Another Smoke Signal

What does Friday’s $144.8-billion punitive damage verdict in a smoking case mean? Even apart from all the zeros after the dollar sign, plenty. The jurors in the case were clear in saying they intended to send a message about the duplicity of the tobacco industry. “We had a sense of mission,” the foreman said in an interview.

The verdict shows that the well of public anger over the industry’s reckless and deceptive behavior in recent decades is not empty.

The crushing award against the tobacco companies in a class action brought on behalf of sick Florida smokers is a record, but it probably won’t stand. For one thing, Florida law bars damage awards that could bankrupt a business, and the cigarette makers, certain to appeal, have already claimed they can’t possibly pay this amount. Moreover, if any punitive award stands after appeal--and if the entire case isn’t thrown out--damages won’t be payable until after mini-trials for the hundreds of thousands of class-action members who might be entitled to a share. This could take decades.

The award is excessive by any standard, but the six-member jury that sat through the two-year trial clearly meant it to be so. In a first-stage verdict last July, the jury ruled that smoking was indeed a cause of 20 different diseases and that cigarette makers had committed fraud in falsely denying the risks and addictive power of smoking. Tobacco industry officials “lied to the American public,” the jury foreman said. “They devastated millions of lives.” All true, though of course smokers were well warned of smoking’s dangers by government and medical authorities.

Rolling the dice in the tort liability system is hardly the best way to make public policy. One unintended consequence of this verdict, for example, is that there is now cause for concern among the states and localities expecting hefty annual payments from the cigarette makers as part of the 1998 settlement intended to reimburse state and local governments for the public costs of treating sick smokers. After paying $144.8 billion, could the companies make good on their $206-billion commitment? This is a point the tobacco companies are making, over and over. Still, the companies have mostly themselves to blame for the Florida outcome.

The verdict should also be read as an expression of frustration directed at the industry’s loyal benefactors in Congress and their refusal, year after year, to hold the cigarette companies accountable for their dishonesty and the harm they caused. This message, beyond the numbers, is one that Congress should listen to.