Monday, October 26, 2009

Successful Lawsuit against a Cigarette Co.

Cigarette manufacturers are very powerful in Indonesia!
This can be seen from the advertisements spaces on the media and open-air sign boards that are dominated by cigarette manufacturers.

Efforts made by Anti-Cigarette activists, including filing lawsuit against those manufacturers, often ended in vain. Maybe the main reason is because those manufacturers contributed a large sum of money for our country's income.

Recently, I read on Legal Blog Watch about a successful lawsuit filed by a Cigarette Smoker against cigarette manufacturer Philip-Morris at the District Court of Boston, Massachusetts, U.S.A. Note: this company is majority owner of Indonesian cigarette manufacturer PT HM Sampoerna.

Although the verdict of the Supreme Judicial Court of Massachusetts may not be applicable in Indonesia, but it can at least be used as reference for similar lawsuit here.

Please find below the said blog post for your kind perusal.

'Healthy' Smokers Win Landmark Tobacco Ruling

The Supreme Judicial Court of Massachusetts ruled today that cigarette smokers who have suffered no apparent injuries to their health may nonetheless bring a lawsuit to force tobacco makers to pay for medical monitoring to scan for cancer that may develop in the future. The case, Donovan v. Philip Morris USA, was decided based on questions certified to the court from the U.S. District Court in Boston. In an opinion authored by Justice Francis X. Spina, the unanimous SJC said the smokers should have their day in court.

Our tort law developed in the late Nineteenth and early Twentieth centuries, when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces. We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent. ...

When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort. ...

Medical expenses are recoverable not only for direct treatment and diagnosis of a present injury or an injury likely to occur, but for diagnostic tests needed to monitor medically a person who has been substantially exposed to a toxic substance that has created physiological changes indicating a substantial increase in risk that the person will contract a serious illness or disease. The expense of medical monitoring is thus a form of future medical expense and should be treated as such.

The plaintiffs in the case are asking the federal district court to certify the lawsuit as a class action. They purport to represent a class of Massachusetts residents aged 50 and older who smoked Marlboro cigarettes for at least 20 years and who have not been diagnosed with or suspected of having lung cancer. Philip Morris sought to have the case dismissed in the District Court on the grounds that a tort plaintiff must be able to prove an existing physical injury in order to recover damages.That was the question the federal court asked the SJC to decide.

The SJC also ruled that the plaintiffs claims are not blocked by the statute of limitations. Because the technology was only recently developed that would allow the medical monitoring they seek in their complaint, the discovery rule would apply, the SJC said.

Posted by Robert J. Ambrogi on October 19, 2009 at 02:33 PM

6 comments:

willowandwattle said...

I guess the only thing that annoys me about these law suits, is the lack of responsibility that people in these cases take for thier own actions. Cigarettes here bring in some money too in taxes among other things that the government gladly collects, and its been debated, the only reason smoking (if its so bad) hasn't been banned.

I am an ex smoker myself, and I am quite well aware that smoking could cause X X and X, as most people are.

There is a recurring theme in the US, which probably doesn't wash in Indonesia, is 'its not your fault' everyone always wants to blame someone else. Of course, there are times when it really is someone elses fault, but that consists of common sense and obvious situations that should result in torts and claims.

Duckham said...

For all the millions spent on warnings and the social stigma that is associated with smoking in Britain, for six years before retirement I was mostly in the UK and young people all seemed to smoke; especially girls.

Joni Arief said...

Harry,

It's about time that those tobacco people take responsibility for all the bad effect that they have caused to the health of tens millions of people around the world.

H. Nizam said...

@Willowandwattle,
I agree that smoking is a choice people take. If they smoke they have to take the risk. If they don't want the risk, they should not smoke.
But considering smoking cigarette not only effects the smoker, but also other people i.e. adding more air pollution to the already worst situation caused by factories, cars etc. therefore cigarette smoking should be limited: age, place, time. Considering that conventional protests seems to be not effective, legal actions is an alternative.

@Duckham,
In Jakarta people from all ages and sexes smoke almost freely even in public places.

@Joni,
You are right, it's about time.

Sy said...

I have to say that I'm usually for the people but in this case I agree that people should take more responsibility, it's not as if the tobacco companies forced it in their mouths.But on another note tobacco companies should more actively explain the risks

Edwin's Personal Blog said...

Cigarette manufacturers have sure thing been 'invaluable' counterparts for local governments of provinces in Indonesia, for their mutual relationship. Taxes and incomes are the good deal at best for investing facilities in return.