Now that the tobacco industry is bloodied and bowed, having capitulated to a historic $368.5 billion legal settlement with the states, it is easy to forget that just a few years ago Big Tobacco was considered nearly invincible as a courtroom adversary.
That's why when Mississippi Attorney General Mike Moore became the first to sue cigarette makers with a novel and untested legal strategy, his fellow attorneys general initially were cool to the idea. At home, state legislators warned Moore not to waste taxpayers' money on what they considered to be a suicide mission. Republican Governor Kirk Fordice went so far as to actually file a lawsuit against Moore, a Democrat.
Today, few fault Moore for overreaching. Mississippi is a staggering $3.67 billion richer for his efforts, and the 39 other states that would later join his quixotic campaign stand to receive similar windfalls. And according to the terms of a national settlement, now stalled in Congress, cigarette makers not only would reimburse states for Medicaid expenditures for victims of smoking-related illnesses but also would pay for public health initiatives and smoking-cessation campaigns. In addition, the settlement calls for tough industry regulation and an end to advertisements that glamorize smoking.
When Moore first laid out his giant-killing strategy back in 1994, his chances of winning seemed about as likely as finding a cigarette vending machine in the American Lung Association cafeteria. For decades, the tobacco industry had consistently fended off claims by arguing that smokers alone were responsible for their actions. Juries tended to agree.
Moore came up with an end-run around that defense. The attorney general — and the outside attorneys who worked for the state on a contingency-fee basis — figured that if the issue of personal responsibility could be removed from the equation, then the cigarette manufacturers might be vulnerable. So the state argued that the tobacco industry had been unjustly enriched by the state's assumption of costs for tobacco-related diseases and illnesses. In other words, Mississippi sued to recover Medicaid dollars spent on smoking-related health care costs.
Not everyone agreed with Moore's unproven legal theory. His colleagues in several other states worried that Moore's tactic would set a dangerous precedent for use against other industries. Other critics argued that cigarette smoking is not a drain on the state treasury because excise taxes on tobacco already cover the health care costs incurred by smokers.
No one outside the tobacco industry objected more strenuously than Fordice, who unsuccessfully charged that Moore — a potential gubernatorial candidate in 1999 — had exceeded the scope of his office.
Moore, a former prosecutor who makes no secret of his political ambitions, insists that the issue is far bigger than either Fordice or himself — bigger even than his crusade against the Ku Klux Klan, the other major preoccupation of his years in office. "I've felt this is probably the most important thing I could do as a lawyer, and I know it is the most important public health litigation ever in history," he said, even before the national settlement was reached. "It has the potential to save more lives than anything that's ever been done."
The suit has also altered the way state attorneys general do their jobs. Having served notice on the tobacco industry of the power of collective action, Moore and his counterparts are now poised to expand their purview into other realms beyond traditional consumer protection efforts.
But for now, in Mississippi at least, no one is thinking about Moore's next legal fight: They are trying to decide how to spend the first $170 million installment from the tobacco settlement.
Photo by Bill Jackson/Gil Ford