Chipping Away at the Legal Immunity of Tobacco Companies
The statute that put warning labels on cigarette packages provided the manufacturers only limited protection from lawsuits by those whom they had injured or killed.
THE JUNE 1992 SUPREME COURT RULING IN Cipollone V. Liggett Group Inc. was a watershed event in the struggle to hold cigarette manufacturers legally accountable for the addiction, disease and death that their products and reckless marketing cause. The Court held that the statute that put warning labels on cigarette packages provided the manufacturers only limited protection from lawsuits by those whom they had injured or killed. While the Court's ruling still bars lawsuits that claim that the industry failed to provide adequate warnings in their advertising or promotion after 1969, it permits other cases to go forward. Lawsuits based on fraud, conspiracy, breech of warranty, defects in design or testing or even failure to warn (if based on pre-1969 conduct or inadequate warning in places other than on advertising and promotion) are now permitted.
Since Cipollone, tobacco litigation has taken off in a variety of promising ways. Although some smokers' cases (including Cipollone itself) have been dropped, others have been filed. Several have been scheduled for trial this summer. Some of the cases will test previously untried legal theories and use new caches of incrementing evidence. Equally important the intact of pending case includes not only traditional tobacco liability cases involving tobacco caused diseases in smokers. Newer types of cases seek compensation for other injurious components of cigarettes or for tobacco-caused disease and injuries in nonsmokers. In some cases nonsmokers seek to protect themselves from future adverse effect of environmental tobacco smoke (ETS).
Last fall, the law firm that represented the Cipollones and seven other plaintiffs unexpectedly decided to withdraw from tobacco litigation, citing the expenses incurred in fighting the tobacco companies in Cipollone. Six plaintiffs, including the Cipollones' son, agreed to dismiss their lawsuits, but two others -- one in state court, the other in federal court -- insisted on having their -- cases tried. The state court judge permitted the law firm to withdraw. With regret, he acknowledged the inability of judges to level the litigation playing field.
The federal court judge took a different approach. The plaintiffs presented as evidence a 1988 memo from R.J. Reynolds' staff counsel explaining why a California attorney had dropped several cases against the company. It read: "The way we won these cases was not by spending all of Reynolds' money, but by making that other son of a bitch spend all of his." Judge Lechner made clear that this attitude "is at odds with the purposes of the Federal Rules of Civil Procedure and is intolerable." He pointed out that the Federal Rules give him power to prevent such abuse and strongly suggested that, given the chance, he would use that power. He further explained that the legal decisions, document discovery and testimony already obtained in Cipollone and other cigarette cases make the trial of future cases easier and less expensive.
While both decisions have been appealed, if Judge Lechner's decision stands, it sets a precedent and makes tobacco litigation much more attractive to plaintiffs' attorneys with limited resources.
On May 11, 1993 a Mississippi trial judge stunned the tobacco industry with a decision that could make tobacco cases easier to win. He applied to cigarettes a general common law principle -- that manufacturers of "defective and unreasonably dangerous products" are strictly liable for the harm they do. He concluded that no reasonable juror could doubt that a product that kills 435,000 Americans each year and adds over $50 billion to our health-care bills is defective and unreasonably dangerous. He also eviscerated the argument that smokers were negligent or "assumed the risk" when using the defendant's products by pointing out that these legal doctrines apply only if the plaintiffs somehow misused the product. In the case of cigarettes, the plaintiffs (and indeed all smokers) used the defendant's product in exactly the intended manner: They smoked them!
Although these conclusions are simple and compelling, this was the first time that a judge articulated them. The tobacco industry -- which for years has tied courts in knots over such "difficult" issues as whether cigarettes are really unreasonably dangerous or whether tobacco companies can blame smokers for using cigarettes -- attacked the decision as "maverick." The plaintiff's lawyer argued, on the other hand, that the judge was merely stating the obvious. He praised the judge's courage in speaking the truth and hoped that the decision would inspire judges elsewhere to reach similar conclusions.
This Mississippi case, and two other strict liability cases in Louisiana, are scheduled for trial this summer. Under the Mississippi judge's ruling, a jury will only have to consider whether the defendant's cigarettes caused the plaintiff's lung cancer and death and what damages he, his family and the medical care system sustained. Even if the Louisiana judges or an appellate court in Mississippi rule that a jury should be permitted to decide the strict liability claim, the cases will still be quite simple. The legal standard in both states permits strict liability claims to he evaluated on a risk/benefit comparison: If the risks of using the product (as intended) exceed the benefits, the manufacturer pays for any resulting harm. Since it is easy to demonstrate the large risk/benefit ratio of cigarettes, this is a promising legal theory.
The cigarette companies have not been content to let the common law take its course. Even before Cipollone, they spearheaded legislative "tort reforms" that eliminated practically all tobacco liability suits in California and prevented plaintiffs from invoking strict liability theories in several other states. They redoubled their efforts after Cipollone, obtaining a ban on most tobacco litigation filed in Texas after August 1993 as well as severe restrictions on tobacco cases filed in Mississippi after June 1994.
