How to Make the Tobacco Companies Pay for Cancer
Kupferberg, Seth
How to Make the Tobacco Companies Pay for Cancer Almost a million Americans have died of lung cancer in the 13 years since Smoking and Health, the Surgeon General's advisory committee's report,...
...Torts is an especially potent branch of the law because of the way they work out financially for the lawyers who represent people seeking damages...
...at any rate, their ayareness of its dangers is of far smaller magnitude than their awareness that smoking will make them seem impressively sophisticated to their friends...
...And that aside, the decisions drew distinctions that seem merely arbitrary . One of the cases involved Frank J. Lartigue, a resident of New Orleans who had died of lung cancer in 1955 when he was 65 years old, aft& 55 years of smoking...
...What 'r the reason-the popularity of eking, the power of the tobacco c-- mpanics...
...The power company wasn’t running advertisements saying climb our pole...
...The best of them are razorsharp, money-hungry, and very aggressive indeed...
...Never mind that pre-1963 smokers didn t know for sure that smoking caused cancer-neither did the companies...
...And, when they are, the cost of cigarettes will soar until they reflect cigarettes’ true social cost...
...If they win, they get a sizable hunk of the damages, usually more than 30 per cent...
...Despite the tobacco companies’ counterarguments, an appellate court said there was a “convincing case” that Lartigue had been killed by smoking...
...If the driver can sue, why can’t the smoker...
...They could be forced to foot the bill for lung cancer-a bill that would be so astronomical it would force the companies to think very seriously about how they might stop killing people...
...The legal doctrines that can be amassed on the side of making the tobacco companies pay are strong enough to make another torts assault well worth trying...
...There's no question that smoking is one of America's worst health problems...
...both with juries and on appeal...
...Here are the right arguments: For years the courts have permitted automobile drivers to recover damages from other drivers who injure them...
...Although the government will take up the lance against carcinogenic foods without hesitation, the "appropriate remedial action" against cigarettes just hasn't materialized...
...Many smokers start for no more complex a reason than the desire to look grown-up, which is understandable, since when they start many of them aren’t...
...If the lawyers lose, they don't make any money...
...This sounds like an awesome, near-impossible task, but there is one way that could well work: going through the c<:-rts...
...They’re also among our best-publicized lawyers-flamboyant celebrities like Melvin Belli, the “king of torts” from San Francisco, and F. Lee Bailey...
...His heirs would sue to recover the darnings he would have brought in had he lived, plus compensation for medical expensis and pain and suffering...
...Usually these plaintiffs aren't wealthy enough to afford massive legal fees, so their lawyers often represent them on what's called a contingent-fee basis...
...In another, a jury decided that although the makefs of Chesterfields had advertised their product specifically as not harmful to health, a smoker who had gotten cancer from them was not entitled to damages...
...His widow sued two tobacco companies, introducing medical evidence that filled most of the 20 volumes of the trial record...
...How to Make the Tobacco Companies Pay for Cancer Almost a million Americans have died of lung cancer in the 13 years since Smoking and Health, the Surgeon General's advisory committee's report, officially declared there were strong links between smoking and cancer and other diseases...
...There is a statistical predictability of harm to those who choose to drive that is as clear as the predictability of harm to those who choose to smoke...
...bad memories of Prohibition-it's clear that the government isn't going to do much to wipe out smoking, no matter how desirable that may be...
...In another case, a jury decided that if smoking took 20 to 30 years to affect people, it was ‘.‘reasonably” safe-even though the foreman of the jury, himself a longtime smoker, was so impressed by the testimony at the trial that he quit ’smoking...
...But if a smoker knows that he can be harmed by cigarettes, doesn’t a driver know he can be harmed by automobiles...
...Certainly, if the companies have to pay for the damage they cause, they will have incentive to stop causing it...
...The lost earnings alone, in this case, would be about $800,000...
...Because so many smokers start as minors, another legal argument might be brought into play in the fight for damages: the doctrine of “attractive nuisance...
...Like food, the court’s opinion said, cigarettes are intended for such intimate bodily use that manufacturers should pay for h i m they cause even if it isn’t due to negligence...
...the companies for years, and, at first, said only that cigarettes “may be hazardous to your health...
...The doctrine properly applies only to those cases where the plaintiff on his own decides to take the risk, not to those where the defendant is trying to con him into taking it, standing at the other end of the rickety bridge saying “Come on...
...Scientists continue to uncover evidence of the habit's other dangers...
...The fact is that people usually don’t start smoking in full awareness of its dangers...
