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TOBACCO BATTLE WIDOW MAY LOSE HER HOME 

TOBACCO bosses could force cancer widow Margaret McTear out of her home, it was revealed last night.

The pensioner saw her bid for £500,000 compensation from Imperial Tobacco for the death of her husband Alfred thrown out yesterday.

And last night, the tobacco giant refused to rule out pursuing her for costs.

Margaret's own lawyers worked on a no win, no fee basis. But if she has to pay Imperial's costs, it could mean selling her home.

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McTear vs Imperial Tobacco: Decision Day for Historic Legal Case 

One of Scotland's longest running legal sagas ended today (31st May 2005), with Lord Nimmo Smith delivering his verdict in the McTear vs Imperial Tobacco case at Edinburgh's Court of Session. In his opinion he ruled that Imperial were not responsible for the death of Alfred McTear. . . .

Imperial Tobacco still denies there is a link between smoking and lung cancer. Today we call on Imperial Tobacco to stop denying what the rest of the world accepts. Imperial Tobacco must accept that smoking cigarettes causes cancer and continues to kill millions of people around the world.

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Imperial's successful defence of a cancer claim puts 'personal responsibility' to the fore 

Lord Nimmo Smith delivered his judgment in the long-running case of Margaret McTear v Imperial Tobacco Ltd this month. . . .

Lord Nimmo Smith acknowledged that the pursuer's case would no doubt have been conducted differently had more resources been available. However, that is not to say that more resources would have resulted in a different outcome. The case faced fundamental difficulties which could not have been remedied by additional resources.

A key difficulty was the issue of individual responsibility and the fact that Alfred McTear smoked in the knowledge of the risks associated with doing so. . .

Imperial's defence included the argument that the fundamental policy of the law is to allow the individual the right of self-determination. Once aware of a risk they have a duty to consider their options and take responsibility for informed choices. This fundamental principle applies in other circumstances involving risk.

Lord Nimmo Smith accepted this argument. . . .

The individualistic policy of the law in this case has implications beyond tobacco litigation. Others who may have feared consumer claims can take comfort from the conclusions on individual responsibility and from Lord Nimmo Smith's words: "It's not difficult today to find instances of people who, rather than blaming themselves for the consequences of their own decisions, seek to negate responsibility by claiming that a condition, such as obesity or addiction to a controlled drug, has just happened to them, independently of their own volition, or is someone else's fault� The law gives no countenance to such a tendency. The individualistic philosophy requires that individuals must live with the legal consequences of their own informed choices."

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• DAVIS: Smokescreen [Cover Story: FREE!] 

Despite the government's anti-smoking bluster, the big tobacco companies live a charmed life in Britain, especially in the courts. You can't sue them and win. . . .

Five decades after British studies first raised the link between smoking and cancer, smoking is still treated only as a health- policy issue. The law, and the government, have remained silent on the actions of tobacco companies and their executives, even though three of the largest companies in the world - BAT, Imperial Tobacco and Gallaher - are based in Britain.

This month, the government began trumpeting a major consultation exercise to get the public behind anti-smoking legislation banning smoking in public places. Behind the spin is another story, the story of a government and legal establishment unwilling and unable to take on the cigarette-makers. Now, attempts to bring the companies to account privately through the courts have been dealt a severe, possibly fatal, blow. It is a case history of the charmed life still led by tobacco companies in this country. . . .

What is striking about the internal documents held at Guildford, according to Jeff Collin, a lecturer in global heath policy at the London School of Hygiene and Tropical Medicine, is the bluntness of much of the language. The caution exhibited by executives of other Big Tobacco companies, choosing their words carefully even in internal memos, was apparently not shared by those working for BAT. "They put things on paper that others didn't," he said. Collin believes that BAT bosses felt protected by the British attitude towards litigation and corporate accountability, and by their own well-developed political connections. In a separate case, an Australian court heard that their bluntness even extended to putting down on paper discussions about destroying potentially incriminating documents. Some of these were used in the litigation against BAT, which said it had not broken any laws. Yet, outside the efforts of Collin and others, who are creating a website to provide better public access to the papers, where are the politicians' demands for an investigation? . . .

Although we do not have a Rico statute in this country, we have a plethora of laws on fraud and corruption. Why aren't they used?

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• Burning issue 

The case of a 60-a-day smoker that was stubbed out in court highlights the mammoth task facing claimant lawyers when they take on the giants of the tobacco industry . . .

Martyn Day, senior partner at London firm Leigh Day & Co and chairman of Greenpeace, offers the following anecdote to neatly sum up the difference between tobacco litigation on the two sides of the Atlantic.

When the claimant lawyer was preparing for his own ill-fated action on behalf of 50 smokers in the mid-1990s, he flew to Boston for a meeting with his US peers. As he disembarked from his plane - Virgin economy class - he saw a row of private jets lined up by the terminal building. 'It was when I got to the meeting that I realised they belonged to my brethren trial lawyers who have made an absolute mint from these cases,' recalls Mr Day. He was their 'poor country cousin', he adds.

