United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 21, 2001 Decided May 22, 2001
No. 00-7093
Service Employees International Union Health
and Welfare Fund, et al.,
Appellees
v.
Philip Morris Incorporated, et al.,
Appellants
---------
Consolidated with
Nos. 00-7094, 00-7095, 00-7096, 00-7097,
00-7098, 00-7099, 00-7100
Appeals from the United States District Court
for the District of Columbia
(No. 98cv00704)
(No. 98cv01569)
(No. 98cv01716)
(No. 99cv02326)
(No. 99cv03080)
(No. 99ms00213)
---------
No. 00-7023
The Republic of Guatemala
Appellant
v.
The Tobacco Institute, Incorporated, et al.,
Appellees
---------
Consolidated with
Nos. 00-7118, 00-7120
Appeals from the United States District Court
for the District of Columbia
(No. 98cv00704)
(No. 98cv01185)
(No. 99cv01535)
(No. 99cv03080)
(No. 99ms00213)
Herbert M. Wachtell argued the cause in No. 00-7093 for
appellants. With him on the briefs were Peter C. Hein,
David S. Eggert, Timothy M. Broas, Michael K. Atkinson,
Robert F. McDermott, Jr., Paul S. Ryerson, Robert H. Klo-
noff, Paul Reichert, Kenneth N. Bass, Leigh Hyer, Janet L.
Goetz, Joseph Barloon, Keith A. Teel, D. Edward Wilson,
Michael B. MacWilliams, Peter A. Woolson, Judah Best and
John Parker Sweeney. Newman T. Halvorson, Jr. entered
an appearance.
Michael C. Spencer argued the cause in No. 00-7093 for
appellees. With him on the brief were Daniel Edelman and
Roger M. Adelman.
Arthur R. Miller argued the cause in No. 00-7023 for
appellants. On the briefs for appellants and amicus curiae
Guatemalan National League Against Cancer were George M.
Fleming, Sylvia Davidow, Andres C. Pereira, Richard M.
Martin, Jr., Nicholas Gilman, and Jonathan S. Massey.
Herbert M. Wachtell argued the cause in No. 00-7023 for
appellees. With him on the brief were Peter C. Hein, Timo-
thy M. Broas, Michael K. Atkinson, Robert F. McDermott,
Jr., Paul S. Ryerson, Kenneth N. Bass, Leigh Hyer, Garyow-
en P. Morrisroe, Thomas J. McCormack, Timothy M.
Hughes, Robert E. Scott, Jr., Joseph M. McLaughlin, Gene E.
Voigts, Richard L. Gray, John Vanderstar and Judah Best.
Keith A. Teel, David Gruenstein, Daryl L. Joseffer, Michael
A. Schlanger, Peter A. Woolson, and D. Edward Wilson, Jr.
entered appearances.
Robin S. Conrad and Kenneth S. Geller were on the brief
in No. 00-7023 of amicus curiae The Chamber of Commerce
of the United States.
Before: Williams, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: In these two appeals, the court
must determine whether the plaintiffs have demonstrated
proximate cause in seeking, on an aggregate basis, to recover
costs incurred as a result of paying for the health care needs
of individual smokers. The complaints allege conspiracy and
fraud in connection with federal antitrust and racketeering
("RICO") claims as well as antitrust claims under District of
Columbia law and common law claims. Similar claims have
been considered and rejected as too remote by seven other
circuits. Because we agree with the other circuits that the
alleged injuries of the third-party payors are too remote to
have been proximately caused by the defendants' alleged
conduct, we reverse the denial of the motion to dismiss with
respect to the RICO and fraud claims in Service Employees
International Union Health and Welfare Fund v. Philip
Morris Inc., 83 F. Supp. 2d 70 (D.D.C. 1999) ("Service
Employees"), and otherwise affirm the dismissal of the com-
plaints in Republic of Guatemala v. Tobacco Institute, Inc.,
83 F. Supp. 2d 125 (D.D.C. 1999) ("Guatemala").
I.
A.
