Cigarettes, protected by the fiercely powerful tobacco lobby, occupy a privileged place in the American legal system. All other manufacturers are liable in civil court for failing to warn consumers of the dangers associated with their products, but cigarettes have been effectively exempt from this requirement. All this could change, however, when the U.S. Supreme Court finally rules on the case of Cipollone vs. Liggett within the next few months. Thus far waves of litigation have failed to erode the cigarette's privilege, but a storm may be brewing.
Compare the pallid cigarette warning labels with the stringent warning required on other products. The discrepancy in these warning requirements was blatantly evident in a 1985 lawsuit. A woman who had used Ortho Pharmaceutical's birth control pills and then suffered a stroke charged that the company's warnings were inadequate. The warning that accompanied the pill stated that it could cause blood clotting "in vital organs such as the brain." Not specific enough, the court ruled. If the plaintiff had seen the word "stroke," she might not have taken the pill which may have caused that particular condition.
Cigarettes are now known to contribute to stroke as well as cause a myriad of cancers, respiratory and heart diseases. But don't expect a court to penalize a tobacco company for withholding information from smokers that cigarettes are addictive and can cause death.
Woe unto the manufacturer (of anything other than cigarettes) who does not properly warn consumers! Product liability plaintiffs can potentially receive multimillion dollar awards for medical expenses, lost wages, pain and suffering, not to mention the limitless punitive damages to punish a negligent defendant.
The cigarette stands out against this background of all other products like skunk cabbage in a rose garden. Not a single cent in damages has been paid by cigarette manufacturers for the carnage caused by tobacco smoking.
The great irony is that in terms of harm to human health cigarettes are in a class by themselves; nothing, absolutely nothing, rivals their devastation.
The U.S. Surgeon General's Office now says that cigarettes kill 434,000 Americans each year. Alcohol (including drunk driving), car accidents, fires, AIDS, illegal drugs, suicide and homicide together cause 248,000 deaths per year. Even war has not killed as many Americans. Vietnam claimed 58,000 American lives over 12 years; World War II claimed about the same number of American lives in four years as cigarettes take each year.
It is the greatest anomaly in the law that cigarette manufacturers are allowed to escape responsibility while all other manufacturers are held to a reasonable standard of care.
This situation was noticed by trial lawyers eager for new frontiers. Starting in the early 1950s, when evidence linking cigarettes and lung cancer became sufficiently convincing, it seemed impossible that the distinction between tobacco and all other products would stand forever. The lack of tobacco accountability was the kind of legal vacuum that lawyers abhor.
There have already been two "waves" of lawsuits against tobacco companies. The first wave started in the middle 1950s and ended in 1970 when the U.S. Supreme Court denied the plaintiff's appeal in the case of Green vs. American Tobacco Company after two jury trials, six appeals, and twelve years of litigation.
Plaintiffs in this first wave had a difficult time convincing juries that smoking caused lung cancer in significant numbers of people. These jurors had been exposed for decades to tobacco advertising that falsely stressed health benefits.
By the early 1980s when the second wave began, the observation that smoking caused cancer was no longer in dispute. The 1964 Surgeon General's report linking smoking to lung cancer had given the U.S. government's imprimatur to the causation issue. Subsequently, the plaintiff still had to prove that cigarettes caused his or her particular disease (not an inconsequential burden) but not the more difficult general proposition.
Product liability in general underwent a huge expansion in the 1970s, making cigarette cases seem much more feasible. The majority of jurisdictions adopted rules that defined a defective product as one containing a manufacturing flaw, a bad product design, or an inadequate warning.
Courts held that adequate warnings were necessary so that a consumer could make a truly informed choice about whether to use a product. Warnings should not be too vague or general (think of "Cigarettes may be hazardous to your health.") and the warning must be clear and understandable. (What is "Cigarette smoke contains carbon monoxide," supposed to mean?)
Warnings on products are not just a formality; they must adequately convey to the consumer the nature and extent of a product's risk. Furthermore, even if a warning is adequate, a manufacturer will be held liable if it has engaged in a program of overpromotion that renders the warnings ineffectual. Few consumers understand that the tobacco industry has spent billions trying to undercut even the feeble government-imposed warnings.
