Taking Subrogation Seriously: The Blue Cross-Blue Shield Tobacco Litigation Reconsidered

Abstract

Though noteworthy, the award was lower than might have been anticipated in light of the finding of liability.The jury rejected the conclusion that the tobacco companies had engaged in fraud or racketeering, and so did not award punitive damages.The absence of a racketeering finding foreclosed a treble damages award under the Racketeer Influenced Corrupt Organizations Act ("RICO'), 18 U.S.C. § § 1961-1968 (1994).Empire prevailed on the claims that the companies violated New York consumer protection laws and engaged m unfair and deceptive business practices.Media Backgrounder: Brooklyn Jury Shatters Big Tobacco's Winning Streak, Tobacco Products Liability Project, at http://www.tobacco.neu.edu/PRlBackgrounders/empire-.htm(last visited June 4, 2001).The relatively modest amount awarded, especially on the subrogation claim, supports the conclusion that even successful individual claims by smokers are not necessarily big money cases, and may need to be pooled in some fashion in order to justify the high litigation expenses they entail.See Mark C. Weber, Thanks for Not Suing: The Prospects for State Court Class Action Litigation Over Tobacco Injuries, 33 GA.L. REV.979, 1009-10 (1999) (discussing need to pool expenses in light of reductions to recovery

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