The long standing suit of thirty-two lung cancer patients against KT&G (Korean Tobacco and Ginseng) has been decided against the thirty-two plantiffs, after seven years of legal wrestling in court.
Apparently, the judges in the case decided that there was not enough evidence to link the plantiff’s cancer to smoking, however the judges seem to be in the minority in making their judgment. As per one physician, here in Korea,
“Based on this court’s logic, no cancer patient who got cancer because of exposure to asbestos would be recognized as a victim of a work-related disease, . . . Not all people who are exposed to asbestos get cancer. Nonetheless, the state is compensating them as the victims of asbestos because of the strong causal relationship between their disease and their exposure to asbestos.”
As some sources have pointed out, there is a plethora of medical studies that link smoking to cancer, thus for the judges to decide that “there was insufficient evidence that the lung and laryngeal cancers suffered by the plaintiffs were caused by smoking.” (quote from the Chosun Ilbo)is a bit hard to swallow.
All this to say that it appears this ruling is of benefit to the larger business concerns of KT&G but begs the question as to what impact this will have on other public-interest suits that are pending in Korea.
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26 Comments
Haven’t heard about the Korean Vietnam war vets suit in the Korean courts against Dow, et. al. over Agent Orange in a long time. Wonder where that stands? Given the ruling in this case, it’s hard to imagine they would prevail, but who knows: the balance of sentiment would certainly be different.
Not only that, exposure to certain types of asbestos combined with smoking has a catalytic effect for the development of certain types of lung cancer, so there is a question of apportioning causation as well.
Anyhow, too many Koreans smoke and too few realize it is a hazard to one’s health rather than a tonic.
In January 2006, the Seoul High Court awarded about W9,000,000 to each of 6800 Korean persons claiming injury caused by exposure to Agent Orange during the Vietnam War — total of W60 billion. Something like that could not go unappealed by Dow, and so the Agent Orange case is at the Korean Supreme Court now.
Not an expert here, but I would say the real problem is not the causality per se but the damages. Courts only award such decisions and damages when there are real monetary damages. Thus what the plantiffs have to prove not only the smoking caused the cancer, but also they would not have had that cancer otherwise. A tough challenge.
I was about to say the same thing that Dram man said, but he said it so I won’t.
Dram Man:
I think you are mixing apples and oranges.
The “but for” issue really just speaks to causality. I’m not sure what the Korean view is - if there even is a consistent established precedent - but nowhere else sensible requires a showing that there could not have been another intervening cause in order to establish causation, although if it is shown that there in fact was an intervening cause that’s pretty much end of story.
The damages issue concerns how much is necessary to compensate the plaintiff if causation has been established. I know that - in addition to jurisdictional, immunity, collateral estoppel, statute of limitations, laches and causality issues - one of the issues in the Korean Agent Orange case concerned ascertaining just how much the injuries to the plaintiffs would be “worth”. Unlike most US jurisdictions, Korea generally doesn’t recognize pain, suffering, emotional distress, etc. but limits damages to the out-of-pocket costs of e.g., ads in this medical care, and things like lost wages. Among the problems faced by the Korean VN vets in establishing their damages were the fact that ROKGOV paid/pays their medical expenses and their estimated projected earnings were almost negligible. I’m surprised at the size of the individual awards made by the Seoul High Court. (As noted above, I’m also surprised that they won at the High Court, after having lost, I believe, at the initial trial level, given the sort of attitude taken by the court in the smoking case. I imagine Dow, et al are looking hard at the latter case’s reasoning and precential value right now.
Medical research and the fact that these guys probably smoked 2 packs of cigarettes a day for 25 years wasn’t enough to convince the judge that their cancers were related to tobacco? What more evidence does he need?
Doggbert,
The fact that smoking aggravates asbestositis is of little importance in determining the cause of the cancer. To put it simply, the types of cancers caused by asbestos and tobacco are quite different. Asbestos causes asbestos mesothelioma, these men had squamous cell carcinoma, adenocarcinoma, or a throat cancer.
It sounds like the justices followed my grandfather’s line of thinking about smoking. His uncle smoked 2 packs a day his entire life and lived to be 94, so that was his “proof” that smoking wasn’t harmful. He chose to ignore the scores of his other relatives and reams of his friends that didn’t make it to 70 because of lung cancer. Always thought he’d be the exception and not the rule. Died at 72, still smoking. Lung cancer.
