Bolivia, Brazoria County (Texas) and Philip Morris

Commentary by Pete du Pont
What do Bolivia, Brazoria County, Texas, and Philip Morris have in common? A tobacco liability lawsuit, of course.

First, some background. Remember the Clinton health care fiasco that captured the national agenda from 1993 to 1994? Then-presidential candidate Bill Clinton decided to make health care reform a campaign theme in 1992 because Democratic Sen. Harris Wofford made it a theme in his successful 1991 bid to win a Pennsylvania senate seat. If health care reform could win for Democrats at the state level, maybe it could win at the national level also.

In like fashion, six foreign countries, having jealously watched a handful of trial lawyers win some $206 billion for the states -- and a ton of money for the lawyers -- by suing the tobacco companies, have decided to jump on the tobacco wagon. Guatemala, Panama, Nicaragua, Thailand, Venezuela and Bolivia are filing suit against Philip Morris, the largest tobacco company, to recover some of the health care costs spent on indigent people in their countries.

And to ensure that their cases will get the legal due process they need and deserve, these countries are filing their suits in Brazoria County, Texas.

That's right, Brazoria County, that Mecca of international law. The suit eventually ended up in front of U.S. District Judge Samuel B. Kent of Galveston, who was a little puzzled by the action.

"[G]iven the tremendous number of United States jurisdictions encompassing fascinating and exotic places, the Court can hardly imagine why the Republic of Bolivia elected to file suit in the veritable hinterlands of Brazoria County, Texas. The Court seriously doubts whether Brazoria County has ever seen a live Bolivian . . . even on the Discovery Channel," Judge Kent writes.

That's not to say that Judge Kent doesn't appreciate the consideration. "[T]his humble Court by the sea is certainly flattered by what must be the worldwide renown of rural Texas courts for dispensing justice with unparalleled fairness and alacrity, apparently in common discussion even on the mountain peaks of Bolivia."

But accepting the case would be inappropriate, the judge suggested. Courts in Washington, D.C., are much more experienced in handling such cases. Moreover, Bolivia has an embassy there, "whereas there ain't even a Bolivian restaurant anywhere near here!"

Finally, a lawsuit between Bolivia and Philip Morris is simply not in the court's jurisdiction. Judge Kent writes, "even though the words Bolivia and Brazoria are a lot alike, and caused some real initial confusion until the Court conferred with its law clerks," he came to conclude that "it is readily apparent, even from an outdated globe such as that possessed by this Court, that Bolivia, a hemisphere away, ain't in south-central Texas."

Why would the countries filing suit do so in the United States rather than their own country? One reason, according to Amy Ridenour of the National Center for Public Policy Research, is that many Latin America countries have "loser pays" rules. That is, if a plaintiff files a lawsuit and loses the case, the plaintiff pays the costs. Loser pays rules tend to discourage frivolous lawsuits, which is why many people think we should have such laws here in the U.S. also.

Since we don't have such laws, it costs another country relatively little to sue in U.S. courts. Thus, if the plaintiff country can secure a sympathetic jury, the cost-benefit ratio of suing Philip Morris becomes favorable.

But would an American jury be sympathetic to the plight of these countries' attempt to sue the tobacco companies? Would a jury, considering Thailand's and the Latin American countries' rather spotty record on public health issues, be convinced that American tobacco companies had somehow caused these countries' public health problems? It's doubtful. American juries haven't been terribly sympathetic even to Americans who have filed suit against the tobacco companies. However, it's not clear that the countries filing suit expect their case to go to trial. More likely, they are hoping the tobacco companies -or perhaps Philip Morris - may settle out of court.

Unfortunately, these suits tell us more about the state of the American legal system than the plaintiffs' public health concerns. In this country you can use the legal system to harass and intimidate -- in hopes that the defendant will cough up some money.

So the Bolivians will pursue their cause, but they will have to do it in the nation's capital, where such clear and articulate reasoning as that displayed by Judge Kent is in shorter supply. That's a shame, because I think Judge Kent might be just the right person to handle these lawsuits.

The National Center for Policy Analysis is a public policy research institute founded in 1983 and internationally known for its studies on public policy issues.

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