Prediction Of A Class Action Defense Lawyer: Class Action Test Cases Alleging “Unlawful” Exposure To Secondhand Cigarette Smoke On The Horizon In California

Jul 8, 2006 | By: Michael J. Hassen

On June 27, 2006, U.S. Surgeon General Richard H. Carmona released a mammoth report on secondhand cigarette smoke that is likely to benefit the class action plaintiff lawyers far more than the children the report seeks to protect. The report – entitled, “The Health Consequences of Involuntary Exposure to Tobacco Smoke” – spans more than 700 hundreds pages with exhibits, and provides a comprehensive analysis of the health risks associated with “passive” smoking, or in the words of the report, “involuntary smoking.” Those risks are substantial, increasing the risk of developing heart disease and lung cancer by an estimated 25-30% and 20-30%, respectively. The risk to infants and children are even more substantial, and is now known to be a cause of SIDS (sudden infant death syndrome), respiratory problems, including asthma, and ear infections in that group. And the risks are unavoidable: the Surgeon General concludes that there is no “risk-free” level of exposure to secondhand smoke; even brief exposure immediately effects the cardiovascular system adversely.

California state and federal court class action defense attorneys should anticipate that the report is likely to lead to class action test cases, particularly in light of California’s act of becoming the first state to declare secondhand smoke a “toxic air contaminant.” On January 26, 2006, the California Environmental Protection Agency announced, “Today the California Air Resources Board (ARB) identified environmental tobacco smoke (ETS), or second-hand smoke, as a Toxic Air Contaminant (TAC). ETS is now formally identified as an airborne toxic substance that may cause and/or contribute to death or serious illness. ARB’s action to list ETS as a TAC was based on a comprehensive report on exposure and health effects of ETS.” Now that the U.S. Surgeon General has announced that there is no safe level for exposure to secondhand smoke, and has confirmed in a comprehensive report the health risks associated with exposure to secondhand smoke, class action plaintiff lawyers are likely to test the waters on new and novel theories.

In part this prediction is based on experience: California class action plaintiff lawyers have already threatened to sue banks, property managers and property owners for “wrongfully” exposing customers to the secondhand smoke of other customers while using or standing in line to use bank ATM machines, as well as near entrances to banks. The California Attorney General has weighed on that subject, warning at least one plaintiffs’ lawyer to consider carefully before filing such a lawsuit. The author predicts that it will not be long before a plaintiffs’ lawyer seeks to use the Surgeon General’s report as the foundation in a class action lawsuit. As a class action defense attorney, the author sincerely hopes that he is wrong. Only time will tell.

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