New Alternative Causation for Pharma Defendants in Surgeon General’s Smoking Report?

Last week, the Office of the Surgeon General of the U.S. Department of Health and Human Services released a new report on the health consequences of smoking on the 50th anniversary of the first Surgeon General’s report on smoking and health.  The report is available, click here.

The 2014 report – entitled “The Health Consequences of Smoking—50 Years of Progress” – adds colorectal and liver cancer to the list of cancers causally linked to smoking. The report also adds several non-cancers to the list of chronic diseases causally linked to smoking, including diabetes, erectile dysfunction, ectopic pregnancy, age-related macular degeneration, rheumatoid arthritis, and impaired immune function. While the report does not break new science on these diseases, it seeks to serve as a broad review of the scientific literature.

Lawsuits related to the health consequences of smoking are not generally within the scope of this blog. So, why do we want to write about it?

Because potential alternative causes of the disease or condition involved is likely a key issue in pharmaceutical product liability litigations, as well as in medical device litigations. So, to the extent that the Surgeon General’s report identifies diseases that a plaintiff is seeking to blame on the use of a particular drug or device, this report may add strength to an alternative causation defense if that plaintiff was or is a smoker.

For example, the report includes diabetes as a chronic disease linked to smoking. However, diabetes has also been claimed as an injury allegedly suffered by plaintiffs who used statins and atypical antipsychotics. To the extent that any such plaintiff was also a smoker, this report could be used to bolster the defense that that plaintiff’s diabetes was not caused by the drug, but rather by smoking.

This is but one possible example; the list of cancers and chronic illnesses linked to smoking is long, and the list of diseases claimed by plaintiffs in pharmaceutical and medical device cases is even longer. Prudence and best practices dictate that, when defending a pharmaceutical or medical device product liability claim involving a smoking plaintiff, a careful evaluation be done of the potential for an alternative causation defense. In the right circumstances, the 2014 report from the Surgeon General may be a helpful boost for that effort.

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