Only $50 Million

Jacob Sullum | March 22, 2006

Yesterday the U.S. Supreme Court declined to hear Philip Morris' appeal of a $50 million punitive damage award in a case brought by a California man, Richard Boeken, who got lung cancer after smoking Marlboros for decades and died shortly after the verdict at the age of 57. That award, set by a state appeals court, was modest compared to the $3 billion the jury had in mind, and it fell within the 9-to-1 ratio between punitive and compensatory damages the Supreme Court seems to favor as an upper limit. An Oregon tobacco case where the ratio is about 152 to 1 is a more likely candidate for Supreme Court review.

My own view is that the Boeken's widow should not get the $50 million in punitive damages or the $5.5 million in compensatory damages (or the $26 million in interest), for the simple reason that her husband knew smoking might kill him but chose to do it anyway. No amount of outrage about Philip Morris' artful evasions can change that basic fact.

Putting aside the assumption-of-risk issue, this case highlights some of the problems with punitive damages. To begin with, they are explicitly intended to punish bad behavior, which is usually the function of the criminal justice system, as opposed to compensating victims of the bad behavior, which is supposedly the focus of the civil justice system. Hence it does not really make sense that the plaintiffs are the ones who get the money, which is essentially a fine by another name. More important, defendants do not receive the same protections they would if they faced criminal prosecution. In addition to a lower standard of proof and fewer procedural safeguards, there is no statutorily specified limit to the punishment, which is why the Supreme Court has gotten into the business of second-guessing punitive damage awards, finding that they violate the 14th Amendment's guarantee of due process when they get too high.

At the same time, as Justice Antonin Scalia has emphasized, any ceiling (such as the 9-to-1 guideline) is bound to be arbitrary. Maybe the problem is that fines should be imposed according to laws that establish upper limits in advance, instead of being set by jurors who pull a number out of thin air to express their indignation.

Help Reason celebrate its next 40 years. Donate Now!

Try Reason's award-winning print edition today! Your first issue is FREE if you are not completely satisfied.

|3.22.06 @ 10:58AM|#

simple reason that her husband knew smoking might kill him but chose to do it anyway

You know...what bothers me is whenever someone criticizes these type of awards, they always fail to mention that in many / most of these cases, the cigarette companies were INSISTING that there was no proof that cigs caused cancer and that any correlations found were mere coincidence and not proof of causality. They also doctored their "science" to keep the public in the dark about the true risks.

If this isn't a compelling reason for punative damages, then I don't know what would be.

You can debate all you want about whether people should know or shouldn't have known that smoking caused cancer, but when a corporation actively puts out false information and misleads their customers and the general public about the real risks then they should be held accountable -- and big punative damages are a great way to not only punish the company, but to deter other companies from following in those footsteps.

|3.22.06 @ 11:14AM|#

My own view is that PM should not complain about the $50 million in punitive damages or the $5.5 million in compensatory damages (or the $26 million in interest), for the simple reason that PM knew that false advertising could lead to large legal liability but chose to do it anyway. No amount of outrage about the dead smoker's stupidity can change that basic fact.

Baylen Linnekin|3.22.06 @ 11:14AM|#

I don't know enough about the points Chicago Tom raises to criticize them, but if it comes down to a fight between "I am ultimately responsible for my health" v. "A company whose products I use is ultimately responsible for my health," I'd err on the side of the former every time. (Especially in light of the fact that virtually every product sold is rumored by some group to cause cancer.) This leads me to believe Boeken's wife deserves no compensation.

Call it the "Boeken Widow Theory".

|3.22.06 @ 11:25AM|#

Destroy the money. That should be just as punishing to the company.

I believe the standard argument against schemes that don't allow the plaintiff to collect punitive damages is that they're needed to pay the lawyers. If the lawyers don't have a chance to win big, they're not going to pursue cases and so companies and individuals will escape penalties that they get under the current system.

I think the moral hazard associated with punitive damages going to the plaintiff is much greater than the problem of too few lawsuits, but I'm not going to spend much time making such a case here. I just wanted to point out that destroying money doesn't destroy wealth.

|3.22.06 @ 11:27AM|#

if it comes down to a fight between "I am ultimately responsible for my health" v. "A company whose products I use is ultimately responsible for my health," I'd err on the side of the former every time.