Even as the courts and state legislatures imposed stricter warning requirements on other manufacturers, the U.S. Congress, under pressure from the tobacco companies, passed a law that effectively immunized the tobacco industry from those burdensome warning rules. The beauty of the law, from the tobacco industry's viewpoint, is that it appeared to be anti-tobacco.
In 1966, Congress required cigarette manufacturers to place specific warning labels on cigarette packs. Even though Congress has strengthened the warning three times since then, each change was a legislative compromise that included input from the tobacco industry.
A clause was inserted in the Warning Label Act that preempted the states from imposing their own health warnings on cigarettes. Henceforth, this would be strictly a federal matter, under the congressional control that was amenable to tobacco industry influence.
When the second wave of litigation started, there was some talk of the preemption clause being used as a defense against product liability suits. Most plaintiffs' lawyers discounted this as a major factor in the litigation. Who could take seriously the tobacco industry's claim that the federally mandated warnings exempted them from any further obligation to warn as a matter of law?
But that is exactly what all the federal appeals courts that have considered the matter have ruled.
The most important case in the second litigation wave is Cipollone vs. Liggett. The $400,000 jury verdict awarded in June, 1988 was the first monetary damage award against the tobacco industry ever. As such, it is a kind of historic event.
But it was a Pyrrhic victory. The award itself was only a small fraction of the several million dollars it cost to litigate the case.
The reason for the relatively small award was that the courts used the preemption clause as a scalpel to emasculate the plaintiff's case. This was not done by the trial judge, who wrote a strong opinion refuting the idea that the preemption clause applied. It was done by the Third Circuit Court of Appeals which ordered the judge to apply it in the most sweeping way possible.
In one ruling the trial judge, H. Lee Sarokin, declared,
"The evidence presented also permits the jury to find a tobacco industry conspiracy, vast in scope, devious in its purpose and devastating in its results. The jury may reasonably conclude that defendants were members of and engaged in that conspiracy with full knowledge and disregard for the illness and death it would cause, and that Mrs. Cipollone was merely one of its victims."
Almost as compelling is Judge Sarokin's footnote,
"The ruling of the Third Circuit has precluded the plaintiff from offering evidence to establish that this conspiracy continues to the present. The jury by virtue of that ruling has been deprived of evidence proffered by plaintiff to establish an intentional and deliberate campaign to undermine and neutralize the Surgeon General's warnings."
Why have the appeals courts been so negative about cigarette liability suits? They probably fear opening the flood gates. Federal judge Harold Ackerman said in a conference in 1986, "It's not overly pessimistic to suggest that any attempt to try these cases back to back will bankrupt the state and federal system." Certainly, the experience of asbestos litigation is not encouraging. Twenty-five thousand of these cases are now languishing while the courts attempt to find a way to deal with them.
However, fear of inconveniencing the courts should not and must not be a reason to deny justice to people with valid claims. Of course, no official opinions say that it is. But legal reasoning behind the court decisions is exceedingly thin.
When the U.S. Supreme Court considers the Cipollone case, it will deal with an issue of federalism that transcends product liability. Past decisions indicate that this Court will not look favorably on any extension of federal power at the expense of the states. Professor Lawrence Tribe of Harvard, a noted scholar of constitutional law, believes that the Court may well vote unanimously against the tobacco defendants on the issue of preemption.
If that happens, plaintiffs will be free to tell juries about the tobacco industry "conspiracy," and a third wave of lawsuits may finally overwhelm the cigarette makers.
Larry C. White, a lawyer, is the author of Merchants of Death, The American Tobacco Industry, William Morrow & Co., 1988.
Warnings Required on Cigarette Packages and Later Advertisements by The Warning Label Act
1/1/66-10/31/70
Cigarette smoking may be hazardous to your health.
11/1/70-10/11/85
The Surgeon General has determined that cigarette smoking is dangerous to your health.
10/12/85-present
Currently these four rotating cigarette warning labels are required.
1. Quitting smoking now greatly reduces serious risks to your health.
2. Cigarette smoke contains carbon monoxide.
3. Smoking by pregnant women may result in fetal injury, premature birth, and low birth weight. 4. Smoking causes lung cancer, heart disease, emphysema, and may complicate pregnancy.
(From Priorities Vol. 3, No. 4, 1991)