In Service Employees, several labor-management health
trust funds ("the funds"), see 29 U.S.C. s 186(c)(5) (1994),
sued Philip Morris, other tobacco companies, and other enti-
ties related to the tobacco industry, alleging a fraudulent
scheme to preserve their control of the cigarette market and
to avoid the costs of treating smoking-related diseases by
counteracting smokers' efforts to quit, by impairing the abili-
ty of health care providers to reduce costs through effective
smoking cessation programs and safer cigarettes, and by
concealing the tobacco industry's active role in manipulating
and perpetuating the resulting health care crisis. The funds
seek to recover their payments for participants' smoking-
related health care costs by "su[ing] in their own capacities,
rather than asserting claims in subrogation on behalf of
individual [f]und beneficiaries."
The district court granted the defendants' motion to dis-
miss under Federal Rule of Civil Procedure 12(b)(6) the
funds' local and federal antitrust claims for lack of an anti-
trust injury and for failure to specify antitrust damages.
Service Employees, 83 F. Supp. 2d at 89-91. The court
dismissed the funds' fraud claims without prejudice for failure
to plead fraud with particularity as required by Federal Rule
of Civil Procedure 9(b). Id. at 91-92. The district court also
dismissed the funds' special duty, indemnity, and unjust
enrichment claims. Id. at 92-94. Denying the motion to
dismiss with respect to the funds' RICO claims, however, the
district court accepted the funds' characterization of their
injuries as "direct injuries to the trust assets," id. at 86, or
harm "to their infrastructure and financial health and stabili-
ty," id., and rejected the view that such damages are entirely
derivative of the harm suffered by the funds' beneficiaries, id.
at 89. While the district court acknowledged the analytical
framework provided by the Supreme Court in Associated
General Contractors of California, Inc. v. California State
Council of Carpenters, 459 U.S. 519 (1983) ("AGC"), and
Holmes v. Securities Investor Protection Corporation, 503
U.S. 258 (1992), it addressed proximate cause in terms of
foreseeability and direct consequences, guided by the two-
part test set forth in the Restatement (Second) of Torts s 431
(1965). Service Employees, 83 F. Supp. 2d at 80-83. The
district court concluded that foreseeable harm to the funds
stemming from defendants' alleged conduct was "obvious," id.
at 84, and resolved difficulties otherwise posed by the nature
of the funds' claims by invoking "the inherent ability and
flexibility of our common-law based legal system to respond
to the demands of a case as difficult as this," id. at 79-80.
The defendants, in seeking reversal on the RICO and fraud
claims, rely principally on what they characterize as "150
years of controlling precedent" regarding proximate cause
under the common law that the Supreme Court's decisions in
AGC and Holmes have incorporated in analyzing standing to
pursue federal antitrust and RICO claims. Holmes, 503 U.S.
at 267-70; AGC, 459 U.S. at 529-35. In addition to relying
on the rule that one who pays the medical expenses of
another may not recover in a direct suit against the tortfeasor
but must proceed by way of subrogation, cf. Indus. Risk
Insurers v. Creole Prod. Servs., Inc., 746 F.2d 526, 528 (9th
Cir. 1984); Rock Island Bank v. Aetna Cas. & Sur. Co., 692
F.2d 1100, 1106-07 (7th Cir. 1982); Great Am. Ins. Co. v.
United States, 575 F.2d 1031, 1033-34 (2d Cir. 1978), the
defendants rely on the decisions of the circuit courts of appeal
that have rejected such third-party payor suits against the
tobacco industry. The funds, in turn, appeal the dismissal of
all of their other claims save for their special duty and
indemnity claims.
B.
The Republics of Guatemala, Nicaragua, and Ukraine ("the
nations") seek to distinguish their claims from those of the
typical third-party payor whose fate is sealed by the decisions
of other circuits. They contend that as sovereign nations
constitutionally (or otherwise legally) obligated to provide
free health care and other forms of social welfare to their
residents, or at least to those who cannot afford to pay for
such benefits, they have suffered economic harms to their
treasuries that are independent of any harms allegedly suf-
fered by their residents as a result of smoking defendants'
products. The nations maintain that they are not only the
best but the only plaintiffs who can recover for the economic
harm allegedly suffered by their public fiscs. Further, they
claim a purported right to sue in parens patriae that they
view as overcoming concerns about their standing to recover
their economic losses under RICO and the federal antitrust
laws.
