Defense on Guintos Motion: “Enough is Enough”

October 9, 2005 3:23 pm by Gene Borio

On October 6, beginning with the sentence “Enough is enough,” Defense filed an 10-page opposition to the Guinto motion to intervene. You wouldn’t have thought the Guinto motion needed such a strict, 10-page legal rebuttal, but this Defense is not in the habit of leaving a single t uncrossed or i undotted.

Within the opposition is a handy tally of the various intervenor filings, which sums up:

“In all eight different amicus briefs were submitted on behalf of more than 50 outside entities.”

Defense also recounts the Guinto’s considerable journeys in the legal system, ie, 2 Massachusetts lawsuits, one of which even resulted in their appeal to the Supreme Court (denied). Some of the Guinto’s relevant legal documents are appended to the filing.

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Full text of

Defense Opposition to the Guinto Motion Oct. 6, 2005

Guinto Complaint (Sept. 22, 2005)

Here is the link to the full Guinto Motion to Intervene (Sept. 22, 2005)

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Defense Opposition to the Guinto Motion Oct. 6, 2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 99-CV-2496 (GK)

Next Scheduled Court Appearance: None

UNITED STATES OF AMERICA,

Plaintiff,

and

TOBACCO-FREE KIDS ACTION FUND, et al.,

Plaintiff-Intervenors,

v.

PHILIP MORRIS USA INC. (f/k/a PHILIP MORRIS INCORPORATED), et al.,

Defendants.

JOINT DEFENDANTS’ OPPOSITION TO MOTION TO INTERVENE BY THE GUINTO FAMILY

Enough is enough. Defendants request this Court to deny the eleventh hour pro se motion to intervene on behalf of a five-member Massachusetts family (the “Guintos”) because (1) the motion is untimely, where the extensive post-trial briefing in this case has already been completed, and there is no reason that the Guintos could not have filed their motion to intervene months (or even years) ago; (2) the Guintos have previously filed two unsuccessful lawsuits against Philip Morris USA (the second of which was dismissed on res judicata grounds) and thus have no legitimate interest or right to claim relief in this or any other action; and (3) the Guintos have not identified any issue that they seek to present in this case which has not been amply presented by the existing parties and amici in the 1,000 plus pages of post-trial briefing that already has been submitted.

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FACTS

A. Status of the Case

This lawsuit was filed more than six years ago on September 22, 1999. After several years of pretrial discovery, the case went to trial on September 21, 2004, and the liability phase of the trial was completed on April 25, 2005. On February 4, 2005, the Court of Appeals for the District of Columbia Circuit issued its ruling in United States v. Philip Morris, U.S.A., Inc., 396 F.3d 1190 (D.C. Cir. 2005), which sharply limited the availability of many of the specific remedies sought by the Government in this case, as this Court recognized in Order #886. The remedies phase of the trial began on May 2, 2005 and concluded in early June. During closing arguments on June 7, 2005, the Government limited the scope of the smoking cessation remedy that had been presented by its expert (Dr. Fiore) at trial, in an (unconvincing) attempt to bring that proposed remedy into compliance with the Court of Appeals’ ruling. Thereafter, the Government set forth in detail the remedies that it was seeking in the case in a proposed order dated June 27, 2005.

Two days later, on June 29, 2005, a group of six public health organizations (led by Tobacco-Free Kids Action Fund) filed a request to intervene on the ground that the Government’s limitation on the remedies it had sought during trial — and particularly the downscaled cessation remedy — meant that the Government no longer adequately represented their interests. Defendants opposed the motion to intervene, but this Court granted it, noting that the intervenors had filed just two days after the Government filed its proposed remedies order and that the “limited parameters” of the intervention were “directly responsive to events which immediately preceded its filing.” Memorandum Opinion at 4 (July 22, 2005) (“7/22/05 Order”).