True, but in order to make a responsible decision you have to have access to correct facts first. When the cigarette companies were insisting that not only was there no link between smoking and cancer, but that smoking was good for your health because it would calm your nerves and whatnot, then I'd say the cigarette companies share a lot of the guilt. Maybe not $50 million worth of guilt, but a substantial amount nonetheless.

I don't think people should be allowed to sue McDonalds because Big Macs made them fat or raised their cholesterol level, but that is because everybody knows Big Macs can do that. But if McDonalds had spent the last several decades insisting that Big Macs were good for your health, and an excellent way to lose weight and reduce the chance of developing heart problems, then I'd support the idea of Big-Mac-eater lawsuits.

|3.22.06 @ 11:31AM|#

They also doctored their "science" to keep the public in the dark about the true risks.

Why should they be doing any "science" in the first place? I don't think they ever had any obligation to show that their products were safe (or not safe), but they did have an obligation to be honest if they failed to keep their mouths shut.
And, seriously, I'd like a concrete example of their doctored science: was anyone ever charged with a crime in that regard?

If this isn't a compelling reason for punative damages, then I don't know what would be.

The fact that the dangers of tobacco were common knowledge before cigarettes existed.

http://tobacco.harpweek.com/ has a lot of information about the perceived dangers of tobacco in the 19th century.

TOBACCO AND I. (1859)
...
Why should I smoke? why light the Feu
Follet that kindles countless woes?
Why "nigger-head" or "pig-tail" chew,
Or make an ash-hole of my nose?

It dulls the sense, defiles the breath,
Depraves the taste, depletes the purse;
Poisons the very air with death,
And makes an everlasting "muss."
...

|3.22.06 @ 11:35AM|#

Tom hit it right on the nose. The sleazy scum drug dealers of the tobacco industry have lied, and continue to do so, about the health effects of smoking. For that, they should be suspetable to these liabilities. The SCOTUS, being all right wing scum of the lowest order, may argue that this is a bullshit "personal responsibility" issue, but the facts are that the tobacco companies lied and people died. All you phony libertarians just can't accept that coirporations can ever be liable for their actions. Personal responsibility somehow just doesn't apply to the PERSONS of a corporation.

Idiots.

JMJ

|3.22.06 @ 11:39AM|#

Jennifer,

Hypothetical question: What if a fast food chain knew about some health risk in their product that was not widely, publicly known, and the chain simply decided to stay quiet about it?

|3.22.06 @ 11:47AM|#

Jennifer, I think that's exactly right. There's a reason why companies aren't allowed to make false claims about their products, nor to conceal known, harmful effects from the public.

People quickly say "well you chose to use that product, so let the chips fall where they may."

But they don't say "well, you chose to manufacture that product, and when you figured out it could kill people, instead of warning them and letting THOSE chips fall where THEY may, you lied to prevent that happening."

I'm not going to get into the factual debate about who said what or when. A jury found that it happened, and that's all I really know. Yes, they can be fooled, but lawyers aren't magic wands. If we were, all cases would end in a draw, since the lawyer-magic emanating from both sides would cancel each other out, and the jurors wouldn't know what to think.

As to Ron's assertion about how the plaintiff shouldn't get the money, well.... they were the ones who were harmed, so if not them, then who?

Oh, and if you make that the rule, that plaintiffs don't get it, guess who's next in line? The state! You betcha! And if you think lawsuits are out of control now, you ain't Spitzer'd nothing yet. Implement that rule, and half the citizens of America will be public employees. The police will wear solid gold boots and carry diamond studded night sticks. In the name of national security. And no, even with all that extra money it'd rake in, the govt won't lower your taxes any.

|3.22.06 @ 11:49AM|#

Why should they be doing any "science" in the first place?

They produced their "science" to refute claims of cigs being bad for you. I am not saying that they are / were required to publish science in support of their product....but they did...for whatever reason.

Once they made that choice then they are liable for the consequences of their doctored science.

And, seriously, I'd like a concrete example of their doctored science: was anyone ever charged with a crime in that regard?

I don't believe doctoring science is a criminal issue, but a civil issue. No one goes to jail for it, but they get sued. And they have lost repeatedly. That is similar to a criminal conviction.

|3.22.06 @ 11:50AM|#

Considering a common 1930s nickname for cigarettes was "coffin nails," I have a hard time believing the claims of the tobacco companies fooled anybody.

|3.22.06 @ 11:54AM|#

Hypothetical question: What if a fast food chain knew about some health risk in their product that was not widely, publicly known, and the chain simply decided to stay quiet about it?