While litigation on behalf of ailing smokers has made a generation of 'Lear-jet lawyers' in the US, it is not making anyone rich in the UK and such claims have yet to get off the ground in the UK. . . .

It took the judge 15 months to write a judgment weighing in at 1,121 pages and 350,000 words, after a 42-day trial. . . .

In the Leigh Day/Irwin Mitchell action, Mr Day once jokingly called their method of funding as 'no win, no fee and possible bankruptcy'. Mr Fyfe is putting a brave face on where the epic action leaves his firm. 'It didn't cost us much in terms of money but 13 years is a long time . . .

The claimant lawyers were clearly frustrated by their lack of resources. Mr Fyfe says they were forced to ask 'umpteen experts' to give evidence 'out of the goodness of their hearts' - but none came forward. They did have one former consultant in thoracic medicine, but his association with the anti-smoking group Ash meant the court did not consider him an independent expert.

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RIACH: Parliament is the arena for smoking ban 

But as Lord Nimmo Smith pointed out, the hearing before him was not a public inquiry into the issues relating to smoking and health. The Scottish Executive has emphasised that the ruling will have no effect on its plans to push through legislation to prohibit smoking in public places. . . .

The McTear decision and the two bills highlight the distinct roles of the court and parliament. In claims for personal injury, judges determine cases on a balance of probabilities, having heard factual and expert medical evidence on oath.

The legislature is not concerned with burdens of proof. Members of the parliament simply have to assess the evidence presented to them on public policy grounds. It is clear that the most effective method of addressing the impact of smoking on public health is not through an individual piece of litigation in the courts, but through legislation in the parliament.

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Loss of tobacco suit means 120 other cases will be dropped 

The widow of a man who died from lung cancer lost a battle against Imperial Tobacco that had lasted more than a decade in the Scottish courts last week. The case is almost certain to be the last attempt for some time to sue over injuries related to tobacco in the UK courts.

At the Court of Session, in Edinburgh, the judge, Nimmo Smith, comprehensively rejected a claim by Margaret McTear that the company should be liable to pay compensation for the death of her husband, Alfred, in 1993 at the age of 48. Mr McTear, a 60 a day smoker, had launched the case himself but his widow carried it on after his death. He died seven days after giving evidence from his sick bed.

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• Landmark case suffered lack of expert evidence 

IT has taken 13 months to write and is 350,000 words long, but Lord Nimmo Smith's judgment on the McTear case has left many disappointed. . . .

The judgment states: "I am prepared to accept that Mr McTear found it difficult to wean himself off his habit once he had started smoking and in that sense could be described as addicted. I do not accept that he was for this reason unable to stop smoking. The averment that tobacco is more addictive than cocaine is not proved." . . .

The judgment says: "There is no breach of a duty of care on the part of a manufacturer, if a consumer of the manufacturer's product is harmed by the product, but the consumer knew of the product's potential for causing harm prior to consumption of it."

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• Anti-smoking links weakened tobacco claim case, says judge 

THE judge who threw out a widow's landmark legal claim that a tobacco giant was responsible for her husband's death said unreliable witnesses undermined her case.

Margaret McTear last week failed to win damages from Imperial Tobacco. But in a damning criticism of the lawyers who acted for the 60-year-old, Lord Nimmo Smith said key witnesses' links with anti-smoking groups damaged her legal action's chances of success.

In comments buried deep in Lord Nimmo Smith's 514-page judgment, he stressed that expert witnesses had to be independent and that evidence given in McTear's case had been unsound.

He said: "All the expert witnesses for the pursuer [McTear] were or had been connected in some way with ASH [the anti-smoking group] and were clearly committed to the anti-smoking cause; and no doubt for this reason were prepared to give evidence gratis. By contrast, all the expert witnesses for Imperial Tobacco charged fees for their services." . . .

Lord Nimmo Smith, who ruled against McTear after a 12-year legal fight, was particularly scathing about the evidence of Professor James Friend, whose past connections with ASH included being acting chairman and an executive committee member of the anti-smoking group. . . .

The judge said Prof Friend had been giving evidence to further a health cause. "He did not meet the criteria that would qualify him as an independent expert witness on which the court could rely to give a balanced view on the issues in this case." . . .

He said: "We asked ASH to recommend anyone who could give evidence free of charge and we took the view that Prof Friend was an expert in his field, as a prominent lung physician. I don't think we could have got anyone better because we could not get legal aid to fight the case. I think it is unfair for the judge to criticise us when all that is taken into account."

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All the expert witnesses for the pursuer [McTear] were or had been connected in some way with ASH [the anti-smoking group] and were clearly committed to the anti-smoking cause; and no doubt for this reason were prepared to give evidence gratis. By contrast, all the expert witnesses for Imperial Tobacco charged fees for their services.
The flawless logic of Lord Nimmo Smith, in his 514-page ruling.

When was the link between smoking and cancer established? 

It seems obvious now that smoking is bad for you. But, back in the first half of the last century, things were different. Medical textbooks were largely empty on the subject, and smoking was often seen as part of growing up. . . .

