South Korea - appellate court upholds lower court ruling rejecting claims of compensation for smoking lung cancer patients..

February 16, 2011 - An appellate court upheld a lower court ruling Thursday that rejected claims for compensation by lung cancer patients who said long-time smoking caused the disease.

A group of 31 lung cancer patients and their families launched the damages suit in 1999 against the state and KT&G (KT&G, the largest tobacco company in Korea), arguing long-time smoking caused their fatal disease and that the company did not fulfill its duty to inform them of the dangers of smoking by concealing most of its manufacturing records.

After taking nearly seven years to deliberate on the case, the Seoul Central District Court in January 2007 rejected the plaintiffs' claim, citing insufficient evidence to prove a direct link between their disease and smoking as well as flawed products. The court said KT&G did not violate its obligation as it has attached a warning message on its cigarette packs since the 1970s.

Although the court does acknowledge a connection between smoking and lung cancer, there are no sufficient grounds to prove the defendants' illegal conduct in detail," the Seoul High Court said in a ruling. "Although this case did not ask the company to take the legal responsibility, the ruling left room for future damages suits to additionally prove the
harmful effects of smoking case by case."

The second round of the litigation was centered on the cause-and-effect relationship between smoking and lung cancer; whether KT&G uses chemical addictives to make it hard for smokers to quit; and whether the firm has fulfilled its duty of informing the general public of the harmful effects of smoking.

However, the court recognized the cause-and-effect relationship between smoking and lung cancer in line with the first verdict in a case filed against KT&G. The latest ruling left the door open for plaintiffs to get possible compensation in the future should they come up with more convincing evidence during additional litigation. But the judge added the plaintiffs may “get compensation if they file an additional damages suit against KT&G with stronger evidence.” The first ruling in the case in 2006 completely denied the possibility of compensation, saying it was hard to see the habit as the exclusive factor causing the disease.

The judge suggested KT&G support anti-smoking campaigns and set up a foundation to run the programs. Last year, the plaintiffs proposed dropping the suit, if KT&G spent 610 billion won ($545 million) over the next 20 years establishing an anti-smoking foundation and a variety of anti-smoking campaigns. But the company refused to do so, citing negative impacts on shareholders. According to the National Cancer Center, nearly 67,000 people died of cancer in 2007. Of these, 12.1 percent had lung cancer.

References: Damages rejected in tobacco suit by Park Si-soo, The Korea Times, 2/15/2011; (LEAD) Appellate court turns down damages suit over tobacco danger by Kim Eun-jung (ejkim@yna.co.kr), YonhapNews.co.kr, 2/15/2011.

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