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STATE OF WASHINGTON IN THE SUPERIOR COURT FOR THE COUNTY OF KING
TABLE OF CONTENTS NOW COMES the Plaintiff herein, Victor M. Eskenazi, a living, natural born individual, in his own Proper Person, reserving the right to use counsel and the right to amend this complaint at any time in these proceedings, and Complains against the Defendant herein, respectfully represents unto this Honorable Court as follows: I. INTRODUCTION 2. The violations alleged herein have been and are being committed in whole or in part, in King County and elsewhere throughout the State of Washington. 3. This case challenges a massive illegal conspiracy perpetrated by the Defendant, State of Washington. That conspiracy includes a host of unlawful, unfair and deceptive acts, including without limitation the following:
3. Defendant willingly provided much of the evidence, confessions against interest. (doc. no 96-2-15056-8 SEA) 4. As a direct, foreseeable result of these and other actions, Plaintiff, as well as the People of the State of Washington have suffered enormous damages. This complaint against the State of Washington, and the State's complaint against the Tobacco Industry are the results of this breach and other actions. 5. Plaintiff seeks to have the use of tobacco products recognized as a hazard under the WASHINGTON INDUSTRIAL SAFETY AND HEALTH ACT OF 1973 (WISHA) and that the Court order the hazardous conduct of tobacco use completely eliminated from all employers' premises pursuant to the laws and evidence sited herein. II. THE DEFENDANTS' UNLAWFUL CONDUCT 2. The State has long known that tobacco products contain large amounts of nicotine - a highly addictive substance - as well as numerous carcinogens and other harmful elements. The State further has known that tobacco products were addicting, extremely dangerous to the health of tobacco users, and would cause adverse health effects to virtually all persons who used them. This information became public knowledge with the widely publicized publication "Smoking and Health: The Report of the Advisory Committee to the Surgeon General of the Public Health Service", 1964. 3. The State continues to allow the use of this hazardous product in the workplace. III. THE DAMAGES CAUSED BY DEFENDANTS' UNLAWFUL CONDUCT 1. The intended and foreseeable effects of the conspiracy are several and far-reaching, including but not limited to, increased medical costs to others, including the People of the State of Washington. 2. A foreseeable consequence of defendants' conduct has been to unjustly enrich the Tobacco Industry at the expense of Washington's health care system, the state health care authority, state workers' compensation funds, and ultimately, all Washington residents and taxpayers (see doc. No 96-2-15056-8 SEA):
5. In 1990 alone, Washington's excess health care costs caused by Defendant's conduct were approximately $706 million. These excess costs are distributed as follows: Medicare - 20.5%; Medicaid - 10.3%; self-pay, including by the state for its employees - 21.0%; private insurance - 33.4%; other federal funds - 9.6%; other state funds - 3.2%; and other funds - 2.2%. These costs are the proximate result of the course of conduct described in this complaint. But for Defendant's refusal to enforce Defendants own law these costs would not have existed. IV. CONSPIRACY ALLEGATIONS V. FACTUAL ALLEGATIONS
VI. STATE'S FORMAL ACKNOWLEDGEMENT OF TOBACCO HAZARDS 1. The Defendant acknowledges the following: (see doc. No 96-2-15056-8 SEA)
VII. THE HUMAN TOLL OF CIGARETTE SMOKING
VIII. THE ECONOMIC TOLL OF TOBACCO USE
IX. WASHINGTON INDUSTRIAL SAFETY AND HEALTH ACT OF 1973 2. WISHA shall equal or exceed the standards prescribed by the Occupational Safety and Health Act of 1970 (OSHA). (Public Law 91-596, 84 Stat. 1590). (emphasis added) 3. Each employer shall furnish to each of his employees employment and a place of employment which are FREE FROM RECOGNIZED HAZARDS that are causing or are likely to cause death or serious physical harm to his employees. (Public Law 91-596 section 5(a), 84 stat. 1593). (emphasis added) 4. WISHA shall apply with respect to employment in ANY work place within the state. RCW 49.17.030 (emphasis added). 5. The director shall provide for the promulgation of health and safety standards and the control of conditions in ALL work places concerning gases, vapors, dust, or other airborne particles, toxic materials, or harmful physical agents which shall set a standard which most adequately assures, to the extent feasible ... that NO employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life; any such standards shall REQUIRE where appropriate the use of protective devices or equipment and for MONITORING or MEASURING any such gases, vapors, dust, or other airborne particles, toxic materials, or harmful physical agents. (RCW 49.17.050(4)). (emphasis added). 6. The evidence is clear and overwhelming. Cigarette smoke contaminates and pollutes the air, creating a health hazard not merely to the smoker but to all those around...who must rely upon the same air supply...It is reasonable to expect an employer to foresee health consequences and to impose upon him a duty to abate the hazard... (Shimp v. New Jersey Bell Telephone Company, 145 N.J.Super. 516, 368 A.2d 408, Dec. 20, 1976). 7. The following is listed in the table of Permissible Exposure Limits ("PEL"), WAC 296-62-07515, Table 1(emphasis added):