I still have a problem with that--it's similar to me selling a car where I know the gas tank will overheat and catch fire if it's driven for more than an hour, but hey! The customer never specifically asked me if the gas tank could withstand such pressures!

|3.22.06 @ 11:58AM|#

AC, there are millions of idiots out there who buy into what corporate America tells them. Where the hell have youi been?

JMJ

The SCOTUS, being all right wing scum of the lowest order, may argue that this is a bullshit "personal responsibility" issue,

With friends like these.

Jersey, buddy....I'm not trying to tell you how to act/post, but toning down the inflammatory rhetoric would go a long LONG way towards generating a serious discussion (if thats what you want to do)

. All you phony libertarians just can't accept that coirporations can ever be liable for their actions.

Tossing around these types of generalizations and attacks merely reinforces the whole "crazy leftist " notion that lots of people have.

Personally I find it offensive when Liberals get attacked with sterotypes and hyperbolic sweeping generalizations, and its just as offensive to see a liberal do the same to others.

Again, I'm not telling you what to do -- but man reading your comments sometimes I have to wonder -- if you aren't trying to be a troll -- then what exactly are you trying to accomplish? Alienating everyone even people who are sympathetic to your point of view?

MP|3.22.06 @ 12:00PM|#

the cigarette companies were INSISTING that there was no proof that cigs caused cancer and that any correlations found were mere coincidence and not proof of causality

Was Philip Morris insisting? Is there evidence that Richard Boeken was even aware of this insistence? Without having first-hand knowledge of the evidence presented at trial, I don't feel qualified to take a position. However, I'm skeptical of the "tobacco companes are all deceitful" meme. I get particularly turned off by screamers like JMJ who say they are all still lying.

The Wine Commonsewer|3.22.06 @ 12:00PM|#

Jersey, you pay your money and you take your chances and anybody who smokes for 40 years and gets cancer and dies is just out of luck. Blaming PM is like an addict singing Got Dam The Pusher Man because he can't get straight, which is the entire mentality behind the drug war, and we all know how successful that's been.

And all that crap about lies and addiction is just that. If you want to quit, you do.

As an aside, those sleazy scum alcohol dealers can see the writing on the wall as well which is why (suddenly) we see all those annoying Please Drink Responsibly disclaimers on every ad in every medium.

|3.22.06 @ 12:02PM|#

Considering a common 1930s nickname for cigarettes was "coffin nails," I have a hard time believing the claims of the tobacco companies fooled anybody.

That isn't really the issue. Whether or not you "fooled anybody" -- and I am sure SOME people were fooled even though it MIGHT be a low number-- it isn't a question of how many people were fooled.

The issue is one of behavior and consequences for that behavior. Purposely and knowingly putting out misinformation and misleading the public about your product is punishable regardless of the effectiveness of your deceit -- you don't get a pass just because you aren't good / effective at lying.

|3.22.06 @ 12:03PM|#

I'm not sure that my car owner's manual has any specific information warning me to not drive the car into a brick wall. If I do so and get injured, whom do I sue for not telling me this?

Don't say it's just common sense. Common sense is subjective!

|3.22.06 @ 12:05PM|#

Ghost -- I'd say that company is taking a chance. With product liability, consumer protection, and disclosure laws being what they are, they're certainly open to being sued if and when that hidden danger manifested itself in a user of that product.

Every company that sells products does a cost benefit analysis of these things. All you can do is guess at the costs and hope you make the right decisions.
?

"All you phony libertarians just can't accept that coirporations can ever be liable for their actions. Personal responsibility somehow just doesn't apply to the PERSONS of a corporation."

Every time I read one of your posts I get the urge to do the Al Bundy thing. You know, where you take the remote control and point it at somebody pressing the mute button. Thank God I get to read your nonsense and not hear it.

Mmmmm....No Peg.

|3.22.06 @ 12:06PM|#

I'm not sure that my car owner's manual has any specific information warning me to not drive the car into a brick wall. If I do so and get injured, whom do I sue for not telling me this?

