"WRONGDOING" TOBACCO FIRMS ALLOWED TO EVADE LIABILITY, SAYS

admin's picture

MARSHALL ISLANDS GOVERNMENT

MAJURO, Marshall Islands (November 9, 2001 – The Marshall Islands Journal)---RMI government attorneys say that the High Court’s dismissal of their case against American tobacco companies "allows the wrongdoer to evade responsibility for what it did" by claiming that the RMI is uncertain about the total amount of the damages.

The RMI said this result "turns the established common law rule on its head." They cite a U.S. court ruling that states: "The defendant whose wrongful act gave rise to the injury will not be heard to complain that the amount thereof cannot be determined with mathematical precision."

Even the tobacco industry admits that its products cause severe health problems, the lawyers for the RMI said. But "under the rule crafted by the High Court in this case, Tobacco -- the wrongdoer -- is not held accountable simply because it imposed a cost that is very difficult to measure precisely in the circumstances presented; and the government -- the victim -- must alone bear the costs of the wrongdoing," the RMI lawyers said.

Even though there is adequate evidence in the record as to tobacco’s liability and the harmful nature of its product, "the government is to be denied recover of its health care damages because Dr. Miller (an expert witness) cannot calculate a precise computation based on a sophisticated body of data in the RMI."

The RMI says that evidence before the court makes clear that a "damage estimate" is not just an option but a necessity in this case.

Commenting on errors that were made in an attempt to calculate damages, the RMI said that its experts had to devise a program of study that had never been done before in a socialized country such as the RMI. The entire team of medical experts advising the government reviewed the program and it appeared valid, until tobacco industry officials found major errors.

"There is no doubt that mistakes were made in the survey method and the coding errors associated with it, and the record is clear that the government, its experts and its counsel were completely candid about these once they were discovered," the RMI attorney said.

When the errors in the data were discovered, the RMI experts used a U.S. model known as a "National Medical Expenditure Survey" (NMES) for calculating an estimate of the damages. But the High Court rejected this model, saying that it was inappropriate to use a U.S. model to estimate damages in the RMI.

The RMI said that it was appropriate for its expert medical advisors to conclude that the NMES data provided a reasonable substitute for estimating that a similar percentage of the total medical care expenditures used to treat smoking related disease in the U.S. has been used to treat smoking-related disease in the RMI, even if the total medical expenses -- due to inadequate facilities and a smaller population -- were less in the Marshall Islands.

"What is inappropriate is for the High Court, in the absence of any basis for it, to reject Dr. Miller’s expert opinion as ‘not scientifically valid,’ institute in its stead the court’s own view of cross-cultural health economics and medical usage patterns, and preclude Dr. Miller from testifying as to his conclusions," the RMI said.

The RMI added that the proper way to settle a dispute over an expert’s use of certain data is to provide the opportunity for cross-examination, argument and submission of evidence at trial. Johnson’s rejection of Miller’s testimony is "an abuse of discretion," the RMI said.

The RMI attorneys also attacked Johnson's ruling for saying that the amount of money sought in compensation was outrageously high. "In fact, the numbers generated... were in line with amounts awarded in U.S. courts and in the settlement agreements with the state attorneys general and were conservative when viewed against verdicts in other tobacco litigation," the RMI said.

The RMI pointed out that Johnson had criticized the RMI for accepting a damage figure of $4.6 billion, saying this figure was "breathtaking" for a population of 50,000. Johnson added that he "seriously doubts that any person now living in the Marshall Islands can grasp how much money $4.6 billion really is." The RMI attorneys said this was gratuitous criticism that "was entirely unwarranted" and "insulting" to the Marshallese.

They quote Dr. Neal Palafox, saying that "a figure of $4.6 billion for future health care, based on U.S. level of facilities, is not and was not patently absurd, nor was it out of line."

The RMI said that historically, when it is possible, patients are sent to Hawai‘i for health care.

A "reasonable and necessary" standard for future damages does not depend on RMI resources any more than all severely injured claimants’ future needs depend upon their own ability to pay for them, the RMI said.

"A destitute man made paraplegic by the tortuous acts of another is not denied recovery for necessary future therapy simply because he could not afford such treatment before trial," the RMI said.

The RMI calculations of future funding need to pay for health care is reasonable, the RMI said. "Unhinged from prior budget limitations and the poverty of plaintiff (RMI)" the calculations make sense for the future. "They meet the test for a reasonable estimation, and they do not limit the Marshallese to a level of insufficient care for tobacco-related diseases because their country has been poor in the past," the RMI said. "The law does not allow tobacco to injure RMI citizens and then give them inadequate treatment that does not recognize Marshallese equality with those injured in Hawai‘i and the rest of the U.S."

The Marshall Islands Journal, Box 14, Majuro, Marshall Islands 96960 E-mail: journal@ntamar.com  Subscriptions (weekly): 1 year US $87.00; international $213.00 (air mail).

Rate this article: 
No votes yet

Add new comment