Smoke Bomb
By current standards the $400,000 verdict returned by a Newark, N.J., federal jury in the case of the late Rose Cipollone is very modest, in both financial and legal terms. The judgment against the Liggett Group Inc., a cigarette manufacturer, won’t begin to pay the fees of the lawyers who represented her widower, and the case falls far short of establishing the legal landmark that they had predicted. But it is significant that, for the first time, a jury has found a cigarette maker at least partly liable for the lung-cancer death of a long-time smoker, piercing the armor of invincibility that has long surrounded the tobacco industry.
For nearly four decades cigarette manufacturers had fended off every legal attempt to hold them accountable for the diseases and deaths that scientists, doctors and public-health officials say can be directly attributed to smoking; in fact, the manufacturers had boasted of their perfect court record. Now, even if the Cipollone verdict is reversed or modified during the inevitable appeals, at least one jury has publicly rejected the tobacco industry’s familiar but threadbare claim that smoking does not cause cancer.
And, perhaps what is more important, the decision may encourage debate about issues that are less clear-cut--whether the health warnings that the federal government has required on every cigarette pack since 1966 ought to immunize the manufacturers from suit, as two federal courts have held; whether a chronic smoker can become so addicted that he no longer has any real choice when it comes to lighting up; whether the government should continue to subsidize an industry that ruins the health and claims the lives of so many; perhaps even whether these are matters that can be resolved in the nation’s courts.
The Newark jury--made up of a smoker, two former smokers and three nonsmokers--could not be persuaded that Rose Cipollone, who smoked from the age of 16 until her death at 58, was addicted. Not even last month’s finding by U.S. Surgeon General C. Everett Koop that nicotine is as addictive as heroin or cocaine did the trick. Instead, the jury, after finding that Liggett should have warned Cipollone of the risks of smoking before 1966 and violated its implied warranty to produce a safe product, decided that she was 80% to blame for her own death because she had ignored her husband’s pleas to quit. Thus, under a New Jersey law that prohibits damages unless the defendant is more culpable than the plaintiff, the jury awarded her estate no damages; the $400,000 award went to her widower. But some future case, one in which a smoker battled repeatedly but unsuccessfully to quit, might go the other way on the issue of addiction.
The Cipollones also had tried to prove that Liggett had conspired with other manufacturers, including Philip Morris and Lorillard, to misrepresent the truth about smoking. But the jury exonerated the industry of conspiracy and misrepresentation despite the introduction into evidence of thousands of internal documents, memos and studies suggesting that the industry knew of the link between cancer and smoking decades ago. The trial judge had found that there was sufficient evidence for the jury to find, if it wanted to, a tobacco industry “conspiracy, vast in its scope, devious in its purpose and devastating in its results.” The jury simply did not see any conspiracy.
Like these plaintiffs, we would like the tobacco industry held fully responsible, somehow, for the damage that it has done. But such lawsuits, inspired as much by greed as by a desire for justice, also make us uneasy. Too many plaintiffs and too many lawyers, working under contingency fees, regard suing the cigarette companies as a chance to get rich quick. If the ultimate goal is discouraging the use of tobacco, there are cheaper ways to go about it. The U.S. consumption of cigarettes has fallen by 10% in this decade alone, and on a percapita basis was lower last year than at any time since World War II. Those encouraging signs reflect education campaigns about the hazards of smoking, growing health consciousness and perhaps the surgeon general’s outspokenness . Who wins or loses lawsuits has been largely irrelevant.
