Tobacco Firms Ruled Open to Injury Lawsuits
Opening the door to a flood of lawsuits against the tobacco industry, the Supreme Court ruled Wednesday that cigarette makers can be forced to defend themselves against injury claims by smokers in state courts and must pay damages if they conspired to deceive the public about the true dangers of smoking.
The 7-2 ruling does not mean that juries ultimately will rule that the cigarette makers--rather than the ex-smokers themselves--are responsible for the damage to smokers’ health. But it lifts a legal shield that has helped protect the tobacco industry from such litigation for more than 25 years.
Until Wednesday, the 1965 federal law requiring cigarette makers to put a warning label on their packs had been interpreted by lower courts as blocking lawsuits seeking damages under state personal injury statutes.
Wednesday, the Supreme Court said the companies’ “duty not to deceive” is not preempted by federal law.
Justice John Paul Stevens, writing for the majority, said plaintiffs will not be able to collect damages merely by offering evidence that cigarette advertising and promotions “tend to minimize the health hazards associated with smoking.” They will have to prove that tobacco companies intentionally sought to mislead smokers about the dangers.
Some spokesmen for the tobacco industry predicted that the decision will have little practical effect. Walter Cofer, a Kansas City lawyer and counsel for Philip Morris, doubted that many jurors would buy the claim that smokers were unwittingly deceived into thinking that their habit was risk-free.
“The reason that cigarette companies have done so well with these sorts of cases is the innate belief by juries and the American public in general that along with the freedom to choose to smoke comes responsibility for that choice,” Cofer said. “And there’s nothing about this opinion which changes that.”
No tobacco company has ever paid a claim to an ex-smoker, attorneys say.
Nonetheless, many legal experts said Wednesday’s decision will offer broad new avenues for legal attacks on tobacco companies--including the opportunity to explore company files for evidence that manufacturers were aware of hazards associated with their products but kept such knowledge secret while publicly denying or downplaying the threat.
“This will transform the public’s understanding of the tobacco industry,” predicted Alan B. Morrison, counsel for the Public Citizen Litigation Project. “All the bad things in their files will be discoverable (by plaintiff’s attorneys) and admissible in court,” he said.
In other industries involved with materials that pose health hazards, including asbestos and some carcinogenic chemicals, the discovery proceedings permitted in civil cases have unearthed masses of evidence that supported damage claims.
Lawyers for cancer-ridden smokers have repeatedly contended that the tobacco firms had “fraudulently misrepresented” the safety of cigarettes over the years. They have also argued that the industry had engaged in a “sophisticated conspiracy” to downplay the hazards of smoking.
Stevens’ opinion cited these claims as representative of the kinds of allegations that now can be tested in state courts.
Until recent years, spokesmen for the cigarette makers typically responded to new reports on the danger of smoking by asserting that there was “no evidence” to prove that smoking actually causes cancer.
Those statements could come back to haunt the tobacco industry.
Under the high court’s ruling, lawyers for former smokers or their survivors now can pursue damage claims in state courts and seek files from the industry to buttress their cases. If tobacco industry officials are shown to have lied to the public to conceal the true danger, angry juries could force the industry to pay multimillion-dollar punitive damage awards.
“This decision gives the green light to those claims. And I think there is a potentially massive liability on the part of the tobacco industry,” said Laurence H. Tribe, a Harvard law professor who represented the family of a New Jersey woman whose case was the basis for Wednesday’s decision. The woman, Rose Cipollone, brought suit against three cigarette makers in 1983 but died of lung cancer a year later. Her family has continued the suit since then.
About 50 million American adults continue to smoke and an estimated 3,000 teen-agers take up the habit every day, the American Lung Assn. says.
The U.S. Surgeon General’s office estimates that 434,000 Americans die each year from smoking or smoking-related illnesses, more than the combined number of deaths resulting from alcohol, auto accidents, fire, AIDS, illegal drugs, suicides and homicides.
In the 1980s, American makers of asbestos were driven into bankruptcy because of ruinous lawsuits. So was the A. H. Robins Co., maker of the Dalkon Shield, a birth-control device that was found to cause infections in women. In both instances, lawyers for plaintiffs were able to obtain industry records showing that company officials knew or suspected that their products were dangerous but failed to warn the public.
However, smokers--unlike shipyard workers exposed to asbestos or women who tried the Dalkon Shield--cannot claim that they had no inkling that their habit could ruin their health.
Much will depend on state laws and juries. Ex-smokers in California may still be blocked from pursuing claims because of a 1987 law that bars damage claims against the makers of products that are “known to be unsafe by the ordinary consumer.”
But most states allow people to seek damages for products that were falsely advertised, that failed to live up to a company’s promises or that carried a danger unknown to the buyer.
In 1983, lawyers for Cipollone, a longtime smoker who was dying of lung cancer, filed a series of such claims under New Jersey law. The cigarette makers countered that these claims were barred by the federal cigarette-warning-label laws of 1965 and 1969.
A jury concluded that Cipollone was 80% responsible for her own death, but nonetheless awarded her family $400,000 in damages. A U.S. appeals court in Philadelphia threw out that verdict and ruled that the federal law preempts any such claims under state law.
The only dissenters were Justices Antonin Scalia, a cigarette smoker, and Clarence Thomas, a cigar smoker. They said the federal law entirely barred these damage claims under state law.
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