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OCR Page 1 of 60settled these State lawsuits for more than $200 billion, a similar magnitude of damages (if
not more) would seem realistic in a suit brought by the United States.
Courts have been more prone to agree with cigarette makers' proximate cause
arguments in cases brought by private health care payors on similar legal theories and causal
chains. But many have (correctly) rejected cigarette makers' arguments that such private
health care payors fail to allege proximate cause under federal RICO and antitrust
precedent. 21 These cases are correct because the cases ruling for cigarette makers have relied
on formalistic notions of indirectness that, as described below, are clearly precluded by the
Supreme Court authority. None came to grips with the facts that smokers simply cannot
bring the legal claims being brought here, and that there is thus no more direct party who can
sue and no risk of duplicative damages. In any event, the cigarette makers have repeatedly
distinguished these cases brought by private health care payors from cases brought by States
on the grounds that remoteness doctrines are less applicable to sovereign entities. This
at *5 (Wash. Sup. Ct. 1996) (state would have standing under Illinois Brick even without special
statute); McGraw v. American Tobacco, No. 94-C-1707, slip op. at 5 (W. Va. 13th Cir. Feb. 13,
1997) (finding standing under McCready); Arizona v. American Tobacco, No. CV-96-14796, slip
op. at 1-3 (Super. Ct. Ariz May 27, 1997) (rejecting motion to dismiss for lack of proximate cause).
21 See, e.g., Laborers Local 17 Fund, 7F. Supp. 2d at 283-86 (ERISA funds have standing
because proximate cause alleged under Associated General and Holmes), appeal pending; Iron
Workers Fund, 23 F.Supp.2d 771 (ERISA funds have standing because proximate cause exists under
Holmes, Associated General, and McCready); Minnesota & Blue Cross v. Philip Morris, 551 N.W.
2d 490, 497 n.1 (1996) (Blue Cross would have standing under Illinois Brick even without special
statute); West Virginia Laborers' Fund v. Phillip Morris, No. Civ. 3:97-0708 (S.D.W.) Va. Aug. 12
1998) (rejecting motion to dismiss ERISA funds on remoteness grounds); National Asbestos
Workers Fund v. Philip Morris, 1998 W.L. 732911 (E.D.N.Y. 1998) (same); Northwest Laborers-
Employers Fund v. Philip Morris, No. C97-849WD (W.D. Wash. Dec. 23, 1998) (same); New Jersey
Carpenters Fund, 17 F.Supp.2d 324 (ERISA funds have standing to bring one-link causal claims but
not two-link ones); Kentucky Laborers Fund, 24 F.Supp.2d 755 (same).
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