The district court dismissed the complaints in their entire-
ty. Guatemala, 83 F. Supp. 2d at 128.1 Without adopting
the defendants' position that the nations are merely complain-
ing of a purely derivative harm, and acknowledging that the
doctrine of remoteness affords courts flexibility in determin-
ing whether the alleged injury is remote from the alleged
misconduct, the district court considered it "abundantly clear
that the injury that [the nations] purportedly suffered oc-
curred only as a consequence of the harm to individual
smokers." Id. at 129. The district court concluded that the
"tortured path" from the defendants' alleged wrongdoing to
the nations' increased expenditures "demonstrates that [the
nations'] claims are precisely the type of indirect claims that
the proximate cause requirement is intended to weed out."
Id. at 130 (quoting Steamfitters Local Union No. 420 Welfare
Fund v. Philip Morris Inc., 171 F.3d 912, 930 (3d Cir. 1999)
("Steamfitters")).
In seeking reversal, the nations contend that the district
court misapplied the Holmes factors, ignored the foreseeable
nature of the harms alleged as well as public policy consider-
ations in conducting its proximate cause analysis, failed to
address the alternate chain of causation alleged by the na-
tions, and failed to acknowledge the nations' unique status as
__________
1 By unpublished order, the district court dismissed the com-
plaints of Nicaragua and the Ukraine for the reasons in Guatemala.
foreign sovereigns. Essentially, the nations urge this court
to adopt the district court's proximate cause analysis in
Service Employees and to give special weight to their right to
sue as parens patriae. They also contend that the district
court erred in not allowing them to replead their fraud and
RICO claims. See Guatemala, 83 F. Supp. 2d at 135 n.8.
II.
Our review of the district courts' partial denial and grant of
the defendants' motions to dismiss the complaints under
Federal Rule of Civil Procedure 12(b)(6) is de novo. See
Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994). Because the relevant legal analysis appears
in several comprehensive decisions of other circuit courts of
appeal, our analysis is brief.
To date, seven circuit courts of appeal have rejected claims
similar to those brought by the funds and the nations by
generally concluding that the alleged injuries are too remote
and, therefore, are not redressable for lack of proximate
cause.2 In Service Employees, the funds seek to distinguish
these cases principally on the ground that the circuits have
engaged in an overly mechanical analysis of proximate cause
and ignored congressional intent and important public policies
__________
2 Lyons v. Philip Morris Inc., 225 F.3d 909 (8th Cir. 2000);
United Food and Commercial Workers Unions, Employers Health
and Welfare Fund v. Philip Morris Inc., 223 F.3d 1271 (11th Cir.
2000); Tex. Carpenters Health Benefit Fund v. Philip Morris Inc.,
199 F.3d 788 (5th Cir. 2000); Int'l Bhd. of Teamsters, Local 734
Health and Welfare Trust Fund v. Philip Morris Inc., 196 F.3d 818
(7th Cir. 1999) ("Teamsters"); Laborers Local 17 Health and Benefit
Fund v. Philip Morris Inc., 191 F.3d 229 (2d Cir. 1999) ("Laborers
Local"); Oregon Laborers-Employers Health & Welfare Trust
Fund v. Philip Morris Inc., 185 F.3d 957 (9th Cir. 1999) ("Oregon
Laborers"); Steamfitters, Local Union No. 420 Welfare Fund v.
Philip Morris Inc., 171 F.3d 912 (3d Cir. 1999) ("Steamfitters"); see
also Ass'n of Wash. Public Hosp. Dists. v. Philip Morris Inc., 241
F.3d 696 (9th Cir. 2001) ("Wash. Pub. Hosp."); Allegheny Gen.
Hosp. v. Philip Morris Inc., 228 F.3d 429 (3d Cir. 2000) ("Alleghe-
ny").
underlying RICO. Pointing to RICO's history and purpose,
see Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 519-20
(1985) (Marshall, J., dissenting), the funds maintain that
Congress intended to afford a remedy where, as here, in the
funds' words, "people, with common law claims, ... were not
able to adequately oppose an industry of companies conspir-
ing together to commit misconduct more akin to the racke-
teering of organized crime than to garden-variety product
liability torts and isolated instances of fraud or deceit."