8. Listed substances followed by the designation 'skin' refer to the potential contribution to the overall exposure by the cutaneous route including mucous membranes and eye, either by airborne, or more particularly, by direct contact with the substance ... MEASURES FOR THE PREVENTION OF CUTANEOUS ABSORPTION SO THAT THE PERMISSIBLE LIMIT IS NOT INVALIDATED SHALL BE TAKEN 9. One cigarette typically exposes the smoker to more than twice the Permissible Exposure Limit of nicotine. (exhibit H). 10. Nicotine, the most powerful pharmacological agent in cigarette smoke, has been proposed as the primary incentive in smoking and may be instrumental in the establishment of the smoking habit. (U. S. Department of Health, Education, and Welfare, Office of Smoking and Health, Smoking and Health: A report of the Surgeon General, note 24 at 1-32 (1979)). 11. One cigarette exposes the smoker to exceed the Permissible Exposure Limits of at least 9 other substances as shown below:
12. Chemical agents shall be controlled in such a manner that the workers EXPOSURE SHALL NOT EXCEED the applicable limits in WAC 296-62-075 through 296-62-07515 (emphasis added). 13. In the fields, tobacco is drenched with insecticides and fertilizers. After harvest, it is dried in barns where it is treated for protection against tobacco beetle infestation. At the factory, tobacco leaves are mixed with stems and scraps and pulverized into a mash, into which artificial flavorings and additives that contain additional doses of nicotine are incorporated, dried, and puffed with freon to look like real tobacco shreds. Approximately 8% of the weight of tobacco in a cigarette is flavorant additives, some of which are carcinogens or co-carcinogens. Cigarette smoke also contains more than 4,000 different chemical compounds, including at least 43 proven carcinogens. Some of the worst are: carbon monoxide, the compound in car exhaust that kills in suicides; hydrogen cyanide, which is the lethal substance of the gas chamber; formaldehyde, used for embalming; and nicotine, an addictive poison so powerful that it has been outlawed for use as an insecticide. (see doc. No 96-2-15056-8 SEA, VII) 14. A permissible limit of 10 milligrams per cubic meter, of total dust <1% SiO2, is mandatory for substances in these categories and for which no specific permissible limits have been assigned... (WAC 296-62-07509). 15. Air contaminants MUST BE MONITORED. (WAC 296-62-075) (emphasis added). 16. The department [of labor and industries] shall be the sole and paramount administrative agency responsible for the administration of the provisions of this chapter... (RCW 49.17.270). 17. Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct. Public Law 91-596, § 5(b), 84 Stat. 1593. X. JUDICIAL OPINIONS
2. The employer must "prevent and suppress" hazards.
3. ... Cigarette smoke...is not a natural by-product of ... business ... There is no necessity to fill the air with tobacco smoke in order to carry on ... business, so it cannot be regarded as an occupational hazard which...[the employee] has voluntarily assumed in pursuing a career ... ... [when employees smoke, others are] confronted with a work environment contaminated by the presence of an unnecessary toxic substance.
4. [cigarettes are] wholly noxious and deleterious to health. Their use is always harmful, never beneficial. They possess no virtue, but are inherently bad, and bad only. They find no true commendation for merit or usefulness in any sphere. On the contrary, they are widely condemned as pernicious altogether. Beyond question, their every tendency is towards the impairment of physical health and mental vigor. There is no proof in the record as to the character of cigarettes; yet their character is so well and so generally known to be that stated above that the courts are authorized to take judicial cognizance of the fact. No particular proof is required in regard to those facts, which, by human observation and experience, have become well and generally known to be true (Schollenberger v. Pennsylvania, 171 U. S. 1, 18 Sup. Ct. 757; 1 Greenl. Ev. § 6; 1 Whart. Ev. § 282; 1 Jones, Ev. § 129, 134; Lanfear v. Mestier, 18 La. Ann. 497, 89 Am. Dec. 658, and note 693; State v. Goyette, 11 R.I. 592; Watson v. State, 55 Ala. 158); nor is it essential that they shall have been formally recorded in written history or science to entitle courts to take judicial notice of them. Boullemet v. State, 28 Ala. 83; 12 Am. & Eng. Enc. Law, 199. It is a part of the history of the organization of the volunteer army in the United States during the present year that large numbers of men, otherwise capable, had rendered themselves unfit for service by the use of cigarettes, and that, among the applicants who were addicted to the use of cigarettes, more were rejected by examining physicians on account of disabilities thus caused than for any other, and perhaps, every other, reason. It is also a part of the unwritten history of the legislation in question that it was based upon and brought to passage by the firm conviction in the minds of legislators and of the public that cigarettes are wholly noxious and deleterious. The enactment was made upon this idea, and alone for the protection of the people of the state from an unmitigated evil. Such being the nature of cigarettes...
