmokers.
    
He predicted that, since Koreans began to smoke cigarettes in the 1950s
and lung cancers patients began to increase sharply from the 1980s after a
several-decade-long latent period, the nation would see an unprecedented
number of smoking-related deaths in the coming decades.
    
"But as was shown by the fact that the first tobacco lawsuit was just now
filed in Korea, 45 years later than in the United States, the Korean
public's tolerance of smokers and their sentiment of blaming smokers
rather than tobacco manufacturers remains an obstacle," lawyer Bae said.
    
In fact, according to a study conducted by a civic group on 879 Seoul
citizens last month, seven out of 10 people think that the blame for
smoking damage belongs to smokers, not the government or tobacco
companies.
    
So, Bae contended, along with tobacco lawsuits, the nation should launch a
campaign to get the public perception right.
    
"It's going to be a long and tough battle. But I believe if (citizens,
legal and medical experts and the mass media) join hands, we can win it
and the reward would be big: saving a lot of innocent lives in the
future," she said.
    

Updated: 10/07/1999 by Shin Hye-son Staff reporter