Health care payors, by contrast, "were the type of business
entities that suffered ... economic injuries, and that had the
size and power to mount credible attacks as private attorneys
general to assist governmental law enforcement efforts."
Therefore, Holmes, AGC, Illinois Brick Co. v. Illinois, 431
U.S. 720 (1977), and similar cases are distinguishable and
properly understood as the Supreme Court's effort to choose
among multiple possible plaintiffs that have suffered economic
injury and to select only the most efficient and directly
injured plaintiff. Furthermore, the funds contend that a
proper analysis of the Holmes factors demonstrates that they
have standing to pursue their RICO claims against the tobac-
co industry. In a somewhat similar vein, the nations contend
that the district court's conclusion in Guatemala failed to
recognize the unique status of the nations as foreign sover-
eigns seeking to protect their governments' treasuries
through parens patriae actions.
The funds and the nations err in assuming that the proxi-
mate cause analysis called for by AGC and Holmes is a quest
for the "best" (or, realistically, "least bad") plaintiff. Rather,
the Supreme Court has insisted on an appropriate plaintiff,
namely, a plaintiff whose alleged injury possesses a sufficient-
ly direct causal relationship to the alleged wrongdoing. See
AGC, 459 U.S. at 533-35; see also Holmes, 503 U.S. at 268-
70. The problem for the plaintiffs arises from long-standing
common law principles which the Supreme Court has incorpo-
rated into the proximate cause requirement for purposes of
determining standing to bring RICO and federal antitrust
claims.
By relying on the analysis of RICO's legislative history set
forth in Justice Marshall's dissenting opinion in Sedima, 473
U.S. at 512-13, an approach rejected by the Court's majority,
id. at 497 n.15, the funds seek to show that in enacting RICO
Congress intended to adopt an analysis of the proximate
causation requirement different from that identified by the
Supreme Court in Holmes, 503 U.S. at 267-70. There may
be some tension between the Holmes (RICO) factors, which
might be read simply to assert a single-factor direct-injury
test that is merely supported by several policy factors. See
Holmes, 503 U.S. at 269, and the AGC (antitrust) approach,
which balances the directness concerns along with other
factors. See AGC, 459 U.S. at 537-45. This is not a pressing
issue here, however, because it is not outcome determinative
inasmuch as the funds and the nations lose under a pure
directness test and under a balancing of the Holmes factors.
The nations' assertion that they may proceed in parens
patriae is a dubious assertion at best, for as the First Circuit
pointed out in Estados Unidos Mexicanos v. DeCoster, 229
F.3d 332, 336 (1st Cir. 2000), parens patriae standing should
not be recognized in a foreign nation (by contrast with a State
in this country) unless there is a clear indication by the
Supreme Court or one of the two coordinate branches of
government to grant such standing. The nations offer no
evidence of such intent. In any event, they fail to show that
such status eliminates or adequately substitutes for proximate
cause. Rather, the doctrine of parens patriae is merely a
species of prudential standing, see Md. People's Counsel v.
FERC, 760 F.2d 318, 321-22 (D.C. Cir. 1985), and does not
create a boundless opportunity for governments to seek re-
covery for alleged wrongs against them or their residents.
See, e.g., Pfizer, Inc. v. Lord, 552 F.2d 612, 616 (8th Cir. 1975).
Even were the court to view as oversimplified the defen-
dants' reliance on the settled rule barring direct suits by third
parties seeking to recover the costs of medical care paid on
behalf of individuals injured as a result of an alleged tortfea-
sor's conduct,3 application of the Holmes factors,4 503 U.S. at
269-70, reveals that both the funds and the nations fail to
demonstrate proximate cause. With respect to the first
Holmes factor, the circuits have generally concluded that
damages for such claims are highly speculative and difficult to
calculate given the many other potential causes for the al-
leged financial injuries. See Wash. Pub. Hosp., 241 F.3d at
703; Allegheny, 228 F.3d at 441-42;5 Laborers Local, 191
F.3d at 239-40; Oregon Laborers, 185 F.3d at 964-65; Ste-
amfitters, 171 F.3d at 928-29; cf. Teamsters, 196 F.3d at 823-
24. Regarding the second Holmes factor, the circuits have
concluded that allowing such claims to proceed would create a
risk of multiple recoveries and necessitate complicated rules
for apportioning damages between groups of plaintiffs re-
moved at various levels from the tobacco industry's alleged
wrongdoing. See Wash. Pub. Hosp., 241 F.3d at 703; Team-
sters, 196 F.3d at 823; Laborers Local, 191 F.3d at 240-41;
