Brazil - plaintiff always loses in court cases brought against tobacco companies..

May 3, 2010 - The 4th Panel of the Superior Justice Court (STJ), the highest Brazilian appeal court, by unanimous vote (3x0), denied the claim for indemnification [relief, compensation] for moral damages brought against the cigarette manufacturer Souza Cruz, the Brazilian branch of British American Tobacco Group - BAT.

The suit had been brought by family members of ex-smoker Vitorino Mattiazzi, in the estimated amount of 490,000 reais (US$ 280,000).

This was the first time the Brazilian Superior Court of Justice reviewed the merits of a lawsuit for indemnification for damages attributed to the consumption of cigarettes, and their decision confirmed the majority of the rulings adopted by Brazilian courts in first and second instances in decisions already handed down in similar cases. In all 290 lawsuits with final rulings in Brazil, such indemnification claims were denied.

The case that was reviewed by the Superior Court of Justice began in 2005 in the city of Cerro Largo (state of Rio Grande do Sul, 490 km from capital Porto Alegre), when the widow of Vitorino Mattiazzi filed a lawsuit alleging that her husband was unaware of the risks associated with smoking, had been induced by misleading advertising and had died from respiratory illnesses which the widow attributed, exclusively, to the consumption of cigarettes manufactured by Souza Cruz. As redress, she claimed indemnification for moral damages in an amount greater than 2,000 minimum wages.

At first instance, Judge Guilherme Eugenio Mafassioli Correa did not accept the argument of "lack of awareness" of the risks associated with smoking, pointing out that the sale of cigarettes is legal and that it is not possible to prove that the person exclusively smoked products manufactured by Souza Cruz, since these are not the only cigarettes available on the market.

Further, he emphasized that "there is no way to hold third parties liable for a decision that is eminently one's own, individual, as is the case here. Even if it were questions of status when Vitorino began smoking, he could have opted not to smoke. Certainly there are people who did so."

In one of the lower court decisions the reporting Justice mentioned that the cigarette advertising does not interfere in the free will of the consumers, who may choose to smoke or not. These, among other factors, according to the Justices, exclude the manufacturers from liability for alleged damages associated with smoking.

Reference: Brazil's Appeals Court Denies Moral Damages Against Cigarette Maker, BrazziMag, 4/29/2010.