Albany -- A bill introduced Tuesday -- two days before the Legislature is expected to call it quits for the season -- would give the state significantly more room to flex its muscles when suing the tobacco industry.
The bill, which is pending in the Assembly and the Senate and appears designed to boost the attorney general's odds of winning an ongoing lawsuit, would make it possible for the state to prove its case based on a statistical analysis, not human testimony. It also would eliminate the rules governing when the state can sue for tobacco-related illnesses, making it possible to bring a lawsuit at any point after the alleged injury occurred.
"The state shall not be required to identify, join, or produce the individuals for whom medical expenses were provided or likely would be provided," the bill states. "Causation and damages in any action under this section may be proven by statistical analyses."
The law would be retroactive to January 1997. If passed, it would affect a lawsuit Attorney General Dennis Vacco filed over a year ago against the tobacco industry to recoup Medicaid costs linked to tobacco-related ailments.
"We continue to pursue our lawsuit against the tobacco industry and will take whatever steps necessary both (in court) and otherwise to make sure the industry is held accountable for luring teen smokers," said Christopher McKenna, a Vacco spokesman. Vacco is running for re-election.
Because it is so late in the legislative session, the bill lists no individual sponsor and was instead introduced by the rules committee in each house. It could be voted on as early as Thursday, the last scheduled day of the session.
Representatives of the tobacco industry immediately criticized the proposal as an unfair attempt to win an advantage in ongoing legislation.
"It is a blatant money grab," said Steven Rissman, senior counsel to Philip Morris, a large manufacturer of tobacco products and a heavy contributor to New York political campaigns. "It would essentially change the rules in the middle of a pending lawsuit."
Victor Schwartz, head of the Washington-based American Tort Reform Association, said four other states -- Missouri, Iowa, Vermont and Florida -- have attempted to pass and defend similar legislation. But Schwartz called New York's proposal the "most extreme."
"It retroactively changes rules of law after a case has already begun. In my view that trespasses on basic constitutional rights," Schwartz said. "Right now it may be difficult for him (Vacco) to prove how many people have heart disease as a result of tobacco exposure . . . but difficulty is not an excuse to upend fundamentals of law."
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