‘Thanks’ to Sacramento, Victory in Smoking Lawsuit Helps No Victims in California

The recent victory of Antonio Cipollone over a major cigarette maker is a reminder to our nation that our system of justice can work to protect the interests of the little guy. But for Californians this major consumer victory has little effect.

Last year the state Legislature passed and the governor signed into law a bill that prevents suits against tobacco manufacturers and manufacturers of similarly dangerous products for product-liability damages. This action provides a clear example of the failure of our state’s democracy, because in passing that bill the Legislature approved a sweeping rollback of victims’ rights.

For more than 30 years California courts have led the nation in developing laws to hold manufacturers accountable for injuries caused by their products. When we were dealing with hammers and handsaws, it was easy to understand if a product was well made or safe. But as changing technology gave us, for example, the power saw, it became harder to appreciate whether it would fall apart or prove dangerous, and the doctrine of strict liability was developed. As changing marketing practices made identification of manufacturers impossible, a market-share theory was developed. This makes all manufacturers of the same product pay a portion of the damage, proportionate to their share of the market. These and other changes forced manufacturers to improve their products’ safety and to warn consumers about remaining dangers. Our courts also compensated victims of dangerous products to prevent the insult of poverty from being added to physical and emotional injury. Holding manufacturers accountable also meant that society wouldn’t pick up the tab for injuries caused by a company’s careless conduct.

However, manufacturers felt that the law had gone too far. It was harder and harder for them to escape the consequences of their acts. The companies and their insurers began national advertising campaigns to persuade the public that the judicial system was out of whack.

Beginning in 1987, calls for tort reform (limits on liability lawsuits) grew loud. Trial lawyers responded with calls for insurance reform--anything to bring down and control rates. By late August the Legislature had not passed a measure affecting these issues, and it went into the final week of its session with threats flying that initiatives would be pushed by tort reformers to limit the fees of attorneys and by trial lawyers and consumer groups to regulate the insurance industry. The threat of an initiative war that would place the economic future of insurance companies, trial lawyers, doctors and manufacturers in the hands of the voters was too frightening, and private discussions began in order to find a way out.

On the evening of Sept. 11, 1987, a hastily called joint meeting of the Assembly and Senate Judiciary committees was shown, for the first time, the language of legislation that was co-sponsored by Assembly Speaker Willie Brown. The bill had been drafted by the California Trial Lawyers Assn., California insurance industry, California Medical Assn., California Manufacturers Assn., California Chamber of Commerce and tobacco industry lawyers as a compromise of their interests. The joint committee was told that it could not amend one comma of the measure, and the bill was sent on to both houses of the Legislature; five hours later the Legislature sent it to the governor for his signature. With that deed done, the 1987 session of the Legislature ended.

Despite the full-throated cries of consumer organizations, victims’ groups and church representatives, the Legislature specifically had exempted tobacco and other manufacturers of dangerous products from product-liability lawsuits. But this is only one feature of the last-minute measure. Another provision made it harder for injured persons to obtain private lawyers to protect their rights against their own insurance companies. Another provision protected businesses, professions and insurance companies by making it harder for individuals to claim and prove punitive damages. Perhaps the most patently avaricious provision left untouched a 10-year-old limitation on the amount that patients could recover for medical malpractice, but increased the amount that their attorneys would get for handling the cases.

What takes this story of gain and loss and makes it a morality play is the fact that the Legislature and the governor placed the weight of the state behind these shenanigans. Almost without exception, politicians of every stripe put their stamp of approval or apology on this setback for health and safety and for good policy.

It was the willingness of elected public officials to sanction this private lawmaking that holds the greatest harm for California.

The winning of the Cipollone case in New Jersey points up our failure in California. We must never allow our Legislature and governor to waive all of the rules of legislative conduct to benefit the few. As if to underscore the impropriety of this wholesale buying of the process, the tobacco interests delivered more than $23,000 in campaign contributions to legislators on the Monday after their bill had been passed.

While tobacco and other economic interests have no shame, our legislative representatives and governor should be hanging their heads with the news that the Cipollone product-liability case was won in New Jersey and couldn’t even be brought in California.