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This Court’s order granting intervention to the Tobacco-Free Kids group was followed by a rash of proposed amicus filings. On September 1, 2005, this Court entered Order #1005, stating that any additional requests to submit amicus briefs must be filed by September 12, 2005.

In all eight different amicus briefs were submitted on behalf of more than 50 outside entities.1

The extensive post-trial briefing schedule is now complete, and the following 18 posttrial briefs (totaling more than 1,000 pages) have now been submitted to the Court:

DATE TITLE LENGTH

1. 08/24/05

Post-Trial Brief of the United States of America

272 pages

2. 08/24/05

Brief of Amicus Curiae the Regents of the University of California in Support of the United States’ Proposed Final Judgment and Order

17 pages

3. 08/24/05

Brief of Amicus Curiae The Citizens’ Commission to Protect the Truth in Support of Position of Plaintiff United States of America

29 pages

4. 08/26/05

Brief of Amici Curiae Essential Action, the City and County of San Francisco, the Asian-Pacific Islander American Health Forum, the San Francisco African American Tobacco Free Project, and the Black Network in Children’s Emotional Health in Support of the Position of the Plaintiff United States of America Regarding Remedies

27 pages

5. 09/01/05

Brief of Amicus Curiae Tobacco Control Legal Consortium and Others in Support of the Positions of the Plaintiff United States of America and Intervenors Regarding Remedies

26 pages

6. 09/01/05

Plaintiff-Intervenors’ Post-Trial Brief

112 pages

7. 09/02/05

Brief of Amicus Curiae Lung Cancer Alliance

29 pages

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1 The Court rejected one of the eight proposed amicus briefs (although amici have sought reconsideration) and the Court has not yet ruled on two others.

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DATE TITLE LENGTH

Regarding Remedies

8. 09/07/05

Post-Trial Brief of Joint Defendants on Affirmative Defenses

33 pages

9. 09/07/05

Post-Trial Brief of Defendant Liggett Group Inc.

13 pages

10. 09/07/05

Post-Trial Brief of Joint Defendants

237 pages

11. 09/12/05

Brief of Amici Curiae States of Arkansas, Connecticut, Hawaii, Idaho, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Tennessee, Vermont, Washington, Wisconsin, Wyoming, and the District of Columbia in Support of the Position of the Plaintiff United States of America Regarding Remedies

7 pages

12. 09/14/05

Joint Defendants’ Response to Plaintiff-Intervenors’ Post-Trial Brief

23 pages

13. 09/19/05 United States’ Post-Trial Brief in Opposition to Post- Trial Brief of Joint Defendants on Affirmative Defenses

27 pages

14. 09/19/05 Reply Memorandum in Support of the Post-Trial Brief of the United States of America

102 pages

15. 09/26/05 Reply Memorandum in Support of the Post-Trial Brief of the Plaintiff-Intervenors

26 pages

16. 09/26/05 Joint Defendants’ Response to the Briefs of Amici Curiae

43 pages

17. 09/26/05 United States’ Response to the Briefs of Amicus Curiae

23 pages

18. 09/29/05

Joint Defendants’ Post-Trial Reply Brief in Support of their Affirmative Defenses

21 pages

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B. The Guintos’ Intervention Request

The Guintos are a family of five individuals that resides in Everett, Massachusetts. Mary Guinto (wife of Raymond and mother of Michael, Daniel, and Julie) alleges that she began to smoke cigarettes in 1994 while she was confined to a hospital when another patient introduced her to cigarettes. The Guintos claim that Mary is now addicted to cigarettes and unable to quit. In November 1997, the Guintos filed a lawsuit against PM USA in Massachusettes federal court based on these allegations. (Ex. 1). The Court entered summary judgment for PM USA on August 27, 1998. (Ex. 2). The First Circuit affirmed on March 30, 1999 (Ex. 3) and denied rehearing on April 21, 1999. (Ex. 4).

