With Tobacco Firms Liable, Cost to Nonsmokers Eases

When the U.S. surgeon general announced that other peoples’ smoking causes cancer in nonsmokers, the tobacco industry proclaimed it a “victory” because he didn’t also claim that it caused nonsmokers to suffer heart attacks. Now, after frightening away attorneys for years by boasting that its multimillion-dollar defenses couldn’t be breached, the industry is again claiming “victory” when a jury found that smoking caused Rose Cipollone’s lung cancer and agonizing death, and ordered it to pay $400,000--more than the average wrongful death verdict.

But the myth of tobacco invulnerability was forever shattered when a young lawyer from a small New Jersey law firm beat their $20-million defense team--a victory all the more telling because it came in the face of judicial rulings absolving the tobacco industry for all of her smoking after health warnings appeared in 1965, taking away two of his key arguments and requiring him to show that the company bore more than 50% of the responsibility.

Recognizing that lawsuits in many other jurisdictions will not have to face these obstacles, that the tide of public opinion concerning smoking has changed dramatically since most of the earlier cases were lost and that most of the expense of obtaining the key documents will not have to be repeated in future suits, many experienced litigators are already gearing up for more cases and more victories.

They don’t really care on which legal counts the case was won because they know that plaintiffs are awarded the same amount if you win on one count or 10; that most verdicts are compromises, with all jurors often not agreeing on any one claim; that documents detailing a deliberate cover-up and conspiracy inevitably affect jurors even if they don’t admit it and that verdicts in the initial breakthrough cases are often small.

Indeed, the breakthrough case in asbestos litigation was also based on documents demonstrating a cover-up, and that was only an $80,000 judgment. Also, in most cases of product liability, punitive damages were awarded only after earlier cases clearly established liability.

Injuries and deaths caused by consumer products, even where the risks are plain, often involve responsibility by both the victim and the manufacturer; he assumed certain risks, but the company failed to make the product safer or to issue more effective warnings. Thus in case after case--of power tools, electrical appliances and even step ladders--grieving families have long been allowed to recover a fair share of their losses.

Without such recoveries, manufacturers would have little incentive to reduce accidents by moderating advertising, providing more specific and effective warnings or making the product less dangerous. Similarly, many of the medical and other costs would be unfairly borne by taxpayers (under Social Security, Medicare and welfare) and other third parties (like health insurance) rather than by the company that profits from the sale.

Indeed, cigarette companies make such obscene profits largely because, unlike most other manufacturers, they have not been forced to pay their fair share of the cost of the deaths and disabilities that their products cause. These costs, estimated to be more than $100 billion each year, are now largely borne by nonsmokers in the form of higher taxes and higher insurance premiums.

Thus the effect of these lawsuits is to shift some of the enormous costs of smoking from nonsmokers to the industry, which in turn will be forced to charge smokers more. Such increased prices have been shown to reduce smoking primarily among two groups: children, who are the innocent victims and often find themselves hooked before they are old enough to understand and appreciate a health warning, and members of the lower classes, who are the most resistant to educational campaigns and social pressures to quit smoking.

If cigarette companies are not held liable--or, alternatively, if much higher taxes approximating the economic costs of smoking are not imposed--all of society is forced to bear these enormous costs. In addition, one out of every four smokers will be killed by smoking. Their families and society will suffer, and the tobacco companies will keep getting richer.

Requiring cigarette companies to pay their fair share for these deaths and disabilities will force smokers to bear the costs of their own addiction, help provide some compensation to their families when their smoking kills them and deter smoking among the two most vulnerable groups by using the forces of the marketplace rather than governmental intervention. Society will be better off, nonsmokers will save, and smokers’ families will receive some compensation when a wage earner dies. Only the cigarette companies will lose--which is why they are spending so much to persuade you that lawsuits against them are a bad idea and that they still haven’t lost one.