SAN FRANCISCO — According to the tobacco industry, sick or dead smokers in California cannot sue cigarette manufacturers for any smoking-related injuries sustained before 1998.
The industry made that argument Tuesday to the California Supreme Court. The court’s seven justices, during two hours of argument, seesawed on whether the industry’s interpretation of vague legislation was correct.
The outcome of the dispute could certify California as the nation’s most tobacco- friendly state. Or it could place the Golden State in line with the rest of the nation’s states, which allow the sick and the estates of the dead to sue the companies for smoking injuries.
A Morgan Stanley industry research paper released Monday said if the industry were to “suffer a complete loss” before the high court, “manufacturers would technically be no worse off in California than they are in any other state.”
The report, however, added that a loss could result in a larger caseload against the industry and perhaps expose it to “liberal” juries of San Francisco and Los Angeles, where panels have already awarded millions of damages against the industry.
Those awards are on hold pending the outcome of Tuesday’s arguments. A decision is expected within 90 days.
California’s highly convoluted tobacco dispute begins with a 1988 state law, pushed by the industry, that immunized cigarette manufacturers from suits by smokers. But a decade later, California lawmakers changed the law, citing evidence alleging that the tobacco industry made cigarettes more addictive and that it marketed to youth.
At issue is whether the 1998 change was retroactive to allow smokers to sue for injuries sustained during the 10-year period between 1988 and 1998. Also in dispute is whether that 1988 law banning suits altogether applied retroactively to all times before 1988.
“It’s unfair to change the rules after the game has been played,” argued Joseph Escher III, a lawyer for R.J. Reynolds Tobacco Holdings Inc. The attorney for the maker of Camels argued that, since the new laws were so vague, the companies must be immune for all injuries before 1998.
But the justices were unsure.
Justice Kathryn Mickle Werdegar said smoking illnesses normally take decades to manifest. Under the industry’s interpretation, lawsuits couldn’t be filed for years after 1998, she said.
“How can this statute be effective?” she asked. “You have to wait 20 years to pass to sue?”
Justice Marvin Baxter suggested it may be unfair, or “fundamentally wrong” to allow suits to proceed against the industry for a time period when the government said they were immune.
Attorney Madelyn Chaber, who represents a dead Santa Clara smoker whose estate is seeking the right to sue, told the justices that the 1998 law said smokers could sue for damages for any time period. The legislation, she said, was “to right that wrong.”
Other justices suggested that smokers might be able to sue for injuries sustained at any time except for the 10-year period between 1988 and 1998.