Class Act


Although there is no definitive proof that smoking cigarettes is hazardous to your health, everyone knows it is. For decades, that has been the tobacco industry's official position.

Until recently, such incoherence was a target of ridicule rather than outrage. In 1994, Christopher Buckley published a successful satirical novel, Thank You for Smoking, that poked fun at the cigarette makers' never-say-die skepticism.

That same year, Representative Henry Waxman hauled the chief executives of the leading tobacco companies before his congressional subcommittee so they could repeat, under oath, the opinions for which their industry had long been notorious. Unlike Buckley, the dour California Democrat was not amused.

Confronted with a litany of diseases and asked whether smoking contributes to them, the tobacco executives said they weren't sure. One after another, they repeated the mantra "I believe nicotine is not addictive," as if it might carry them away from Waxman's tedious little show trial.

To Waxman, the tobacco industry's refusal to concede common knowledge was no laughing matter. It was an evil conspiracy.

The jurors in Engle v. R.J. Reynolds, a class action by Florida smokers, seem to agree. They recently concluded that the tobacco companies could be held liable for deceiving the public about the hazards and addictiveness of smoking.

Just how liable remains to be seen. Before any damages can be awarded, each plaintiff has to present evidence concerning his smoking-related disease and its connection to the defendants' conduct.

Along with the nine named plaintiffs, there are said to be about 500,000 potential class members. Since the jury has opened the door to punitive damages, there's no telling how big the payout could be.

In February a California jury ordered Philip Morris to pay a smoker with lung cancer $50 million in punitive damages. An appeals court later declared the award grossly disproportionate–and cut it to a mere $25 million.

If $25 million is considered reasonable in this sort of case, R.J. Reynolds et al. could, in theory, be on the hook for $12.5 trillion in punitive damages, nearly twice the nation's gross domestic product. And that's just in Florida.

The Engle jury probably won't be quite that generous, but only because you can't redistribute money that doesn't exist. Instead of $25 million per smoker, the plaintiffs' attorney, Stanley Rosenblatt, seems to expect something like $1 million.

No need to be greedy, especially if, like Rosenblatt, you get a cut of the total amount awarded. When he settled his last big case, a class action on behalf of airline attendants who claimed secondhand smoke made them sick, he got $49 million, tobacco researchers got $300 million, and the plaintiffs got nothing.

Rosenblatt's current clients may do better than that. Still, any money they receive will be taken from other smokers–people Rosenblatt would call victims of the tobacco industry–as cigarette makers raise their prices to cover the payments.

Rosenblatt shouldn't count his take quite yet. In addition to the possibility that an appeals court will decide the Engle class is hopelessly unwieldy, there is the small matter of showing that each plaintiff actually relied on misleading statements by the tobacco companies in deciding whether to smoke.

That will be hard to do, since warnings about the health risks of smoking go back hundreds of years. Persuasive scientific evidence of tobacco's hazards, which began to emerge in the early 1930s, has received wide attention since the '50s.

By 1965–three decades before the Engle jury declared cigarettes "unreasonably dangerous" and therefore "defective"–the Restatement (Second) of Torts, an authoritative legal guide, specifically cited tobacco as a product that was dangerous but not defective, since its hazards were widely known. Similarly, the difficulty of giving up the tobacco habit has been remarked upon for centuries, and systematic research was hardly necessary to confirm what people knew from everyday experience.

A few years ago, former Surgeon General C. Everett Koop noted that "the public knows about the deleterious effects of smoking," and "even smokers do not believe what they hear from the industry." Nevertheless, he said, "smokers and nonsmokers alike should feel misled by the tobacco companies and their deceptive practices."

Got that? We should feel misled, even if we weren't.

Like the tobacco companies, anti-smokers have a knack for self-contradiction. Somehow, though, their double-talk doesn't seem so amusing anymore.