I think a better example is, "My car owner's manual assures me that driving into a brick wall is perfectly safe. In fact, it says that driving into a brick wall is a good thing to do, because it provides many fine health benefits. Look at these advertisements featuring handsome, avuncular doctors explaining why they recommend that their patients drive into brick walls!"

Ron Hardin|3.22.06 @ 12:10PM|#

The idea, back when there were still US light airplane companies and all this started, was that strict product liability would produce by free market mechanisms just the right amount of safety, with companies responding to the actual cost of malfunctions as encountered in lawsuits ; and there would not be, on the other hand, excessive safety either. The free market solves a hard regulatory problem.

Unfortunately, the juries want in addition to ``send a message'' and cost more than any company is willing to pay, which of course takes safety into bankrupcty instead.

So much for that plan.

Wonks do not yet know that no plan works, even free market ones.

|3.22.06 @ 12:13PM|#

"That isn't really the issue. Whether or not you "fooled anybody" -- and I am sure SOME people were fooled even though it MIGHT be a low number-- it isn't a question of how many people were fooled."

Sure it is. It has to be an issue of how many people were fooled. If that number is zero then where is the harm? Without harm to anyone there is no liability in tort law.

|3.22.06 @ 12:14PM|#

Not to excuse the lying vermin of Big Tobacco, but anyone who thinks/thought that smoking isn't bad for you (let alone good for you) is stupid as hell.

If people just listened to their bodies, we wouldn't even be having this debate. Does anybody not feel worse after eating McDonald's than they would have after eating healthy, organic, natural foods? Is anybody's aerobic exercise not made more difficult after smoking a square or 12? Our bodies are constantly telling us what they need and what is bad for them. Of course, many, if not most, people in our society need to be told shit like "Exercise good for ______" or "Eating healthy foods good for _______." Those of us in touch with our bodies (it's not that hard...) can just sigh and shake our heads at this.

None of this, of course, makes lying OK, but I don't feel much sympathy for those who were "duped."

|3.22.06 @ 12:20PM|#

"The issue is one of behavior and consequences for that behavior. Purposely and knowingly putting out misinformation and misleading the public about your product is punishable regardless of the effectiveness of your deceit"

Wrong again. In tort law in order for there to be liability there must be an injury.

|3.22.06 @ 12:23PM|#

Sure it is. It has to be an issue of how many people were fooled. If that number is zero then where is the harm? Without harm to anyone there is no liability in tort law.

So lies should only be punishable if people believe them? That's like saying that trying to commit a crime shouldn't be punishable unless the criminal actually succeeded.

"Attempted murder. What kind of a crime is that? They don't give Nobel Prizes for attempted chemistry."--Sideshow Bob

MP|3.22.06 @ 12:29PM|#

So lies should only be punishable if people believe them?

Don't confuse civil and criminal law. If someone lies to you, what is your basis for a suit against them, unless the lie led you to injure yourself?

|3.22.06 @ 12:35PM|#

"So lies should only be punishable if people believe them? That's like saying that trying to commit a crime shouldn't be punishable unless the criminal actually succeeded."

Well what theory of law could you possibly sue them for? The tobacco issue seems to me like a tort and not a crime. In which case there'd need to be an injury for them to be liable.

You can't compare it to a crime b/c under criminal law one is guilty of certain crimes regardless of injury.

|3.22.06 @ 12:42PM|#

|3.22.06 @ 12:43PM|#

WIKI: The effects of product liability really kicked general aviation in the 1980s, as airplane production declined rapidly. In 1985, Cessna Chairman Russell W. Meyer Jr., reported that between 20 and 30 percent of the cost of a new airplane represented product liability insurance. . . . The biggest "win" for all of general aviation, however, was the 1994 passage of product liability reform legislation, which led directly to an announcement from Cessna that production would resume. AOPA presented the first new Cessna 172 off the production line to Sharon Hauser, February 1, 1997 as the 1995 membership sweepstakes winner.

What the Wiki does not say: the effect of its insurance-induced bankruptcy on Cessna's US pension plans (if any).

|3.22.06 @ 12:44PM|#

In tort law in order for there to be liability there must be an injury.

Emme,

you are right, to an extent
I may have lierally misspoke when I said "it isn't a question of how many people were fooled".
But as long as someone, anyone is harmed, then there is standing to bring a liability case.

