The Smoke Hanging Over Tort Cases
Rose Cipollone’s day in court finally arrived . . . about eight years after her death. Last week’s Supreme Court decision, rightly opening the door wide to some damage suits by smokers against the tobacco industry, came too late for Cipollone, who died of lung cancer after smoking for four decades, but is nonetheless a victory for others.
The court had to decide whether federal laws requiring cigarette packages to carry health warnings nullified Cipollone’s claim, which alleged injury as a result of intentional deception by the cigarette manufacturer. The court rejected arguments that cigarette makers had a legal duty to go beyond the warning-label requirements, but, importantly, it did permit suits based on allegations of deception and conspiracy to conceal the dangers of smoking prior to the surgeon general’s 1965 warning.
The scientific evidence of those dangers is now solid. By the time the surgeon general issued his now-famous warning, more than 7,000 published reports, some dating to the 1920s, had examined the link between smoking and illness. Tobacco-related diseases are now the leading killers in the United States. And, ominously, the staff of the U.S. Environmental Protection Agency recently recommended that secondhand tobacco smoke be designated a “Class A carcinogen,” putting it in the same category as asbestos, benzene and deliberately inhaled tobacco smoke.
Cipollone’s heirs will have an opportunity to prove her claims that the tobacco companies deliberately concealed the risks of smoking, and that by lying about damaging information in their possession the manufacturers breached a legal duty not to deceive.
But proving these claims will not be easy. For that reason, the Cipollone victory may well be a Pyrrhic one. If so, she is, sadly, a fitting symbol for many thousands of tobacco and other mass tort claimants still waiting for their day in court.
Although juries have been criticized for awarding generous sums to plaintiffs with questionable claims, few juries in smoking cases have embraced claims of manufacturer liability. Industry lawyers assert that no tobacco company has ever paid a claim to an ex-smoker, in this case one who continued to smoke for many years after 1965. Although it could be argued that Cippolone contributed to her own death, the court rightly ruled that her heirs are entitled to a trial because the tobacco companies may have withheld adverse health information.
To get their new trial, Cipollone’s heirs must wait their turn on crowded trial court dockets. Also standing in line are an estimated 100,000 asbestos claimants, plus thousands more who allege injury from causes ranging from radiation to silicone implants. Efforts to speed the processing of these claims have been largely unsuccessful. Despite the Supreme Court’s good decision, the wait for everyone, including Rose Cipollone’s heirs, continues to be intolerably long.