__________
3 Cf. Indus. Risk Insurers, 746 F.2d at 528; Rock Island Bank,
692 F.2d at 1106-07; Great Am. Ins. Co., 575 F.2d at 1033-34.
4 In explaining that the common law required "some direct
relation between the injury asserted and the injurious conduct
alleged," Holmes, 503 U.S. at 268, the Supreme Court characterized
its decision in AGC as identifying three relevant considerations: (1)
the need for sufficiently direct factual causation in order to be able
"to ascertain the amount of a plaintiff's damages attributable to the
violation, as distinct from other, independent, factors"; (2) the
avoidance of "complicated rules apportioning damages among plain-
tiffs removed at different levels of injury from the violative acts [so
as] to obviate the risk of multiple recoveries"; and (3) the assurance
that "directly injured victims can generally be counted on to vindi-
cate the law as private attorneys general, without any of the
problems attendant upon suits by plaintiffs injured more remotely."
Id. at 269-70 ("the Holmes factors").
5 The decisions of the Third and Ninth Circuits in Allegheny
and Washington Public Hospital are instructive with respect to the
nations' claims because, like the nations, the plaintiffs in both cases
were legally obligated to directly provide health care to smokers
who could not afford to pay for such services. See Wash. Pub.
Hosp., 241 F.3d at 700; Allegheny, 228 F.3d at 436, 443.
Oregon Laborers, 185 F.3d at 965-66; cf. Allegheny, 228 F.3d
at 442; Steamfitters, 171 F.3d at 933. The third Holmes the
factor, the circuits have generally concluded, cannot outweigh
important policies underlying the first two Holmes factors,
see Steamfitters, 171 F.3d at 933-34; see also Oregon Labor-
ers, 185 F.3d at 964, and furthermore, individual smokers may
be counted on to vindicate the public interests at stake in the
third factor by asserting various theories of recovery against
the tobacco industry. See Wash. Pub. Hosp., 241 F.3d at 703;
Teamsters, 196 F.3d at 823; Laborers Local, 191 F.3d at 241;
Oregon Laborers, 185 F.3d at 964. In addition, the circuits
have rejected the contention that specific intent is sufficient
to demonstrate proximate cause, see Allegheny, 228 F.3d at
439; Laborers Local, 191 F.3d at 241-42; Steamfitters, 171
F.3d at 925, or that the foreseeable nature of the harms
alleged is sufficient to satisfy the proximate cause require-
ment. See Steamfitters, 171 F.3d at 926. Furthermore, the
Ninth and Third Circuits have rejected efforts to distinguish
between third-party health care payors like the funds and
direct health care providers like the nations with respect to
the derivative nature of the harms alleged. See Wash. Pub.
Hosp., 241 F.3d at 702-03; Allegheny, 228 F.3d at 440-41.
We likewise hold that the harms alleged by the funds and
the nations are too remote from the defendants' alleged
wrongdoing to provide antitrust or RICO standing. Neither
the funds nor the nations have shown that their claimed
economic harms were not caused by other independent fac-
tors or that difficult problems of duplicative recoveries or
allocation of damages could be avoided were they allowed to
proceed. Indeed, as the defendants suggest, the alleged
harm arising from payment of medical expenses by the funds
and the nations is itself derivative of alleged injuries to
individual smokers, and the alleged "infrastructure" harms
are even more remote than the damages for medical pay-
ments because the potential for "infrastructure" harm does
not exist until an actuarially significant number of medical
payments on behalf of smokers has been made. See Laborers
Local, 191 F.3d at 239; Oregon Laborers, 185 F.3d at 963;
Steamfitters, 171 F.3d at 927-28; cf. Teamsters, 196 F.3d at
823-24. Moreover, as the Seventh Circuit tellingly observed
in Teamsters, insurers are hard pressed to demonstrate fi-
nancial harm flowing from the tobacco industry's alleged
wrongdoing because they possess information that would have
indicated a need to collect higher premiums from smokers.