When I said it, I was talking about degree and effectiveness. If even one person in the whole country believed the claims of the tobacco companies and continued or started to smoke based on those claims then they have standing to sue.

In that context, when I say "it isn't a question of how many people were fooled", it is a correct statement. The point is that they didn't have to "fool the masses" they just had to fool somebody / anybody in order for their actions to be punishable. And they did fool some people. And some of those people have won in court.

|3.22.06 @ 12:49PM|#

If the cigarette companies didn't think their false advertising was fooling anybody, then why did they spend money on it?

To expose punitive damages law as a big sham? Low self-esteem? To impress Jodie Foster?

I don't get it. Big tobacco has been caught red handed multiple times over the years advertising to kids, lying about health risks, and on and on, but when they get the sued all of a sudden it's the "personal responsibility" of the smokers. Look, I smoke. I wouldn't sue any of the manufacturers because I'm under 40 and have no excuse - I know and always knew the risks. But for those who started some years earlier - they were lied to. It's no different than putting baby food labels on rat poisoning. And it damned well should be criminal. Screw this civil shit. They lied, they covered up, the fact that tobacco was a sure fire cause of certain diseases. That's criminal negligence and conspiracy.

JMJ

|3.22.06 @ 12:51PM|#

"The point is that they didn't have to "fool the masses" they just had to fool somebody / anybody in order for their actions to be punishable."

You're right. To a certain extent. The reliance on the misrepresentation has to be reasonable. Obviously in this case the court thought it was reasonable. I think that's what's being debated here.

|3.22.06 @ 1:10PM|#

Alcohol companies do not (with the exception of red wine producers) advertise their products as healthy. But, looking at most beer ads on tv, I see healthy, happy, young-looking people having fun. The ads do not depict those with marital problems, organ failure, cancer, and legal troubles that may be the result of overuse, or just use, of this fine product. Alcohol companies know of these deficiencies that are known to be inherent to use of their product, but they do not make any effort to warn their customers. More 50 milliion dollar lawsuits waiting to happen? What about the nanny left? Has all their outrage been spent on big tobacco, or will they jump on board for this one too?

Independent Worm,

Give the plaintiffs their compensatory damages, and require that the defendant destroy the amount of money set forth in the punitive damages. There's currently no easy way to do that, the closest one I can think of is shoveling a ton of cash into the furnace, but with the Fed's cooperation it should be much easier to do.

NOTE: I'm not saying that they should destroy real property that is valued at the amount of the punitive damages, but that they should destroy the exact same amount of cash that they'd have had to pay out to the plaintiffs. This will cost the owners of the company (whether it's private or public), but will not (directly) destroy wealth. There's a chance that the company will then be cash starved, which will lead to bankruptcy and that by dismantling the company, some wealth will be destroyed, but that chance is no higher than if the same amount of money were to be paid to the plaintiffs.

Since the money doesn't go into any government's budget, it doesn't behoove any particular branch or department of the government to enable more lawsuits. Although one could argue that by decreasing the money supply, you take pressure off the government that might otherwise prevent them from inflating the money supply, I don't think that argument flys. The total sum of all punitive damages isn't going to be enough to induce the federal government to participate in out-of-control lawsuits.

BTW, in case it's not obvious, I'm recommending this policy reform be applied to all punitive damages, not just those in this particular case.

|3.22.06 @ 1:28PM|#

anon2, what's so horrible about giving it to the plaintiffs that destroying it is prefarable?

|3.22.06 @ 1:31PM|#

I can't believe that ANYONE did not know smoking was bad for them.These people have to go in there and lie about that to get the money.Even as a teenaged moron I knew.

|3.22.06 @ 1:55PM|#

Can't speak for Anon2, but I understood his posts to mean that the windfalls from big punitive damages awards would overincentivize punitive damages suits. At least in a case like this where the lawyers get 40% of the money and they usually shovel some of it back into bringing more suits and trying to score another jackpot.

On the other hand, plaintiffs who lose their product liability suits do not make it to HnR as often as the ones who win. If Anon2 gets too much of his news from here, then he may be underestimating the frequency and size of sunk costs of these lost suits. Considering only plaintiff wins and not losses would naturally lead to underestimating the disincentive effect that these losses have, and for perceiving an imbalance where none exists.