...If these energies were directed toward the tobacco companies they could have 51 powerful effect on the smoking business...
...The most infuriating aspect of the assumption of risk defense is that the cigarette companies have used it against people the companies persuaded to smoke...
...unlucky few...
...The Amer Cancer Society says that at least Ier cent of lung cancer cases are red by cigarette smoking...
...As things stand now, however, nobody is bringing litigation against the tobacco companies, mostly because of the resounding failure of a few such attempts in the early sixties...
...Still, Mrs...
...Otherwise it was assumed that the smoker h e w that he was gettinginto a dangerous business when he started, and so the tobacco companiesdidn’t have to bear the burden of his later ills...
...The case against the tdbacco companies is much stronger...
...For years they denied there was a risk, even claimed cigarettes were healthy...
...Through aggressive litigation, . obacco companies could be made tt ,)onsibla for the vast damage they do to the health of the American People...
...the lawyer’s fee, if he wins, would be well in excess of a quarter of a million dollars...
...Now their ads bear small warnings but their overwhelming message is that smoking is fun, sexy, social, pleasurable, and even reasonably safe, The risks are underplayed by comparisonwhen was the last time you saw an anti-smoking ad...
...Economics like that have created a special breed of lawyer: They call themselves personal-injury or plaintiffs’ lawyers, and they’re sometimes derisively referred to by their corporatelaw brethren as ambulancechasers...
...Assumption of the risk” is a legal doctrine that precludes recovery by plaintiffs who are aware of the peril of a course of conduct and deliberately choose to take the risk...
...Large judgments could put the cigarette companies out of business...
...Through this same system, people who become sick after eating infected canned food, or who are hurt by tools that lack adequate safeguards, bring suits against the makers of these products for the harm they've caused...
...By 1966 there had been four major ti.i-;bts involving sick smok of the decisions were masterpieces of jurisprudence...
...Their brains, drive, and greed can be harnessed to stir up powerful social winds...
...Making the manufacturer pay encourages him either to make his products safer or to raise his prices, thus spreading the cost of the danger among all the products' buyers instead of just a randomly hard-hit...
...It's a system for shifting the economic burdens of injuries onto those whose ' fault they are...
...But almost every newspaper and almost every magazine is filled with pleas from the tobacco companies saying smoke our cigarette...
...But although judges and juries have been unwilling, to date, to hold the tobacco companies liable for the injuries they cause, that unwillingness has sprung from logic that is by no means incontestable and arguments of the issue that were by no means complete...
...The doctrine that emerged from all this was that the tobacco cornpaniel had to bear responsibility only for the damages caused by faultily made cigarettes, those with some unusudl (for cigarettes) and fast-acting hazard...
...In one, the appellate court acknowledged that its original decision had been based on an incorrect understanding of Florida law, but reaffirmed it anyway, citing as authority a decision in Louisiana that had been b&ed on the original, wrong opinion...
...their income compares favorably with the successful corporate attorneys...
...The companies’ winning argument was that smokers had “assumed the risk” when they took up the habit...
...That leaves it to the citizenry to take on the tobacco companies...
...None...
...The courts applied this rule to cigarettesmokersandsaid, if you persist in smoking knowing the peril of cigarettes, you are to blame for whatever harm to yourself results...
...For the rest of us, successful damage suits appear to be the best way out of what is now a one-way system, one where the manufacturer has rights and the consumer has responsibilities...
...The courts were wrong then and would, I believe, rule otherwise today if the right arguments are presented to them...
...Let’s say ‘a 45-year-old executive making $40,000 a year gets lung cancer and dies...
...Lartigue lost-“it is reasonable to draw the line somewhere,” the court explained...
...And those damages can be very high...
...The cases can be won...
...The approach is that of the branch of law called torts: cases in which a person or corporation sues another alleged to have hurt him in some way, usually demanding money damages, If someone beats you tip, you sue him for the tort-and if you win, he has to pay your damages, besides whatever other penalties the government may exact because his action was a crime...
...Never mind that the present warning on cigarette packs was staunchly opposed by...
...The torts lawyers are the smokers’ secret weapon...
...So the good arguments are there...
...The tobacco companies are engaged in a constant, expensive campaign to get people to start smoking...
...If a child hurts himself climbing a powerline pole near a playground or drowns in someone’s front-yard swimming pool, courts almost always hold that damages are recoverable from the owner of the hazard on the grounds that he should have foreseen the possibility of an accident and acted to prevent it...
...For the lawyers, the ground seems fertile and far less than fully plowed...
Vol. 9 • June 1977 • No. 4