My guess is that the judges presiding over the case had a very close relationship with the lawyers representing the KT&G, to the point where the lawyers can simply ask “Hey buddy, can you rule this in our favor?”.
Or maybe the judges received a hefty bribe from the KT&G lawyers.
I wrote about this story as well on my page. I’m glad they lost.
Why should the company pay for their cancer? Unless they were absolutely clueless about the harmful effects of smoking (possible in a place like Korea where information may not have been available) or got it from secondhand smoke, I see no reason to give these people a dime. Don’t let freedom from personal responsibility take root here as it has in North America.
A very close relative died of cancer at a relatively young age, but it would be ridiculous for me to blame a third party for it.
No.
Mesothelioma is a very rare (and deadly) cancer which has a strong and proven correlation to exposure to chrysotile asbestos (there are different types of asbestos fibers). It has no connection whatsoever with smoking.
Exposure to other types of asbestos fibers can cause other types of lung cancer, and it is thought by many scientists that smoking is a catalyst to asbestos exposure in the causation of these cancers.
http://www.medicinenet.com/asb...../page5.htm
dogbertt,
What’s your point? Reread my post. Smoking is the most common cause of squamous cell carcinom, adenocarcinoma and throat cancers. If these two men were chain-smokers and never worked with asbestos, it doesn’t take a genius to put two and two together.
PS. Mesothelioma isn’t that very rare among those who worked with asbestos. “Very deadly”? There is no known cure. 100% death rate. It killed my uncle.
You wrote:
This is not true. That’s my point. I’ve seen literally thousands of pulmonologists’ reports attesting to the fact that smoking and asbestos exposure are both causes of non-small cell lung cancer, not to mention you can find that info online.
Mesothelioma occurrence, even among asbestos workers, is not common. It is still a rare cancer. As I said, there are many different types of asbestos fibers and only one type causes mesothelioma. Even then, the majority of people exposed to that type of asbestos fiber will not develop mesothelioma. However, you are right that smoking does not cause mesothelioma nor does it have a synergistic effect.
It’s a nasty disease, as you know. I’ve worked with several individuals who had it, and died of it. There is no cure and surgery is almost never an option.
Should have sued BAT (British American Tobacco) first. I guess it can wheeze a sigh of relief.
All this talk about asbestos, yet radon gas is the #2 cause of lung cancer, so says the Mayo Clinic.
The hearsay rumor from the prehistoric ages is that the dinosaurs perished for the cause of smoking. Smog by dinosaurs’ smoking veiled the sky and thus made plants dead, changed food chain. The biggest animal at that time, dinosaurs were the most susceptible to the environmental changes. They died, not directly but indirectly by smoking. Another rumor is edidemic, but it’s not a time to discuss it further.
The free will of the smokers worked to their smoking, and thus it’s thieir part, their responsibility to the result of smoking.
A writing about this ruling by Mr. Swordman is here, swordman.egloos.com/2958107 .
I’m afraid of referral log, so copy & paste to the address section of your web brower.
Her’s the ruling,
http://www.scourt.go.kr/dcboar.....eqnum=1525 .
As for Agent Orange case, I think Korean vets and American vets had better cooperate. May be they have been working together.
I agree with Snow:
A very close relative died of cancer at a relatively young age, but it would be ridiculous for me to blame a third party for it.
dogbertt
Everyone knows smoking causes cancer and other diseases. (Kind of. Of the three types of lung cancer, two are hereditary. Lee Joo-il the comedian died of one of these, not the third which is environmental ie smoking and other stuff). It’s on the packs and even on tobacco company websites (maybe not KT&G). Smokers smoke at their own risk. The reason for Agent Orange and asbestos compensation is because people were required by their job to work with these agents without being aware of the risks.
There’s a massive hypocrisy about all this. Why does society allow companies to legal sell products and then turn around and wreck their business with massive payouts because said products are dangerous? Either ban tobacco or shut up.
While the judges logic is I feel, flawed, the question is not one of causal or not. One is exposed to asbestos without one’s knowledge, often. There is no volitional act [and therefore no responsibility, necessarily] to mitigate the plaintiff’s responsibility.