Six months later, the Guintos filed an action in Massachusetts state court based on the same allegations as the dismissed federal action. (Ex. 5). PM USA removed that case to federal court (Ex. 6) where the District Court granted a motion to dismiss on res judicata grounds. (Ex.

7).

Three weeks after dismissal of the second lawsuit, the Guintos moved in the District Court with respect to the first lawsuit for relief from judgment and for leave to amend the complaint. That motion was denied on February 3, 2000 (Ex. 8), and the First Circuit affirmed on September 13, 2000. (Ex. 9). The Guintos then sought a writ of certiorari to the United States Supreme Court, which was denied on April 2, 2001. (Ex. 10).

Not to be dissuaded, the Guintos moved in the District Court in October 2003 to re-open the case, a motion which was denied on October 22, 2003. (Ex. 11).

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On September 26, 20052 — five days after the Government and the Intervenors filed their post-trial reply briefs and the same day that the Government and the Defendants submitted their responses to the various amicus briefs — the Guintos filed their request to intervene in this case.

The motion should be denied on several grounds.


ARGUMENT

I. THE REQUEST FOR INTERVENTION IS UNTIMELY

First (and dispositively), the request for intervention is untimely. This lawsuit was filed more than six years ago and there is no reason that the Guintos could not have filed their intervention motion years ago as well. Moreover — even if this Court were of the view that the adjustments to remedy adopted by the Government during closing argument could somehow justify a delay in intervention3 — that adjustment occurred nearly four months ago. The Guintos offer no justification for their decision to wait four months to file their intervention request while the existing parties worked diligently to complete all post-trial briefing.4 Thus, this motion is of a piece with the mid-trial motion to intervene that the Court denied five weeks into trial as

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2 Although the motion is dated September 22, 2005, it does not appear to have been filed until September 26.

3 Defendants continue to disagree with the argument that the Government’s adjustment to its proposed remedies could justify a delay in intervention for the reasons set forth in Joint Defendants’ Opposition to Motion to Intervene by the Tobacco-Free Kids Action Fund, et al., dated July 11, 2005. Whatever interests the Guintos possess they have possessed from the outset of this case.

4 The only justification offered by the Guinto Family for the tardiness of their filing is undecipherable and is quoted in full below: “Here, the proposed intervenors could not have requested leave from this Court any earlier in the proceedings, less than five days after the filing of the Reply Post-Trial Brief, as soon as possible, so the intervenors did not intervene with the Parties. Therefore, the intervenors — who fervently believes that the request by the Government characterized as the program, as ‘forward-looking and aimed at future violations’ and ‘offer[ing] a meaningful way for the court to prevent and restrain future wrongful conduct by defendants’ is what is needed to make this remedy effective to meet the intervenors’ interests — have acted as quickly as possible to intervene in this action.” Guinto Br. at 5.

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“untimely and without merit.” Order Denying Crewe Motion to Intervene (Nov. 5, 2004). The Guintos’ “interest” in this lawsuit is no different now than it was when this lawsuit was filed in 1999; certainly it is no different than it was four months ago when the Tobacco Free Kids Group intervened. Moreover, as this Court recognized in its order granting that previous intervention motion, both the “purpose for which intervention is sought” and “the necessity for intervention as a means of preserving the applicant’s rights” are relevant to the timeliness of an intervention motion. 7/22/05 Order at 4. Here, the only stated purpose of the intervention is to comment on the appropriate “Imposition of remedies.” Guinto Br. at 5. But the time for such comment has passed. Nor do the Guintos explain how their intervention is somehow necessary to protect their “rights.” In fact, (1) as described below, the courts have already ruled twice that the Guintos do not have any right to relief; and (2) in any event, any conceivable “rights” are more than adequately protected by the existing parties — including not only the United States Government but also the six existing intervenors who have already intervened specifically to address the issue of remedies.