Or maybe Anon2 is thinking about how the state governments are spending the tobacco settlement. Of course, that wasn't punitives, that was a contract. It is a kind of contract that would become much more common if there was any chance that cash would be shovelled into a furnace upon court order.

Havana(s) on $65 Billion a Day

The above link still seems relevant.

|3.22.06 @ 1:57PM|#

|3.22.06 @ 2:03PM|#

That's like saying that trying to commit a crime shouldn't be punishable unless the criminal actually succeeded.

"Attempted murder. What kind of a crime is that? They don't give Nobel Prizes for attempted chemistry."--Sideshow Bob

An attempted murderer has succeeded in attempting murder. Trying to commit a grave crime (murder, rape) is itself a crime. This is not comparable to tort law, where emme's correct: there must be harm for there to be a tort.

|3.22.06 @ 2:20PM|#

If the cigarette companies didn't think their false advertising was fooling anybody, then why did they spend money on it?

That's a valid point, but it doesn't prove that their advertising was false.

Absent concrete examples of "false advertising" and "doctored science," I'll have to assume that they're Urban Legends; the that a jury fell for something doesn't prove a damned thing in the real world.

I've recently heard a number of 1940s and 50s radio commercials for various cigs, and the worst claim they make is something like "doctors prefer Brand X over the others." Probably true, and also pretty harmless.

"A lung surgeon needs steady hands"
Circa 1960 Mad Magazine spoof on cig advertising.

|3.22.06 @ 2:23PM|#

"More important, defendants do not receive the same protections they would if they faced criminal prosecution."
They also don't risk any jail time.

|3.22.06 @ 2:27PM|#

Or maybe Anon2 is thinking about how the state governments are spending the tobacco settlement.

Now THERE is a great example of blatantly false advertising and an illegal scam - just business as usual for the gov't.

Clearly I grew up in an altered reality from those of you arguing that the tobacco industry has been declaring its product "good for you". I've nevered heard them say that. One has to reach back into the middle of the last century for that sort of advertising. And since 1964 ALL cigarettes in America have had warning labels of increasing severity declaring the harm tobacco may cause.

And yet some people smoke. It's their right. And their risk.

They deserve no compensation for compromising their health. As stupid as I know some people are, I doubt ANYONE is truly stupid enough, during the last 40 years, to seriously believe smoking has no risk. But if I'm wrong, and they are THAT stupid, perhaps the Darwin effect is best for all.

|3.22.06 @ 2:31PM|#

Some quotes from those who actually heard the evidence:

"The very conduct that injured Boeken was directed at all smokers in the United States, repeated over many years with knowledge of the risk to human life and health, and is probative of intentional deceit. The national marketing of a defective product, knowing that ordinary consumers expect it to be less hazardous, knowing that thousands of people will die due to their addiction, is probative of a willful and conscious disregard of the danger to human life. . . .

"[T]he extreme reprehensibility of increasing addictiveness by manipulating additives, gaining smokers by fraud, and marketing a product that is more dangerous than ordinary consumers expect, knowing that serious physical injury and death will result in many smokers, does justify a ratio of at least 9 to 1. We round off the figure at $50 million."

-- California Supreme Court, in the Boeken appeal. (April, 2005)
http://caselaw.findlaw.com/data2/californiastatecases/B152959A.DOC

--------

"Effective deterrence involves more than just prohibiting conduct, and requires changing mindsets. Philip Morris has, in the past, demonstrated a willingness and ability to achieve its ends by creative means, and the Court cannot predict what those means might in the future be for a corporation with enormous resources profiting from the sale of a life threatening product. Philip Morris can, of course, continue to lawfully sell its product, but it must do so with a mindset far different from that evidenced by its corporate history to date, Such a sea change may have began to occur at Philip Morris, but, in the exercise of independent judgment in light of all the evidence at trial, the Court finds that deterrence in the form of substantial punitive damages is both necessary and proper to prevent Philip Morris's return to the old mindset or its crafting of ever-more ingenious ways to generate wealth through tortious means. . .

