2005© Tobacco Control Resource Center, Inc. Secondhand Smoke Litigation Edward L. Sweda, Jr., JD Senior Staff Attorney Tobacco Control Resource Center Northeastern University School of Law Boston, Massachusetts 2005 National Conference on Tobacco OR Health May 4, 2005, in Chicago, IL

2005© Tobacco Control Resource Center, Inc. Litigation is a tool, a means to achieve a goal. Litigation itself is NOT A GOAL. It is a tool that is not appropriate under all circumstances. It is time-consuming. It is expensive. It can be an imprecise tool.

2005© Tobacco Control Resource Center, Inc. Litigation can also be effective, resulting in benefits to others (e.g., educating the public) in addition to the parties to the lawsuit. Litigation -- and sometimes the threat of litigation -- can achieve one's goal. My talk today is about litigation on behalf of victims of exposure to secondhand smoke. It is NOT about lawsuits concerning smoke- free statutes, ordinances or regulations.

2005© Tobacco Control Resource Center, Inc. While most lawsuits on secondhand smoke (SHS) have occurred in the United States, similar cases have been brought in several other countries around the world. These include: Australia Canada France Ireland The Netherlands Norway Taiwan United Kingdom Most of these cases are NOT brought against tobacco companies. Rather, the defendants are usually the individuals or businesses or governmental authorities that permit the nonsmoker's exposure to SHS.

2005© Tobacco Control Resource Center, Inc. There have been hundreds of secondhand smoke-related lawsuits spanning almost 30 years. The first one, Shimp v. New Jersey Bell Telephone Co., 368 A. 2d 408, in 1976 upheld the proposition that nonsmoking workers should be protected from the harm caused by SHS. There have been mixed results of these lawsuits: wins, losses, partial wins, others where we don't know the final result. The cases can establish precedent -- whether good or bad -- that affects future lawsuits.

2005© Tobacco Control Resource Center, Inc. OFFICE SETTINGS -- INJUNCTIVE RELIEF OR MONEY DAMAGES In 1983 in Lee v. Department of Public Welfare, 1.2 Tobacco Products Litigation Reporter, 2.82, an office worker was granted a temporary restraining order against smoking in the open area of where she worked with 39 other workers, 15 of whom smoked. While this Massachusetts lawsuit was settled two years after it was filed, it helped educate the public about how dangerous secondhand smoke is. The lawsuit also played a part in spurring the societal trend toward going smoke-free. A woman who sued her former employer because she endured constant exposure to SHS, which caused her to develop acute sinusitis. In May 2003, a jury returned a verdict for the nonsmoker of $5.2 million. Gallegos v. Elite Model Management Corp., 758 N.Y.S.2d 777 (2003).

2005© Tobacco Control Resource Center, Inc. OFFICE SETTINGS -- WORKER'S COMPENSATION AND DISABILITY BENEFITS. Many such cases in the 1980s. They continue to the present. Heather Crowe in Canada, a 58-year-old woman who, though a lifelong "nonsmoker," now suffers from lung cancer after 40 years of exposure to on- the-job smoking as a waitress, was awarded benefits in 2003 by the Ontario Workplace Safety & Insurance Board. Her case can help educate the public.

2005© Tobacco Control Resource Center, Inc. PRISONS The pivotal case is Helling v. McKinney, 113 S.Ct. 2475, 509 U.S. 25, in which the U.S. Supreme Court in 1993 ruled, by a 7 to 2 vote, that a prisoner's exposure to secondhand smoke can, under certain circumstances, constitute cruel and unusual punishment, which is proscribed by the Eighth Amendment to the U.S. Constitution. To succeed in a claim that there is an Eighth Amendment violation, prisoners must allege, and later prove, that prison officials have, with deliberate indifference, exposed them to levels of secondhand smoke that pose an unreasonable risk of serious damage to their future health. Many prison-based secondhand smoke cases have been filed in the dozen years since the Helling decision. It is a very high standard for prisoners to meet. In Atkinson v. Taylor, 316 F.3d 257 (2003), a Delaware prisoner brought a civil rights lawsuit against prison officials for subjecting him to “cruel and unusual punishment” due to exposure to SHS. The 3rd Circuit Court of Appeals affirmed the denial of the prison officials’ motion for summary judgment. In Talal v. White, 2005 U.S. App. LEXIS 5127, the 6 th Circuit Court of Appeals reinstated a prisoner’s Eighth Amendment claim against prison officials in Tennessee who, he alleged, smoked in no-smoking areas of the prison.

2005© Tobacco Control Resource Center, Inc. CHILD CUSTODY CASES Disputes over child custody where the child's exposure to secondhand smoke has become an issue -- more than 20 states in the United States. The key standard is: THE BEST INTEREST OF THE CHILD. One judge in New York in 2002 ruled that secondhand smoke is "a dangerous carcinogen and poses other significant health risks sufficient to order that both parents maintain a smoke-free environment." Johnita M.D. v. David D.D., 740 N.Y.S.2d 811 (2002). A Connecticut judge required that during visitation, the father “shall not smoke, or permit others to smoke in any motor vehicle in which the children are riding, nor shall he smoke or permit others to smoke in the same room in which the children are.” Abraham v. Bouley, 2004 Conn. Super. LEXIS In Iowa, the Court of Appeals affirmed a judgment that terminated the parental rights of the mother and father of a prematurely born child. In the Interest of H.S., Minor Child, C.S., Father, S.V.S. Mother, 2004 Iowa App. LEXIS 643.

2005© Tobacco Control Resource Center, Inc. SMOKE SEEPAGE IN MULTI- UNIT DWELLINGS An increasing trend in recent years. People are better educated about the dangers of secondhand smoke. In a 1998 case, a nonsmoking tenant who lived in an apartment above a smoky bar was sued by her landlord for failure to pay rent after she withheld it, alleging that the levels of secondhand smoke had deprived her of the quiet enjoyment of that apartment. A judge agreed Gainsborough St. Realty Trust v. Haile, et al., 13.4 TPLR 2.302, Boston Housing Court, (1998). Finding an adequate remedy can be challenging. Look at the language of a lease or Condominium Agreement. If smoking itself is not mentioned, look at conduct that can be considered a nuisance, adversely affecting others who live in the building.

2005© Tobacco Control Resource Center, Inc. LAWS THAT BAN DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES CAN HELP CERTAIN NONSMOKERS WHO SUE AFTER THEY HAVE BEEN HARMED BY EXPOSURE TO SHS. Laws at the national level (e.g. Americans With Disabilities Act) and at the state level in the United States have been used in lawsuits to protect nonsmokers from exposure to SHS.

2005© Tobacco Control Resource Center, Inc. RECOMMENDED ACTION STEPS Learn from the legal community in your area (e.g., your national or state bar associations) what resources may be available. Lawyers have different specializations (e.g., landlord/tenant law, prisoner rights, divorce lawyers, etc.) that may be helpful to someone who contacts your office. You can share your expertise regarding secondhand smoke with those who have been harmed by exposure to secondhand smoke. Litigation may be the appropriate and necessary remedy.

2005© Tobacco Control Resource Center, Inc.

For More Information Edward L. Sweda, Jr. Senior Staff Attorney Tobacco Control Resource Center Northeastern University 360 Huntington Avenue 117 Cushing Hall Boston, MA fax