II. THE GUINTOS HAVE NO LEGALLY COGNIZABLE INTEREST IN THE OUTCOME OF THIS PROCEEDING

It is well established that an intervenor must possess a “litigable interest” in the existing proceeding. Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967); see also New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464 (5th Cir. 1984) (intervenor must assert “a claim as to which the applicant is a real party in interest” — i.e., “a ‘direct, substantial, legally protectable interest in the proceedings.’”).

As described above, the Guintos have already litigated extensively (and unsuccessfully) against PM USA for many years. Those lawsuits have resulted in judgments in favor of PM

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USA and have been affirmed on appeal. Thus — even apart from the fact that private parties such as the Guintos have no standing to seek equitable relief under 18 U.S.C. § 1964(a) — the Guintos are barred from seeking equitable relief against PM USA in this or any other action.

In effect, having been unsuccessful in their attempt to sue PM USA in Massachusetts federal and state court, the Guintos now seek to relitigate their flawed claims yet again in the guise of intervention in the Government’s RICO lawsuit.5 They are seeking to achieve relief here that they were unable to obtain in those other lawsuits. It would be both inefficient and unfair to permit unsuccessful litigants to effectively eviscerate the judgments against them by engaging in collateral intervention proceedings.

Moreover, even apart from the absence of a legally cognizable interest by the Guintos in this proceeding, they have not shown that any conceivable interest that they possess will be “impaired or impeded” by the outcome of this case. Fed. R. Civ. P. 24(a)(2). To be sure, the Guintos assert that they are unhappy with the roster of remedies now advanced by the Government, but “mere failure to secure better remedies for a third party . . . is not a qualifying impairment.” Mass. Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776, 780 (D.C. Cir. 1997). In any event, they nowhere explain why the prohibitory injunctions and smoking cessation relief requested by the Government — or by the existing intervenors — would not be ample to satisfy any conceivable “interest” they may possess.6

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5 The Guintos’ proposed complaint does not — as required by Rule 24(c) — set forth the “claim or defense for which intervention is sought” but merely repeats the factual allegations that were the subject of the Guinitos’ previous lawsuits and states that they seek “the opportunity to submit a brief concerning the issue of permissible and appropriate remedies.” Compl., at 1. They further state that this “lawsuit is pertinent to the goals of the Guintos family,” such as to “free the Guintos from tobacco addiction” and “to protect the Guintos Family rights to breathe smoke-free air in the house.” Id. at 4.

6 The Guintos’ explanation of their supposed “interest” in the lawsuit is so cribbed from the earlier motion filed by the original intervenors that they argue that they satisfy the “requirement

Footnote continued on next page

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III. ANY INTERESTS OF THE GUINTOS ARE MORE THAN ADEQUATELY PROTECTED BY THE EXISTING PARTIES

Finally, even if the Guintos had a legally protectable interest in this proceeding, the Guintos cannot show that any such interest is not “adequately represented by existing parties.” Fed. R. Civ. P. 24(a)(2). Even apart from the “presumption of adequate representation [that] generally arises when the representative is a governmental body,”7 the Guintos have not even attempted to make an argument that their interests are not adequately protected by the existing intervenors (who, like the Guintos, sought to intervene due to perceived deficiencies in the Government’s position or remedies). But it is plain on the face of Rule 24 that intervention is not appropriate when any of the existing parties (which obviously includes pre-existing intervenors) will adequately protect the interests of the would-be intervenor. Fed. R. Civ. P. 24(a).

Indeed, if the Guintos’ motion were allowed it would follow that any smoker in the United States (or at least any smoker who expressed a desire to quit) could intervene in this lawsuit to protect his or her “interests.” Nor could such logic be limited to this lawsuit: it would apply to intervention by interested citizens in any government enforcement proceeding. Such a result is not only legally unsupportable but would produce a practical nightmare in virtually any

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Footnote continued from previous page

for associational standing” (Guinto Br. at 10) — a requirement which obviously has no application to individuals such as the members of the Guintos family.

