States Jump for Spoils Of Big Tobacco Suits

Pennsylvania has joined 23 other states in seeking cash and limits on cigarette ads.

It's suddenly open season on the tobacco companies. States that haven't sued the cigarette firms are now scampering to the courts.

The rush is on for three reasons:

* States are concerned that Congress may block future lawsuits as a part of a deal that emerges from landmark ongoing talks between tobacco firms and their adversaries.

* Many states want to be a part of any deal that's struck at the talks. The price of admission is to have a lawsuit against the tobacco firms.

* An increasing number of attorneys general believe they could win the lawsuits if they go to trial because of new damaging materials received from a March 1996 settlement with the Liggett Group Inc.

"My advice is to get in now," says Richard Daynard, who runs the Tobacco Control Resource Center, which is associated with Northeastern's School of Law. "More likely than not you won't get as good a deal if you are not included."

At stake is mega billions in settlement fees, a dramatically lower profile of cigarette ads, and the setting up of educational funds to try to convince people not to smoke.

In return, tobacco firms are expecting immunity from prosecution - though the scope of that immunity is one of the major sticking points at the talks. The attorneys general already at the talks say they won't give "blanket" immunity - which would protect the firms from future suits. Instead, they are likely to offer some form of limited immunity.

In return the states want their costs reimbursed for treating smoking-related illness, tougher warnings about tobacco, and marketing changes to protect children.

On Wednesday, Pennsylvania joined the other 23 states now suing the tobacco companies, and Missouri says it is planning to sue. This leaves 25 states that haven't announced their plans. The most notable is California, which may still join in.

There are now three bills in the California legislature to repeal a 1987 law that prohibited lawsuits against the tobacco industry for personal injury or illness lawsuits. "If the barriers are removed, we would be likely to sue," says Rob Stutzman, spokesman for Attorney General Daniel Lungren.

However, a few states still aren't sure it's worth it. In Vermont, the attorney general's office has been studying the issue for some time. "We're looking at all the options," says Julie Brill, an assistant AG.

Ohio Attorney General Betty Montgomery, citing the cost, ruled out a suit last year unless "circumstances change." But news of settlement talks "intensified our review," says Mark Weaver, deputy AG.

Missouri Attorney General Jeremiah (Jay) Nixon also intends to bring a suit. "If Congress is to consider a massive settlement it is important for Missouri to be on file in order to receive our fair share of any future settlements," he says.

In Pennsylvania, Attorney General Mike Fisher says there will be no settlement unless the state is adequately compensated and all the state's issues are on the table.

In most of the lawsuits, the main issue is reimbursement for medical expenses to treat smokers. But Pennsylvania also wants to prevent the tobacco firms from marketing their products to children. As part of the suit, it's asking the industry to fund an educational component such as an advertising campaign aimed at underage smokers.

The Pennsylvania suit also illustrates the problems the states are likely to have in reaching an out of court settlement with the companies.

Fisher is asking for $1 billion for past medical expenses. This is one of the largest claims. But the tobacco companies want to pay states for future claims. Fisher doesn't buy this concept. "You don't know what they are; it's impossible to calculate the damages," he says. He says Pennsylvania will be ready to try its case in a year in Philadelphia.

STATES TO WATCH IN TOBACCO WAR

* Mississippi: Attorney General Michael Moore has led the national fight against tobacco. In July, his state will be the first to go to trial.

* Pennsylvania: In filing suit this week, the state wants to not only recoup Medicare costs for treating smokers, but also to skewer the industry, which it says broke the law by marketing to minors.

* California: Bills are speeding through the legislature to repeal a 1987 law that bars the state from suing tobacco firms. If they pass - they're likely to - and California begins suing, it could be among the biggest of the state suits.