"Philip Morris correctly argues that "[t]he likelihood of future damage awards may also be considered" in assessing the reasonableness of a punitive damages award. . . . Given the evidence presented at trial here, and the fact that Philip Morris refused to accept even a scintilla of responsibility for the harm it has done to Richard Boeken and other similarly situated consumers of its products, the Court does not doubt that Philip Morris will continue to incur large punitive damages awards in California and elsewhere. Given the law that a party is fully liable for injuries to another when that party's tortious misconduct constitutes a substantial contributing factor to the injury suffered, it appears highly likely that future juries will continue to hold Philip Morris liable for large compensatory awards, even when they believe the plaintiff's conduct (choice to smoke) also constitutes a substantial factor contributing to the injuries. In this setting, when Philip Morris refuses to accept any responsibility, moral or otherwise, it is easy to see how juries will predictably find the company deserving of substantial punishment.

"If Philip Morris continues to make the argument, attempted with this jury, that even though its highest executives may have lied to the American public about the risks of cigarettes, it bears absolutely no moral or legal responsibility for the deaths of people who consumed its products, because every consumer should have known from the outset that the executives were not truthful, then, in this Court's view based on the evidence examined through weeks of trial, Philip Morris is entirely correct that it will continue to incur substantial future compensatory and punitive damage awards by other juries."

-- Superior Court Judge Charles W. McCoy, in his ruling which cut the Boeken jury's damage award from $3B to $100M, and denied Philip Morris' request for a retrial, Aug. 9, 2001.
http://www.tobacco.org/Documents/010806boeken.html

--------

"If you are deliberately getting kids addicted, then don't you DARE try to use 'individual responsibility' as a defense. . . . .

"Then I thought about how many people these guys have killed. And I thought $3 billion doesn't even begin to do justice for all the evil they've done."

-- Boeken jusror Peter Brosnan, in a letter to Elizabeth Whelan (June, 2001)

|3.22.06 @ 2:37PM|#

Mr. F. Le Mur - I rememeber seeing an old cig sign, for a menthol cig I think, and it did say something about it being better for you than regular cigs or something along those lines. At least "more soothing". And it was "recommended" by doctors. Shit like that. But I don't remember any ads saying they were actually good for you.

|3.22.06 @ 2:39PM|#

"Trying to get kids addicted"? Has ANYONE ever heard of the tobacco companies trying to make it legal for kids to buy tobacco products? It's against the law. Has ANYONE ever heard of the tobacco companies urging kids to break the law? No, I thought not. So that falls to the ground.

Let's keep it real. Brosnan's comments are emotional hyperbolic nonsense.

|3.22.06 @ 2:52PM|#

Despite the people here who claim that cigarette companies lied, they NEVER extolled the health benefits of their product on every pack, whereas there was a big warning on the side of every pack since the 70's that said smoking was hazardous to your health. Basically you have to lie to yourself if you think the praises for cigarettes ever overshadowed the health warnings.

R C Dean|3.22.06 @ 3:00PM|#

Whether or not you "fooled anybody" -- and I am sure SOME people were fooled even though it MIGHT be a low number-- it isn't a question of how many people were fooled.

Sure it is. In order to prove up a case for fraud you have to show either that the alleged victim was fooled, but that a reasonable person would have been fooled.

So lies should only be punishable if people believe them?

You got it. No harm, no foul.

That's like saying that trying to commit a crime shouldn't be punishable unless the criminal actually succeeded.

For many crimes, there is no ancillary "attempted" crime. There is, for example, no attempted speeding, where you mash your pedal to the floor but your feeble Yugo can't break 55 no matter what.

For crimes where an attempt is a crime, it is usually an inflater - for example, attempted murder can't be committed without also committing assault.

|3.22.06 @ 4:00PM|#

"There is, for example, no attempted speeding, where you mash your pedal to the floor but your feeble Yugo can't break 55 no matter what. "

Here's an interesting law school hypo for you. What if you're an english guy and you really hate Americans. So you decide to go to America and when you arrive you get in your car and decide to drive on the wrong side of the street intending to play bumper cars with all the oncoming traffic hoping to kill some miserable americans. Problem is b/c you're english you're actually going 60 mph on the correct side of the american street.

Attempted murder?

|3.22.06 @ 4:06PM|#

All punitive damages awards should go to the Pro Libertate Foundation. We'll spend the money wisely, let me assure you.

Why Pro Libertate Foundation? Because the plaintiff and his attorney shouldn't get a nickel of the punitive damages award (that's what compensatory damages are for; punitive damages are meant to punish, like the comfy chair), and I need a new job as a highly compensated non-profit director.

|3.22.06 @ 4:10PM|#

"Because the plaintiff and his attorney shouldn't get a nickel of the punitive damages award (that's what compensatory damages are for; punitive damages are meant to punish, like the comfy chair), and I need a new job as a highly compensated non-profit director."