7 Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3d Cir. 1976); see also Envtl. Def. Fund, Inc. v. Higginson, 631 F.2d 738, 740 (D.C. Cir. 1979) (where government is a party, applicant “must overcome this presumption of adequate representation”); Hobson v. Hanson, 44 F.R.D. 18, 30 (D.D.C. 1968) (“representation by the governmental authorities is considered adequate in the absence of gross negligence or bad faith on their part”) (quoting 4 Moore’s Federal Practice ¶ 24.08, at 43 (2d ed. 1963)).

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enforcement proceeding initiated by the Government when, as here, zealous third-party groups or citizens arguably impacted by the defendants’ conduct sought to second guess the litigation strategy of Government lawyers.

IV. PERMISSIVE INTERVENTION SHOULD ALSO BE DENIED

The grounds for denying intervention as of right — particularly untimeliness — apply equally to the request for permissive intervention, which should also be denied. Moreover, Rule 24(b)(2) expressly requires that the applicant have a “claim.” Here, as described above, the Guintos have no claim because any conceivable claim is barred by res judicata.8 And intervention should also be denied because it would “unduly delay or prejudice the adjudication of the rights of the original parties,” Fed. R. Civ. P. 24(b) for the reasons set forth above.

CONCLUSION

For the foregoing reasons, Defendants request the Court to deny the Guintos’ untimely motion to intervene.

DATED: October 6, 2005

Respectfully submitted,

/s/ Matthew A. Campbell __________________

Timothy M. Broas (D.C. Bar No. 391145)

WINSTON & STRAWN LLP

1700 K Street, N.W.

Washington, D.C. 20006-3817

Telephone: (202) 282-5000

Fax: (202) 282-5100

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8 Of course, a RICO claim by the Guintos would be barred under principles of res judicata even though they chose not to assert a RICO claim in their first two lawsuits. E.g., Saud v. Bank of New York, 929 F.2d 916, 919 (2d Cir. 1991) (“it does not matter that a RICO claim was not expressly asserted in [the first] action, ‘for it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory upon which a litigant relies’”).

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Dan K. Webb

Thomas J. Frederick

WINSTON & STRAWN LLP

35 West Wacker Drive

Chicago, Illinois 60601-9703

Telephone: (312) 558-5600

Fax: (312) 558-5700

Theodore V. Wells, Jr. (D.C. Bar No. 468934)

James L. Brochin (D.C. Bar No. 455456)

PAUL, WEISS, RIFKIND, WHARTON &

GARRISON LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Telephone: (212) 373-3000

Fax: (212) 757-3990

Attorneys for Defendants

Altria Group Inc. and Philip Morris USA Inc.

/s/ Matthew A. Campbell __________________

Robert F. McDermott (D.C. Bar No. 261164)

Peter J. Biersteker (D.C. Bar No. 358108)

Jonathan M. Redgrave (D.C. Bar No. 474288)

JONES DAY

51 Louisiana Avenue, N. W.

Washington, D.C. 20001-2113

Telephone: (202) 879-3939

Fax: (202) 626-1700

Robert C. Weber

Paul G. Crist

JONES DAY

North Point

901 Lakeside Avenue

Cleveland, Ohio 44114-1190

Telephone: (216) 586-3939

Fax: (216) 579-0212

Attorneys for Defendant

R. J. Reynolds Tobacco Company

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/s/ Matthew A. Campbell __________________

David E. Mendelson (D.C. Bar No. 471863)

KlRKLAND & ELLIS LLP

655 15th Street, N.W., Suite 1200

Washington, D.C. 20005

Telephone: (202) 879-5000

Fax: (202) 879-5200

David M. Bernick

Stephen R. Patton

Renee D. Honigberg

KIRKLAND & ELLIS LLP

200 East Randolph Drive, Suite 5900

Chicago, Illinois 60601

Telephone: (312) 861-2000

Fax: (312) 861-2200

Attorneys for Defendant

Brown & Williamson Tobacco Holdings, Inc.