See Teamsters, 196 F.3d at 823-24, 826.
The remote, derivative nature of the alleged injuries, in
turn, makes more difficult the determination of the amount of
damages that is attributable to the alleged wrongdoing, as
distinct from other independent factors. As the circuits have
pointed out, considerable speculation would be involved in
identifying the costs that have caused the alleged financial
instability of the funds and similar costs to the nations'
treasuries that the plaintiffs contend have deterred or pre-
vented them from financing various health care programs.
See Wash. Pub. Hosp., 241 F.3d at 703; Allegheny, 228 F.3d
at 441-42; Laborers Local, 191 F.3d at 239-40; Oregon
Laborers, 185 F.3d at 964-65; Steamfitters, 171 F.3d at 928-
30. For example, it is difficult to know how smokers might
have behaved with more complete information, see Laborers
Local, 191 F.3d at 239-40; Steamfitters, 171 F.3d at 929, a
problem compounded by the fact that the tobacco companies
would be stripped of many defenses that would be available in
a subrogation action. See Teamsters, 196 F.3d at 823. Reli-
ance on aggregate statistical proof, as the district court in
Service Employees accepted (without prejudice to later attack
by defendants, see 83 F. Supp. 2d at 88), and as the nations
propose, compounds the difficulties and does not alter the
speculative nature of the claimed damages. See Allegheny,
228 F.3d at 441-42; Oregon Laborers, 185 F.3d at 964-65;
Steamfitters, 171 F.3d at 928-29; cf. Teamsters, 196 F.3d at
823. Moreover, the insurers have likely already passed the
costs on to the directly injured through higher premiums.
See Teamsters, 196 F.3d at 824.
Allowing the funds and the nations to proceed would also
require complex rules for apportioning damages between
potential plaintiffs removed from the alleged wrongdoing by
different levels of injury, as well as create a very real
possibility of duplicative recoveries against the defendants.
The need for complex rules apportioning damages arises
because other indirectly injured parties might also sue. As a
result, courts would be required to allocate damages among
various classes of directly and indirectly injured parties who
are removed from the alleged torts by varying degrees and
would be required to do so in a manner that protects the
tobacco industry from being held repeatedly liable for the
same alleged wrongdoing. See Holmes, 503 U.S. at 273;
AGC, 459 U.S. at 543-45; Laborers Local, 191 F.3d at 240-41;
Oregon Laborers, 185 F.3d at 965-66; cf. Teamsters, 196 F.3d
at 823-24. See generally Ill. Brick, 431 U.S. at 737-38.
The nations contend that because they are not private
insurers they cannot bring a subrogation action. Further,
because they have assumed the responsibility of compensat-
ing the directly injured, they suggest that if they cannot
recover in this action for the alleged harms, no one can.
Assuming the premise to be correct (and the nations' submis-
sions are far from clear on the matter), the argument mistak-
enly assumes that it was Congress' intent that there must be
recoveries, regardless of the burdens inflicted on the legal
system and the significant policies captured in the first two
Holmes factors. See supra p. 10 n.4. It seems especially
implausible that Congress would have wished to saddle the
United States judicial system with such burdens simply to
accommodate the legal idiosyncrasies of foreign nations. To
the extent that such idiosyncrasies stand between the nations'
smokers and recoveries in United States courts, the nations
may wish to consider amendment of their domestic law.
Relatedly, because individual smokers may seek recoveries
for the same alleged conduct under state law theories and
because employers, other health insurers, and other similar
potential plaintiffs might also pursue similar antitrust and
RICO claims against the tobacco industry, double recovery
could occur. See Wash. Pub. Hosp., 241 F.3d at 703; Team-
sters, 196 F.3d at 823; Laborers Local, 191 F.3d at 240-41;
Oregon Laborers, 185 F.3d at 966; cf. Allegheny, 228 F.3d at
442. The district court's contrary view in Service Employees,
83 F. Supp. 2d at 87-88, fails to take into account the
collateral source rule, see District of Columbia v. Jackson,
451 A.2d 867, 873 (D.C. 1982), and the limits of the single
satisfaction rule, see Lamphier v. Wash. Hosp. Ctr., 524 A.2d
729, 734 (D.C. 1987), which would not prevent multiple plain-
tiffs from obtaining duplicative recoveries from a single de-
fendant for a single tort. See Guatemala, 83 F. Supp. 2d at
131 n.3; cf. Laborers Local, 191 F.3d at 241.