5. [A]n employer's compliance with OSHA's standards [although Defendant herein does not comply] will not discharge his statutory obligation to provide employees with safeguards against recognized hazards. We conclude that the Act does not empower the Secretary, and hence OSHA, to absolve employers who observe specific standards from duties otherwise imposed on them by the general duty clause. [W]hen an employer is aware of a hazard that is not in fact addressed by a specific standard, then of necessity, that standard cannot be deemed to have preempted his obligation under the general duty clause.
6. The intent of Congress "...to assure...safe and healthful working conditions...", 29 U.S.C. § 651(b) is CLEAR AND UNAMBIGUOUS: [i]f the intent of Congress is clear, that is the end of the matter, for the court...must give effect to the unambiguously expressed intent of Congress
7. Although some will find ambiguity in a 'No Smoking' sign, we find none in the language before us...[W]e find the language clear". Section 5(a)(1) [of OSHA] clearly and unambiguously imposes on an employer a general duty to provide for the safety of his employees that is distinct and separate from the employer's duty, under section 5(a)(2) to comply with administrative safety standards promulgated under section 6 of the Act.
XI. CAUSES OF ACTION Defendant's conspiracy and illegal conduct is ongoing and continues to the present. SECOND CAUSE OF ACTION. Increased medical costs borne by the State of Washington are a direct result of the State of Washington's intentional unlawful conduct. THIRD CAUSE OF ACTION. Washington's injury is inextricably intertwined with defendant's malfeasance and gross negligence. FOURTH CAUSE OF ACTION. Specifically with the passage of WISHA, in 1973, the defendants assumed a special duty to protect the public health. FIFTH CAUSE OF ACTION. Plaintiff repeats and realleges each allegation set forth above. With the passage of WISHA in 1973, Defendant publicly represented that the State of Washington was undertaking to act on behalf of the public's health for every working man and woman in the state of Washington. SIXTH CAUSE OF ACTION. Defendant's continuing conduct is an intentional breach of its publicly announced special duty. SEVENTH CAUSE OF ACTION. Defendant failed to exercise reasonable care in the performance of its duty. Further, Defendant knowingly suppressed information that would have assisted any effort to advance the public's health as it relates to tobacco usage. This has resulted in a detrimental impact to the public health needs of Washington residents and has cost the Taxpayers of the State of Washington increased expenditures in public health that would not have been otherwise required if Defendant had exercised reasonable care. EIGHTH CAUSE OF ACTION. As a direct and proximate cause of Defendant's breach, plaintiff suffered and will continue to suffer substantial injuries and damages. NINTH CAUSE OF ACTION. Plaintiff repeats and realleges each allegation set forth above. The conduct described constitutes an intentional breach of a voluntarily assumed special duty for which Defendant is liable. TENTH CAUSE OF ACTION. Defendant's unlawful conduct will continue unless the relief prayed for in this Complaint is granted. ELEVENTH CAUSE OF ACTION. The State has a long-standing practice of gross negligence in regard to public health in the matters pertaining to the hazards of tobacco products. TWELFTH CAUSE OF ACTION. The State continues its practice of gross negligence in regard to public health in the matters pertaining to the hazards of tobacco products. THIRTEENTH CAUSE OF ACTION. That Plaintiff has suffered loss of wages as a result of said gross negligence. FOURTEENTH CAUSE OF ACTION. As a direct and proximate result of the wrongful conduct alleged above, Defendant has unreasonably injured and endangered the comfort, repose, health and safety of the residents of the State of Washington. Defendant's acts have caused damage to the public, the public safety and the general welfare of citizens of Washington. FIFTEENTH CAUSE OF ACTION. Defendant's conduct has created a health crisis which has required Plaintiff and the People of the State of Washington to assume the financial burden of smoking related medical costs, a burden which should not have existed. SIXTEENTH CAUSE OF ACTION. Defendant entered into a conspiracy to create the impression that smoking in the workplace is legal. XII. RELIEF SOUGHT 2. That the Court adjudge and decree that such conduct is unlawful in the state of Washington. 3. That the Court enjoin and restrain defendant, its officers, agents servants and employees, and those in active concert or participation with them, from continuing or engaging in such conduct or other conduct having similar purpose. 4. That pursuant to RCW 19.86.080 and RCW 19.86.090, plaintiff have and recover from defendant the costs of this action, including a reasonable attorney's fee. 5. That the Court order the State of Washington, pursuant to the laws and evidence herein:
6. For such other relief as the Court may deem proper to fully and effectively dissipate the effects of the conduct herein complained of or which otherwise may seem proper to the Court. Dated this 28th day of September, 1998, Victor M. Eskenazi |
