With the legal climate shifting in recent months in the tobacco companies' favor and more states lining up behind a proposed tobacco deal, Maryland is coming under heavy pressure to abandon its hard line against a settlement of its tobacco lawsuit.
Attorney General J. Joseph Curran Jr. says he last discussed the state's tobacco case with Gov. Parris N. Glendening about six weeks ago, when he briefed the governor on talks starting between some state attorneys general and tobacco companies.
Those talks have reached a critical point, with terms of a draft agreement being circulated among some states. Maryland officials may have to decide this month whether to accept a settlement that could pay $4 billion over 25 years.
That is creating anxiety among anti-tobacco activists, who fear a stampede to settle the lawsuits on cigarette makers' terms.
"It's unfortunate that there is a group of attorneys general who are trying to railroad through a settlement," said Eric Gally, a lobbyist for the American Cancer Society and the American Heart Association in Maryland. "It's unfair that they are putting Governor Glendening and Attorney General Curran in this tight spot."
Curran said Friday that the actions of other states will not change his attitude toward settlement. He insisted that the state, which is represented in the suit by the law firm of Peter G. Angelos in return for 12.5 percent of any recovery, will be ready for trial next April.
But he left the door open to join a deal. "If a settlement offer comes down that would give us as much money as we'd get from a jury and more injunctive relief, we'd look at it seriously," Curran said.
Curran said that the Nov. 3 election will play no role in his assessment of any proposed settlement and that Glendening has not pressured him to seek a quick settlement. Others say politics cannot be left out of the calculation in Maryland, where Glendening, who has backed higher tobacco taxes and tough controls on indoor smoking, is in a tight race with Republican Ellen R. Sauerbrey, who opposes increasing cigarette taxes.
"I can't imagine a candidate who doesn't want to have a multibillion-dollar settlement to wave before Election Day and say, 'I got this for you,' " said Glenn E. Schneider, acting executive director of the anti-tobacco coalition Smoke Free Maryland.
Health concerns raised
Schneider, like most other public health advocates, says he doesn't like what he is hearing about the still-secret terms of the proposed settlement.
"The public health provisions are very weak," Schneider said.
The deal would reportedly ban tobacco billboards and bus and taxi ads and provide millions for campaigns to dissuade young people from smoking. But tobacco companies would be permitted to continue to use human figures such as the Marlboro Man in print advertising, to mount posters on stores and to sponsor sporting events such as the Winston Cup.
Financial penalties for failing to reduce youth smoking, which were part of the national tobacco legislation that collapsed in Congress last summer, would not apply.
Glendening may gain
If Maryland accepts a settlement before Nov. 3, Glendening might win votes by taking credit for the hundreds of millions of tobacco dollars that would begin to flow into the state treasury to compensate for Medicaid money spent on smoking-related illnesses.
Even if public health protections did not satisfy anti-tobacco groups, the deal would provide plenty of money for anti-smoking campaigns targeting teens.
Moreover, there is no guarantee that a jury would offer Maryland more. The state has crafted its case to appeal to a Baltimore City jury with a large number of blacks, hiring one expert nurse-lawyer to testify about how tobacco companies have designed advertising campaigns to target African-Americans. Other experts for the state would testify that inner-city residents are particularly vulnerable to smoking-related heart disease and stroke.
In papers filed in Baltimore Circuit Court, the state's economists estimate that, while the state has spent about $3 billion to treat smoking-related disease since 1970, only about $1.6 billion can be attributed to the tobacco industry's misconduct. While a jury could award three times actual damages under antitrust law or impose punitive damages or both, there is no guarantee that a jury verdict would produce more than Maryland's $4 billion share of a settlement.
Nationally, there is little question that the optimism of anti-tobacco forces has faded since June 1997, when a group of attorneys general announced a tentative pact.
In that deal, later debated by Congress, the tobacco companies were to pay $368.5 billion over 25 years and agree to restrictions on marketing in return for settlement of state tobacco lawsuits and smokers' class-action suits.