Nonetheless, a wide variety of claims remains viable in most states. Perhaps the most promising claims involve fraud and conspiracy by the tobacco industry. For decades the industry and its spokespersons have tried to persuade legislators, smokers and prospective smokers that the reports of health risks from smoking are overblown or unproven and that the industry is busily doing research to get at the truth of the matter. Enough evidence along these lines was introduced in Cipollone to persuade the trial judge (but not all the jurors) that a conspiracy to defraud existed and contributed to Rose Cipollone's failure to quit smoking. Much more evidence is likely to emerge in cases presently in the pipeline.
"Micronite" Filter Cases
Some cigarette cases are not about tobacco. Between 1953 and 1957 Lorillard's "revolutionary" Kent Micronite Filter contained crocidolite asbestos. This worked quite well at keeping tars out of smokers' lungs, but substituted asbestos fibers instead. Since asbestos and tars operate synergistically in causing lung cancer, one result may well have been to increase the rate at which Kent smokers contracted lung cancer. Another tragic result has been mesothelioma, a rare and fatal cancer on the lung lining. Since mesothelioma is caused by asbestos and not tobacco, these victims were almost certainly killed by switching to Kent's highly touted filter in an effort to save their lives! About a dozen of these mesothelioma cases are now pending, and one is scheduled for trial in Baltimore in October 1993.
Cigarette Fire Cases
Just about all cigarettes share another fatal design defect -- they start fires when dropped on upholstered furniture or bedding. Contrary to popular wisdom, cigarettes do not have to burn at incendiary temperatures when they are not being puffed. A congressionally authorized scientific panel with representation from all major cigarette companies concluded that existing cigarette manufacturing equipment could easily produce non-incendiary cigarettes simply by varying the cigarettes' width and tobacco density and removing chemicals designed to enhance burning. The first cigarette fire case ever to reach trial is likely to take place in Massachusetts next February. It was brought against Philip Morris by the estate of a mother and her three young children who died in a fire caused by a Marlboro dropped by someone who was drinking and smoking. Under the law, the predictable negligence of the smoker is no defense to the innocent victims' claim against a manufacturer that failed to make its product as safe as practicable.
Environmental Tobacco Smoke Cases
One problem with smokers' cases is the tendency of jurors to blame the victims, sometimes to the exclusion of imposing any responsibility on cigarette manufacturers. Nonsmokers who contract tobacco-caused diseases from exposure to environmental tobacco smoke (ETS) make more attractive plaintiffs. A recent Environmental Protection Agency report found that 3,000 Americans die each year from ETS-caused lung cancer. Other studies conclude that about 50,000 die from the full range of ETS-caused diseases. While causal attributions are typically less certain than with active smoking, in many situations ETS can be fairly described as a "substantial contributing cause" of the observed disease.
An example is a Mississippi barber who went to the Ochsner Clinic in New Orleans for a lung biopsy. After the procedure, doctors asked how many packs he smoked each day. "None," he replied. "Well, when did you quit?" they continued. When he denied ever smoking, the doctors were skeptical because the biopsy showed he had a "smoker's cancer." The barber was puzzled as well as distressed, but then offered that he ran "the smokiest barbershop in Laurel, Mississippi." The doctors will testify to the causal link when the case goes to trial.
Other types of ETS cases exist, in which the defendants are not tobacco companies but employers or proprietors of public accommodations. Various legal theories are available, but perhaps the most promising one is based on the recently enacted Americans with Disabilities Act (ADA). As the January 1993 EPA report, Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, makes clear, millions of Americans suffer from asthma and other diseases, and many of them have difficulty breathing in a smoky environment. The ADA protects the right of disabled individuals, including those suffering from impaired respiratory or cardiovascular systems, to have equal access to employment and public accommodations. The first cases, against McDonald's, Wendy's and Burger King, were filed in Connecticut earlier this year on behalf of asthmatic children and a woman with lupus who have been excluded from these fast food emporia by their policy of permitting smoking. Similar cases are being prepared in several other states.
Large Lawsuits Loom on the Horizon
Thus far, tobacco litigation has existed only on the retail level. Each case is presented singly in the hope of obtaining a significant recovery and achieving an important precedent. Class action procedures permit cases to be presented wholesale. The struggles of millions of smokers to disentangle themselves from nicotine addiction may provide the opportunity for a large scale attack on the cigarette industry (see related article, p. 15). Nicotine patch users have much in common: their nicotine dependence has been medically certified, the cause of their condition is not in doubt, they have spent similar amounts for diagnosis and treatment, and they were never warned of the addictive nature of cigarettes.
The introduction of bills in Congress and state legislatures authorizing third-party payers (Blue Cross, Medicare, Medicaid, etc.) to sue cigarette manufacturers for their share of health-care costs could also facilitate appropriate large claims against cigarette companies, while making a big dent in the health-care funding crisis. For example, if annual Medicaid expenditures in a particular state totaled $300 million, if tobacco-caused diseases could be shown to account for 20 percent of that bill and if a specific tobacco company had an average of 1/3 of the total cigarette market over the past ten years, that company would owe the state $20 million. A bill to accomplish this was introduced this spring in Massachusetts.
This burst of activity following Cipollone suggests that tobacco litigation may soon achieve its goal -- to make cigarette manufacturers pay their fair share of the immense damage that their products and behavior cause.
American Council on Science and Health, Inc.
By Richard A. Daynard