TX Carpenters Health, et al v. Philip Morris Inc,

*Circuit Judge of the Eighth Circuit, sitting by designation.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-41232
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TEXAS CARPENTERS HEALTH BENEFIT FUND,
and the INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS-NATIONAL ELECTRICAL
CONTRACTORS ASSOCIATION SOUTHWESTERN
HEALTH AND BENEFIT FUND, and the NORTH
TEXAS LABORERS’ HEALTH AND WELFARE FUND,
on behalf of themselves and on behalf of
all others similarly situated,
Plaintiffs-Appellants,
versus
PHILIP MORRIS INCORPORATED; RJ REYNOLDS
TOBACCO COMPANY; BROWN & WILLIAMSON
TOBACCO CORPORATION; BAT INDUSTRIES PLC;
LORILLARD TOBACCO COMPANY; LIGGETT GROUP
INC; THE AMERICAN TOBACCO CO; UNITED STATES
TOBACCO COMPANY; SMOKELESS TOBACCO COUNCIL INC;
THE TOBACCO INSTITUTE INC; and HILL & KNOWLTON INC.
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
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January 19, 2000
Before DAVIS, JONES, and MAGILL*, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This is an appeal from a case filed by union trust funds,
which provide comprehensive health care benefits to employees,
retirees and their dependents through welfare benefit plans,

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against tobacco companies and their lobbying and public relations
agents. The case sought recovery against the defendants for costs
incurred treating tobacco-related afflictions based upon federal
antitrust and RICO causes of action and various pendent state law
claims. A bevy of similar complaints have been filed around the
nation, and so far, the federal circuit courts have uniformly
upheld dismissal of the funds’ cases. Agreeing with the essential
holdings of the circuit court opinions, we have no need to write
further and affirm the district court’s dismissal of this case for
failure to state a claim. Fed. R. Civ. P. 12(b)(6).
Four circuit courts have rejected the funds’ federal
claims, concluding primarily that the loss suffered by insurers is
too remote from the manufacture and sale of cigarettes to justify
direct recovery by the funds for any alleged antitrust or RICO
violations. See International Brotherhood of Teamsters, Local 734
Health & Welfare Trust Fund v. Philip Morris Inc., ___ F.3d ___,
1999 WL 1034711 (7th Cir. 1999); Laborers Local 17 Health & Benefit
Fund v. Philip Morris Inc., 191, F.3d 229, 224 (2nd Cir. 1999);
Oregon Laborers-Employers Health & Welfare Trust Fund v. Philip
Morris Inc., 185 F.3d 957, 967 (9th Cir. 1999); Steamfitters Local
Union No. 420 Welfare Fund v. Philip Morris Inc., 171 F.3d 912, 918
(3rd Cir. 1999). Comprehensive discussions of the issues in those
cases persuade us that their conclusions are correct and that the
funds’ lawsuits constitute an illegitimate end-run around
principles of subrogation.

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As for the state common law and statutory claims asserted
by the funds, their initial appellate brief does not directly
address the court’s dismissal of any of those claims. One
paragraph in appellants’ reply brief directs us to their briefing
in the district court. Because appellants did not choose to brief
or even refer to the dismissal of these claims timely or adequately
on appeal, their challenge is waived. See Whitehead v. Food Max of
Miss. Inc., 163 F.3d 265, 270 (5th Cir. 1998).
The judgment of the district court dismissing the
complaint is AFFIRMED.

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