Alfred McTear's objections are not as outlandish as they might seem. He started smoking in 1964 and, according to Jean King, director of tobacco control at Cancer Research UK, the seminal document that linked lung cancer to tobacco and demanded action from government was published only two years before by the Royal College of Physicians. And it took time before its effects were widely felt. . . .

After the Royal College's recommendations in 1962 - restriction of advertising; higher taxation; restrictions on sales to children and on smoking in public places; information on tar and nicotine content - cigarette sales fell for the first time in a decade.

King says the ruling in the McTears' case was disappointing. "It is time we stopped blaming smokers for becoming addicted to tobacco and started blaming the tobacco companies that actively promote their products. When young people start smoking they do not think about the risks associated with cigarettes. By the time they do realise, it's too late and they're hooked."

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LETTER: SWEDA: Justice up in smoke 

The 1,121 pages of Lord Nimmo Smith's ruling in the McTear v Imperial Tobacco case (your report, 1 June) can be summed up as follows: "Alfred McTear, who has already borne the ultimate responsibility for his actions by dying of lung cancer at the young age of 48 and who started smoking years before health warnings appeared on UK cigarette packages, is 100 per cent responsible for his death."

Imperial Tobacco, which argued that Mr McTear knew the risks of smoking - even when he began in 1964 - but whose chief executive officer, Gareth Davies, denied in court in 2003 that smoking causes lung cancer, has largely escaped blame. Meanwhile, smoking will kill 13,000 Scots this year and millions more worldwide.

Margaret McTear's solicitor, Cameron Fyfe, has stated that high costs - and not the merits of the case - have ruled out the possibility of an appeal.

This ruling is nothing less than a victory for corporate wrongdoing.

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• Call for health boards to sue cigarette firms 

A LEADING anti-smoking campaigner has called on health boards to sue tobacco companies in an attempt to force them to compensate cancer victims.

Maureen Moore, chief executive of ASH Scotland, said a historic ruling yesterday showed ordinary people had no chance against the legal spending power of cigarette manufacturers.

She insisted health boards could bring money back into the NHS by using their resources to back a more successful campaign. . .

But the family's lawyer today said a future case could win and Ms Moore called on health boards to make that challenge. She said: "Mrs McTear was very brave, but the ordinary Joe Bloggs does not stand a chance against firms with vast resources to fight their case.

"Health boards have the resources to win a case now we have a clearer idea of what is needed."

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CLARKE: Compensation claims gone in a puff of smoke 

TOBACCO? Stub the thought right out of your mind now. The 12-year battle refereed by judge Lord Nimmo Smith was not about smoking.

It was about blame, greed and Scotland's ever-growing compensation culture fuelled by lawyers who would be as much at home in a Las Vegas casino as a Scottish court.

Losing a close relative to lung cancer is traumatising - I speak from experience - but to make someone else pay morally or financially for what, as Lord Nimmo Smith pointed out, is a personal folly, is too much...

Imperial Tobacco, for a whole load of reasons that have nothing to do with health or morality, refused to roll over. It was right.

Had Imperial Tobacco lost, who would have been the next target? . . .

The McTear case makes not a whit of difference to the debate on smoking, but could be a legal milestone.

Maybe one day Alfred McTear will be recognised for what he was - an accidental champion against Scotland's compensation culture.

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Legal Risk Declines For Imperial Tobacco 

JP Morgan notes Imperial Tobacco (ITY) has won the McTear case. Having sat in the court room during the trial in 2003, JP Morgan had attached an 80% likelihood to Imperial's success in the first ever UK smoker trial. "We are, however, surprised by the full extent to which the trial judge has found in favor of Imperial." Based on this comprehensive win for Imperial Tobacco and the pretrial collapse of the Leigh Day case in England, "we now see close to zero risk of any new smoker trials coming forward in the UK over the next 5-10 years."

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Imperial tobacco may seek costs 

Bristol-based Imperial Tobacco is considering the recovery of "considerable" costs after winning a legal battle with a widow attempting to sue the firm following her husband's death from lung cancer. Margaret McTear, aged 60, claimed the cigarette maker failed to warn her husband Alfred of the dangers of smoking tobacco.

But Lord Nimmo Smith, who has spent the past 15 months writing his decision in the long-running case in which Mrs McTear sought £500,000 damages, has ruled against her historic bid. . . .

Alex Parsons, spokesman for Imperial Tobacco, said: "We are pleased but not surprised at the judge's decision to dismiss the claim. We regret that we have had to defend ourselves against what we believed to be a speculative claim.

"We have never lost or settled any tobacco litigation and will continue to defend ourselves robustly against any further speculative claims."

Mr Parsons added he wasn't able to specify the level of legal costs the firm incurred in the case, though he described them as considerable.

He said: "Recovery is something we are considering." . . .

Cameron Fyfe, of Glasgow-based Ross Harper Solicitors, who represented Mrs McTear, said: "I think Imperial Tobacco will probably seek expenses but I'm almost certain that they will not try to enforce them.

"The expenses run into millions. Mrs McTear only has a home, which is not worth very much. They'd have to bankrupt her to get just a few thousand out of it."

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