/s/ Matthew A. Campbell __________________

Edward C. Schmidt (D.C. Bar No. 199315)

Matthew D. Schwartz (D.C. Bar No. 436619)

THOMPSON COBURN LLP

1909 K Street, N.W. Suite 600

Washington, D.C. 20006

Telephone: (202) 585-6900

Fax: (314) 552-7597

J. William Newbold

Michael B. Minton

Richard P. Cassetta (D.C. Bar No. 457781)

THOMPSON COBURN LLP

One US Bank Plaza, Suite 3500

St. Louis, Missouri 63101-1693

Telephone: (314) 552-6000

Fax: (314) 552-7597

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Gene E. Voigts

Richard L. Gray

SHOOK, HARDY & BACON LLP

2555 Grand Blvd.

Kansas City, Missouri 64108-2613

Telephone: (816) 474-6550

Fax: (816) 421-2708

Attorneys for Defendant

Lorillard Tobacco Company

/s/ Matthew A. Campbell __________________

Bruce G. Sheffler

David L. Wallace

CHADBOURNE & PARKE LLP

30 Rockefeller Plaza, 34th Floor

New York, New York 10112-0219

Telephone: (212) 408-5100

Fax: (212) 541-5369

Attorneys for Defendant

British American Tobacco (Investments)

Limited (f/k/a British-American Tobacco

Company Limited)

/s/ Matthew A. Campbell __________________

Steven Klugman

Steven S. Michaels

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, New York 10022

Telephone: (212) 909-6000

Fax: (212) 909-6836

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J. William Newbold

Michael B. Minton

Richard P. Cassetta (D.C. Bar No. 457781)

Jason A. Wheeler

THOMPSON COBURN

One US Bank Plaza, Suite 3500

St. Louis, Missouri 63101-1693

Telephone: (314) 552-6000

Fax: (314) 552-7000

Attorneys for Defendant

The Council for Tobacco Research-U.S.A., Inc.

/s/ Matthew A. Campbell __________________

James A. Goold

COVINGTON & BURLING

1201 Pennsylvania Avenue, N. W.

Washington, D.C. 20004-2401

Telephone: (202) 662-6000

Fax: (202) 662-6291

Attorneys for Defendant The Tobacco

Institute, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that I caused copies of the foregoing Joint Defendants’ Opposition to Motion to Intervene by the Guinto Family to be served via U.S. Mail on October 6, 2005 on the following parties:

The Guinto Family

2 Elmwood Street

Everett, MA 02149

/s/ Matthew A. Campbell __________________

Copies sent to all other counsel of record via ECF

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Full text of the Guinto Complaint

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 99-CV-2496 (OK)

UNITED STATES OF AMERICA,

Plaintiff,

and

TOBACCO-FREE KIDS ACTION FUND, et al.

Intervenors,

V.

PHILIP MORRIS USA, INC.

f/k/a Philip Morris, Inc. at.

Defendants.

PROPOSED COMPLAINT BY THE GUINTO FAMILY (THE GUINTOS) - FATHER RAY,
MOTHER MARY, CHILDREN MICHAEL, DANIEL, AND JULIE

The proposed intervenors do not seek to present any additional cause of action, evidence in this case, nor do they seek to test any of the evidence that has already been produced in the Governments Amended Complaint. Rather, at this juncture, they seek only the opportunity to submit a brief concerning the issue of permissible and appropriate remedies.

The Guintos have been married for 24 years since 1981. The first 13 years of marriage they did not have cigarette smoking in their lives. The next 11 years of their marriage to 2005 and ongoing has been a battle to stop the Defendants’ Product of cigarette smoking from hurting us. The Guintos have been suffering for 11 years and

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ongoing smoking tobacco cigarettes filled with nicotine addiction injuries. The Guintos smoke even though the Guintos don’t want to smoke.