Virtually the same kinds of problems exist with respect to
the nations' claims. See Wash. Pub. Hosp., 241 F.3d at 703;
cf. Allegheny, 228 F.3d at 442; Pfizer v. Lord, 522 F.2d at
619-20.
By its very nature, the common law proximate cause re-
quirement adopted by the Supreme Court in Holmes and
AGC leaves open the possibility that "[s]ome injuries caused
by an antitrust [or RICO] violation may thus be left unreme-
died for lack of a proper plaintiff." Oregon Laborers, 185
F.3d at 964. See generally Ill. Brick, 431 U.S. at 745-47.
The third Holmes factor, therefore, must be considered in the
context of the proximate cause analysis as a whole rather
than as a free-standing, independent ground for finding proxi-
mate causation. Were satisfaction of the third Holmes factor
necessary, the proximate cause analysis would be trans-
formed into a process for identifying the "best" plaintiff to
assert certain antitrust or RICO claims, in contravention of
AGC, 459 U.S. at 534-35. Cf. Oregon Laborers, 185 F.3d at
964. Like other circuits, we conclude that individual smokers
constitute a group of potential plaintiffs possessed of more
direct claims who can be counted on to deter the alleged
wrongdoing by asserting state law theories of recovery or
perhaps even RICO and federal antitrust claims to the extent
they can prove a measure of damages distinct from personal
injuries. See Wash. Pub. Hosp., 241 F.3d at 703; Teamsters,
196 F.3d at 823; Laborers Local, 191 F.3d at 241; Oregon
Laborers, 185 F.3d at 964; Steamfitters, 171 F.3d at 933; see
also Fed. Trade Comm'n v. Ind. Fed'n of Dentists, 476 U.S.
447, 461-62 (1986); Reiter v. Sonotone Corp., 442 U.S. 330,
339 (1979).
The funds' and the nations' reliance on the purportedly
foreseeable nature of their injuries and the allegedly inten-
tional nature of defendants' wrongdoing is misplaced.
"[F]oreseeability and direct injury (or remoteness) are dis-
tinct concepts, both of which must generally be established by
a plaintiff." Laborers Local, 191 F.3d at 236; see also
Steamfitters, 171 F.3d at 926. Defendants suggest that sub-
stitution of the former for the latter would enable circumven-
tion of the settled rule that one who pays the medical
expenses of another may not recover those expenses in a
direct suit against the tortfeasor but must proceed by way of
subrogation. In any event, specific intent to harm the plain-
tiffs by shifting smoking-related health care costs to them is
alone insufficient to overcome the bar on remote claims. See
AGC, 459 U.S. at 537 & n.37; Blue Shield of Va. v.
McCready, 457 U.S. 465, 478-79 (1982); Laborers Local, 191
F.3d at 241-42; Steamfitters, 171 F.3d at 925.
Accordingly, because the funds' and the nations' claims are
"too remote, contingent, derivative, and indirect to survive,"
Guatemala, 83 F. Supp. 2d at 130,6 we reverse the denial of
the motion to dismiss the RICO and fraud claims in Service
Employees, and we otherwise affirm the dismissals of the
complaints in Service Employees and Guatemala.
__________
6 The failure of the funds and the nations to demonstrate
proximate cause under Holmes with respect to their RICO and
federal antitrust claims also means that their antitrust and common
law claims under District of Columbia law fail for lack of proximate
cause. See McKethean v. Wash. Metro. Area Transit Auth., 588
A.2d 708, 716 (D.C. 1991); Lacy v. District of Columbia, 424 A.2d
317, 321 (D.C. 1980); see also Wash. Pub. Hosp., 241 F.3d at 706-
07; Allegheny, 228 F.3d at 445-46; Teamsters, 196 F.3d at 827-28;
Laborers Local, 191 F.3d at 242-43; Oregon Laborers, 185 F.3d at
968-69; Steamfitters, 171 F.3d at 934-37.