Problem is, what if you have someone who is a repeat tort feasor? Do you think compensation is enough of a deterrence?

|3.22.06 @ 4:31PM|#

I'm not against punitive damages; I'm against punitive damages being part of the award to the plaintiff and the plaintiff's counsel. I think it really corrupts the system. Nor do I think the government should get control of such awards, because then we'd see the laws change to make punitive damages easier to get.

|3.22.06 @ 4:36PM|#

Which is why my foundation is so desperately needed.

Pro Libertate Foundation. For the children.

|3.23.06 @ 9:41AM|#

I'm not against punitive damages; I'm against punitive damages being part of the award to the plaintiff and the plaintiff's counsel.

How do you feel about putting executives and corporate board members in jail (more frequently than we do under current law I mean)? Some CEO & veepee jailtime in place of these staggering punitives. I think that would send a punitive message without giving lawyers a windfall.

|3.23.06 @ 9:55AM|#

I think that would send a punitive message without giving lawyers a windfall.

It always strikes me funny how people will suggest anything to keep lawyers from making money. The perception is, I take it, that lawyers are unjustly overcompensated; that they get paid too much for the little they do.

Now me, I used to believe that too. But what I took from that was not "I'm going to figure out ways to limit what lawyers can earn." No. I concluded, "fuck, man, I need to get my ass to law school."

Gene|3.23.06 @ 11:03AM|#

>>How do you feel about putting executives and corporate board members in jail . . . .?

Funny you should mention. The following is from the Feb. 2 ruling by the Supreme Court of Oregon upholding the Williams case's $80M judgement against Philip Morris:

"Philip Morris's actions, under the criminal statutes in place at the beginning of its scheme in 1954, would have constituted manslaughter. . . . Thus, the possibility of severe criminal sanctions, both for any individual who participated and for the corporation generally, put Philip Morris on notice that Oregon would take such conduct very seriously . . . .

"Philip Morris's conduct here was extraordinarily reprehensible, by any measure of which we are aware. It put a significant number of victims at profound risk for an extended period of time. The State of Oregon treats such conduct as grounds for a severe criminal sanction, but even that did not dissuade Philip Morris from pursuing its scheme.

"In summary, Philip Morris, with others, engaged in a massive, continuous, near-half-century scheme to defraud the plaintiff and many others, even when Philip Morris always had reason to suspect -- and for two or more decades absolutely knew -- that the scheme was damaging the health of a very large group of Oregonians -- the smoking public -- and was killing a number of that group. Under such extreme and outrageous circumstances, we conclude that the jury's $79.5 million punitive damage award against Philip Morris comported with due process"

http://www.publications.ojd.state.or.us/S51085.htm

|3.23.06 @ 12:26PM|#

Some quotes from those who actually heard the evidence:

Still no actual examples, just a bunch of lawyers' yapping. Give the land-sharks a few more years, if not already, and they'll be spewing the same "defective product" crap about advertising for hamburgers, booze and motocycles.

Nothing is harmless.

Oh yeah - IIRC, Evil Big Tobacco generally wins about 100 bogus lawsuits for every one they lose. How about posting the lawyer-crap from the cases they won?

The Wine Commonsewer|3.23.06 @ 11:48PM|#

Media, that link was fab and funny.

I think we need a class action suit against the car companies who continue to market a dangerous device that they know will kill more than 40,000 people in the US alone THIS year.

|3.24.06 @ 10:39AM|#

>>>Some quotes from those who actually heard the evidence:

>>Still no actual examples, just a bunch of lawyers' yapping.

Uh, they're judges, actually. A technical difference to you, perhaps, but one taken quite seriously in some parts of society.

I posted links to the decisions in which the various judges cite their reasons, and there is further information available online. That is, for anyone who actually cares to examine the issue, and not instantly discount anything that doesn't pre-fit his or her prejudice.

I posted Boeken decisions because that's what was being critiqued. It was obvious people were just opining away, without taking the trouble to read much beyond the headlines.

Reason Magazine

Get Reason E-mail Updates!

Site comments/questions:

Media Inquiries and Reprint Permissions:

Editorial & Production Offices:

advertisements