The defendants’ know the Guintos did not want or mean to start smoking. The
defendants’ have enabled the Parents and their Children injuries to continue for 11 years
and ongoing. The defendants’ have refused to take responsibility for their product. For 8 years and ongoing the defendants’ have refused to help us with our smoking addiction injuries _even though they know we did not want or mean to smoke_ (emphasis added). The Parents and their Children are harmed by their smoking addiction injuries.. The Guinto Family is exposed to the dangers of smoking cigarettes that cause imminent illness, and death. The defendants’ know that they are injuring the Guintos.

It started 11 years ago while a parent while in a hospital was being treated for Post-Traumatic Stress Disorder (PTSD) for an extended amount of time. The patient when not in a sound state of mind was cutting self and other things–the parent during this time began smoking cigarettes. The parent developed a severe cigarette smoking addiction while the patient got better.

In the Guinto Family each member is affected by one another, as children affect
parents and parents affect their children when injured. The Guinto Family did not want or
mean to become a cigarette smoker. So, the Guintos received treatment from Doctors and Therapists for their Cigarette Addiction Injury. Patient Medical Records show before and
after cigarette smoking addiction injury occurred. The Guintos have tried every product
on the market to stop — “The Patch”, “The Nicotine Own”, and “The Smoke Away” to
name a few, with no results. The Guintos have not been able to quit for 11 years and
ongoing. One of the children during this time began cigarette smoking. The child also developed a smoking addiction injury.

The Guinto Family addiction injury did not get better, desperate, the Guintos asked the defendants’ for help with their smoking addiction injuries. The defendants’ replied by mailing information to the Guinto Family. The defendants’ responded by denying that cigarettes are addictive - that nicotine in tobacco would first have to be proven to be addictive by at least 2 Ex Expert Witness by the Guinto Family - before the Guinto Family can present their case with their doctors and therapists who treated them for tobacco addiction injury. Because the defendants’ deliberately gave the Guinto Family an Undue Hardship knowing that they are Paupers unable to pay for the ten’s of thousand of dollars for expert witnesses — the Guinto Family did not have the money to get expert witnesses so the case could not move forward– the defendants’ had the Guintos medical records, so the defendants’ knew that the Guintos did not want or mean to become cigarette smokers– the defendants’ have only enabled the Guintos injuries to continue. Instead the defendants’ keep the Guintos addicted to their product– the defendants’ have an obligation to know about their own products, Which they do, and to voluntarily do the right thing, but instead they do “future wrongful conduct” to hurt the Guinto Family.

The Guinto Family never stopped asking the defendants’ for help even up to and
during the Government’s RICO lawsuit. The defendants’ have always responded to keep
the Guintos injury addicted to their product. Many times the defendants’ could off helped us in the past and choice to do “future wrongful conduct”. Even know the defendants’ still choice to do “future wrongful conduct.

About two moths ago The Department of the Federal Attorney Office In Massachusetts told the Guinto Family to contact the Civil Department in Washington D.C. The Civil Department of Washington D.C. referred us to The Tobacco Division handling the Government RICO case. On the phone Daniel Crane Hearst of The Tobacco Division said they could not help us.

Indeed, this lawsuit is pertinent to the goals of the Guinto Family, which are to free the Guintos from tobacco addiction and thereby protect children and adults from serious and debilitating health problems caused by tobacco addiction; to protect the Guinto Family rights to breathe smoke-free air in the house. Accordingly, the Guinto Family interests in this matter are entirely consistent with each of the respective overall purpose.

The Guintos do not make any additional claims in this case. The existing parties do not represent the Guintos interests.

Respectfully submitted,

________

The Guinto Family — Father Raymond Guinto, Mother Mary C. Guinto, Children - Michael Joseph Guinto, Daniel T. Guinto, and Julie A. Guinto.

2 Elmwood Street

Everett, MA 02149

617-389-0152

September 22, 2005

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Here is the link to the full Guinto Motion to Intervene 9/22/05

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