However, in the case of smoking, there is the fact that most people know it is harmful–and then they light up and take the volitional act of bringing it to their lips and inhaling. Hardly “victims” except as victims of their own lack of responsibility and awareness around their pollution their bodies.
I do not know how this squares with the law, but from a philosophical/moral standpoint, I would throw it out of court.
Why is this man grinning? (It’s KT&G’s lawyer from Shin & Kim, where I used to work. In the interest of avoiding defamation, I won’t give my opinion of working with that guy.) He’s managed to bilk this case for seven years at the initial trial level, with the prospect of seven — or more — years’ employment on the appeal (in Korea, an appeal is a re-trial on all issues), followed by a punt to the Supreme Court which will hold onto it for an indeterminate period of time (Kenzi Snider’s Supreme Court judgment took something like three years). Awesome.
Jason McClain wrote:
“Howver, in the case of smoking, there is the fact that most people know it is harmful–and then they light up and take the volitional act of bringing it to their lips and inhaling. Hardly “victims” except as victims of their own lack of responsibility and awareness around their pullution their bodies.
I do not know how this squares with the law, but from a philosophical/moral standpoint, I would throw it out of court.”
The health risks of smoking were not well known when my mom got hooked in the late 1950s. She was working as a records clerk in a hospital and started smoking in order to get cigarette breaks! She tried so many times to quit over the next 45 years and finally achieved success with recent medical technologies like the patch that help smokers kick a powerful addiction. Her chronic bronchitis is gone, but now she is permanently disabled by COPD. I am thankful that I did not grow up in an era when smoking was glamorous.
We are all very aware of the dangers of smoking, but most people become nicotine addicts when they’re risk-taking teenagers who think they’re going to live forever. Cigarette companies deny that they target young people, yet place ads in magazines like People and Sports Illustrated with a youth readership just under the 15% restriction established in a court settlement.
Legalized tobacco is sort of a catch-22. We can’t ban it without making criminals out of 25% of the US population, yet the noxious weed continues to turn young people into addicts as tobacco companies jack up the nicotine to keep customers hooked (http://www.hsph.harvard.edu/press/releases/press01182007.html ).
Our best hope is science, which recently discovered the area of the brain that regulates addiction (http://www.nytimes.com/2007/01/26/science/26brain.html?em&ex=1170046800&en=f64c4cf2aee3614a&ei=5070 ). Until science develops effective treatments for addictions, I don’t mind seeing sick smokers harass companies that push addictive poison.
“The health risks of smoking were not well known when my mom got hooked in the late 1950s.”
Maybe not, but they certainly knew by the late 60s. I distinctly remember an incident in elementary school that made me realize how bad smoking was (and I told the relative I was very concerned about their health). My relative had been a smoker from the 50s, but there really is no one but her to blame for getting lung cancer. Even I as a young kid knew it was bad.
How stupid can people be? If you suck black smoke into your lungs for a long time, it’s going to kill you, or at least have a severely bad effect on your health, just as pouring gallons of alcohol down your throat on a regular basis is going to do serious damage. I can’t believe that people in the past didn’t know that it was bad for them, even though they might not have known that it was really, really bad.
I know smoking is hard to quit, but I hardly think that excuses people from refraining from doing things that they know are harmful to themselves. Personal responsibility is the issue here, not evil tobacco companies.
Snow wrote:
I know smoking is hard to quit, but I hardly think that excuses people from refraining from doing things that they know are harmful to themselves. Personal responsibility is the issue here, not evil tobacco companies.
What part of the word “addiction” don’t you understand? It is a physiological response, not a conscious choice.
So who’s to blame for addiction? Give me a break. If I’m a cocaine addict, who’s fault is it? I have no one to blame but myself.
At least cocaine and heroin addicts recognize that they _are_ addicts and not only that, they do not constantly befoul the air around them.
Snow wrote:
“So who’s to blame for addiction? Give me a break. If I’m a cocaine addict, who’s fault is it? I have no one to blame but myself.
If you know that a substance is addictive and harmful and you begin using it anyway, then yes, you are responsible for your addiction. Many older Americans began smoking before it was widely known to be addictive and harmful. As recently as 1992, a string of tobacco executives under oath before Congress insisted that they believed tobacco was not addictive. Of course, not many Americans believed them, but these execs were under oath.