I am especially concerned that the so-called Class Action Fairness Act will provide special legal protections to the tobacco industry. Therefore, I call up my amendment to exclude tobacco-related lawsuits from this legislation.

This bill would allow tobacco companies to remove state class actions involving state causes of action to federal court over the objection of plaintiffs.

The bill’s minimal diversity provision – which pushes all state-based claims to federal court where at least one plaintiff and one defendant are from different states – guarantees that tobacco-related cases will end up in federal court since the major tobacco companies are all headquartered in only one or two states while tobacco victims are nationwide.

Clearly, it is to the advantage of the tobacco industry to have a case transferred from state to federal court. Federal courts have been reluctant to certify classes of tobacco victims in class actions suits because the emerging causes of action are based on state tort law, which should be developed by that state’s court system.

Indeed, the Fifth Circuit, in Castano v. American Tobacco Company, reversed a certification of tobacco victims by a lower federal court, finding tobacco-related causes of action were premature since so few tobacco cases have been decided in state courts. The tobacco industry, under this bill, may take advantage of this situation in the federal courts by preventing more state courts from developing their state laws for tobacco victims seeking justice.

The American Lung Association is opposed to this legislation “because of the adverse effect the bill would have on the ability of injured Americans to hold tobacco companies accountable in court.” In a letter supporting my amendment, the American Lung Association continued: “This bill would give Philip Morris, R.J. Reynolds and other tobacco corporations an additional and unwarranted tactical advantage by allowing them to remove state class actions to federal court against the will of the plaintiffs.” I agree and ask unanimous consent that the letter from the American Lung Association in support of the Leahy amendment be included in the record.

In addition, the American Medical Association supports this amendment. In a letter to all Committee members, the Executive Vice President of the AMA stated that: “The AMA believes the Committee’s acceptance of Senator Leahy’s amendment is vital to the continued existence of class action suits against the tobacco industry.” I ask unanimous consent that the AMA’s letter in support of the Leahy amendment be included in the record. If this bill was the law of the land, for instance, the current historic tobacco class action case in a Florida state court, Engle v. R.J. Reynolds, might never have proceeded. In Engle, all the tobacco victims are residents of Florida, but the defendant tobacco companies are all out-of-state corporations so the tobacco industry could have removed the case to federal court under this legislation. Instead of possibly being thrown out by a federal judge interpreting state law, the Engle case proceeded based on the evidence. The jury in the Engle case found that the cigarette makers “engaged in extreme and outrageous conduct” and awarded $12.7 million in compensatory damages to the Florida tobacco victims.

The Engle jury is now considering the proper amount of punitive damages to access against the tobacco industry for its outrageous conduct.

In the last Congress, Senator Gregg and I authored a floor amendment that struck all special legal protections for tobacco companies from the national tobacco control bill. It made no sense then to reward the tobacco industry for its 45-year campaign of deception about the dangers of cigarettes by giving it special legal protections, and it continues to make no sense now. The men and women whose lives were cut short by cancer and other adverse health consequences from tobacco deserve better treatment than future years of obstruction and denial by the tobacco industry in the already overburdened and understaffed federal courts.

My amendment would exclude claims for injury or harm caused by the use of or exposure to a tobacco product from the provisions of this bill. I believe it is appropriate to carve out tobacco-related claims given the tobacco industry’s documented years of deceptive advertising and marketing to children.

The bill’s sponsors have already carved out securities and corporate governance cases from the bill. Another carve out for tobacco-related cases is appropriate given the emerging state law that should be decided by state courts.

I know Chairman Hatch has shown at times during his legislative career that he is no friend of the tobacco industry. I hope he can join me today and vote for this amendment to hold the tobacco industry accountable for its actions.