Europe takes on tobacco

Even as they continue to fight off lawsuits at home, US tobacco firms are coming under attack on a new front: Europe.

Across the Continent, from Finland to Spain, smokers inspired by court cases in America are launching groundbreaking litigation against tobacco companies, claiming damages for the harm that they say cigarettes did to their health. While only a handful of cases have yet come to court, the first successful action could trigger a snowball effect, tobacco executives and antismoking activists agree. "If I win, the tobacco companies will be in a horrible tunnel," warns Francis Caballero, the lawyer who has brought the first such suit in France on behalf of a former smoker's widow.

"It will open the door" to similar suits, says Aneta Lazarevic, spokeswoman for Seita, the French cigarette company that is the defendant in the case. And waiting in the wings are European health-insurance companies and public- health boards, already toting up the huge costs of treating smoking-related illness and planning to reclaim that money from big tobacco.

These new legal challenges only add to tobacco companies' difficulties in Europe. Cigarette consumption has been dropping steadily throughout the Continent, with nearly 10 percent fewer Europeans smoking than 10 years ago. And under stiff new European Union regulations, all tobacco advertising of any description, on billboards, in the press, or event sponsorship, will be banned by 2006.

European governments have been imposing controls on tobacco manufacturers for nearly 30 years. But it was the success that US state governments had last year, when they won $206 billion from the tobacco industry, that spurred European lawyers to take a similar tack. "Europe is by and large 10 to 15 years behind America, but it is taking exactly the same route," says Friedrich Wiebel, head of the Munich-based German Medical Action Group.

Some lawyers are taking more than inspiration from their American counterparts, they are taking advice. Hugh Ward, a partner in a Dublin, Ireland, law firm that has filed preliminary court documents on behalf of more than 50 cancer patients who are former smokers, this week invited attorneys who were involved in the US battles to a meeting in Dublin.

"Rather than reinvent the wheel, we will follow their example," Mr. Ward says. Others got the idea in a more roundabout way. Gustavo Cirac, a lawyer in Barcelona, Spain, was inspired by his victory in a case on behalf of a pig farmer who sued his local electricity company when 100 of his animals suffocated in their sties during an unannounced power cut.

"We won because the company did not warn the farmer of the power cut," Mr. Cirac says. "To my mind, it is exactly the same situation when a cigarette company does not warn smokers that they are selling them death." Health warnings were first printed on Spanish cigarette packs only in the 1980s, and still carry no notice of cigarettes' addictive properties.

Cirac's argument that tobacco firms did not warn consumers of the dangers of smoking is common to most of the suits currently under way in Europe, based on product-liability law.

Suits against Philip Morris, R.J. Reynolds, British American Tobacco (BAT), Rothmans, Seita, and other tobacco companies are currently under way or under preparation in France, Spain, Ireland, Germany, Finland, and Norway, among other countries.

"The defendants are the same, their lies are the same, the proceedings are alike," says Erkk Aurejarvi, a Finnish lawyer who has been fighting a case in the Helsinki courts against BAT and R.J. Reynolds for 11 years.

But significant differences in law and custom between Europe and the US make it harder for European smokers to seek redress from the tobacco industry. In Britain, for example, a plaintiff must pay the defendant's legal costs if he loses his suit. That deters most people from suing tobacco companies, whose costs would ruin any ordinary individual. In Germany, the rules governing discovery make it much harder than it is in America for plaintiffs' lawyers to get access to company documents.

In most European countries, meanwhile, class-action suits are not allowed. In many, the US system of "no-win-no-fee," where a lawyer takes on a case in the hope of collecting his pay from the proceeds of a damages claim, is also unknown.

At the same time, the damages generally awarded in European courts pale beside the tens of millions of dollars that American juries have given victims. The widow of Richard Gourlain, whose case in France will be judged in December, is claiming $500,000. In Helsinki, Professor Aurejarvi's client is asking for $100,000.

All these factors "make it less worth a lawyer's while to risk the time and the effort" that goes into such cases, points out Clive Bates, director of the London-based Action on Smoking and Health (ASH), an antismoking lobby group. The failure of a class-action suit in London last year, thrown out on procedural grounds, has also dulled British lawyers' enthusiasm.

"It is complicated, and it is expensive," says Mr. Caballero, who spent three years fighting Seita's procedural delays before finally getting Mr. Gourlain's case to court. "I am $40,000 out of pocket on this case."

Within a few weeks of the Gourlain judgment, rulings are expected in Finland and Germany on the similar cases before the courts there. The results will point the way for institutions that are thinking of following the example of the US state authorities. In France, a regional health-insurance institute has already filed an $8.5 million suit against Philip Morris, Rothmans, R.J. Reynolds, and Seita, seeking to recoup the costs of treating victims of smoking- related diseases.

That could lead to "a change in the climate," suggests ASH's Mr. Bates. "A successful action in France or Germany would build up the sense that there is a case to answer. We are constantly scanning the horizon in search of these developments."

(c) Copyright 1999. The Christian Science Publishing Society