Campaigning in the Court

The Misuse of the Legal System Against Unpopular Industries


(Presented at Hillsdale College, September 16, 1999)

A few years ago, the anti-smoking activist Stanton Glantz, together with four of his colleagues, published an annotated collection of tobacco industry documents called The Cigarette Papers. The book contrasted the industry's public positions on the hazards and addictiveness of cigarettes with its behind-the-scenes concessions. In the foreword, former Surgeon General C. Everett Koop observed 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."

That contradiction is at the heart of nearly all the lawsuits that have been filed against the tobacco companies. On the one hand, they are accused of saying things about their products that everyone knows to be false–that nicotine is not addictive, for example, or that the connection between smoking and lung cancer has not been conclusively established. On the other hand, they are accused of fooling people into believing these obviously untrue claims. In short, they are charged with concealing common knowledge.

It is a puzzling charge, and later I will talk about how it has fared in court. But first let me address the concerns of those who wonder whether I am projecting backward our current knowledge about smoking, mistakenly attributing it to people who were in fact ignorant of tobacco's hazards. Today we know that smoking can be a hard habit to break and that it tends to shorten your life, but perhaps the people who started smoking in previous decades were not so well-informed. Now that the veil has been lifted from their eyes by public servants such as C. Everett Koop, they realize how dangerous cigarettes are. But when they took up the habit, they had no idea the risks they were taking, because the tobacco companies tricked them into believing that cigarettes were safe.

This scenario does not withstand even the most cursory historical inquiry. The truth is that warnings about the health risks of smoking go back hundreds of years. King James I, in his 1604 Counterblaste to Tobacco, called smoking "a custome lothsome to the eye, hatefull to the Nose, harmefull to the braine, dangerous to the Lungs, and in the blacke stinking fume thereof, neerest resembling the horrible Stygian smoke of the pit that is bottomlesse." In every generation, tobacco's opponents have echoed him, attributing a long list of maladies to smoking.

"What difference is there between a smoker and a suicide," asked a Jesuit priest in 1658, "except that the one takes longer to kill himself than the other? Because of this perpetual smoking, the pure oil of the lamp of life dries up and disappears, and the fair flame of life itself flickers out and goes out, all because of this barbarous habit."

The 18th-century American physician Benjamin Rush warned that tobacco use could lead to impaired appetite, indigestion and other stomach disorders, tremors, palsy, apoplexy, tooth loss, and cancer of the lip. In an early version of what today is called the "gateway theory" of drug use, he also claimed that smoking fostered drunkenness because it created a peculiar kind of thirst that could be satisfied only by liquor.

In 1898 the Supreme Court of Tennessee upheld that state's ban on cigarettes, declaring them "wholly noxious and deleterious to health." "Their use is always harmful," said the court, "never beneficial. They possess no virtue, but are inherently bad, bad only. They find no true commendation for merit or usefulness in any sphere. On the contrary, they are widely condemned as pernicious altogether. Beyond any question, their every tendency is toward the impairment of physical health and mental vigor."

This view was not universally shared. Indeed, the cigarette bans that were passed by many states in the late 19th and early 20th centuries were a response to a surge in consumption that continued, more or less steadily, until the 1960s. But certainly no one thought he was doing his body any good by smoking, and persuasive scientific evidence of tobacco's hazards began to emerge in the early 1930s.

By the early '50s, those hazards were receiving wide attention. The attention has included thousands of scientific studies, the most important of which were covered in the general press; dozens of major government reports; countless newspaper and magazine stories; anti-smoking commercials, print ads, billboards, posters, pamphlets, buttons, bumper stickers, and school curricula; and cautionary labels in every tobacco ad and on every package of cigarettes. In the face of all these warnings, it is hard to argue that the tobacco companies succeeded in pulling the wool over anyone's eyes.

That does not stop people from trying. A few years ago I appeared on a radio show with a man named Alan Landers, a former model for Winston cigarettes who was suing several tobacco companies for manufacturing the product he used to promote. Then in his 50s, Landers had tried his first cigarette when he was 9 and had begun smoking heavily as an adult. He was diagnosed with lung cancer in 1988.

"At what point did you realize that smoking was bad for you?" the talk show's host asked him. "I got lung cancer," Landers replied, "and heard the truth about how the tobacco industry, the cigarette companies lie to you." He said the first surgeon general's warning, which began appearing on cigarette packages in 1966, did not impress him: "That label said, 'Cigarette smoking may be hazardous to your health.' Well, I lived in New York at the time. So is walking across the street. That meant nothing. From 1970 to 1984, the next label was, 'Warning: The Surgeon General has determined that cigarette smoking is hazardous to your health.' Well, that doesn't say the truth either. Now, 1984 to present, they finally came out and said, 'Surgeon General's Warning: Smoking causes lung cancer, heart disease, and emphysema.'…By the time I found out that it causes lung cancer, it was in 1984. I got my cancer in '88. It was too late."

The host asked Landers about the many statements by scientists and government officials regarding the hazards of smoking. "That means nothing," he said. "That's announced like one time, or put in a newspaper. I didn't happen to see that. What means something is what they're putting on their labeling….If I saw a pack of cigarettes, and it said, 'Addictive Poison,' I never would have smoked."

Landers's claim that he did not know about the link between smoking and lung cancer until 1984 is hard to believe. As I've noted, the hazards of smoking, especially the risk of lung cancer, have been widely publicized since the early '50s. In addition to all the scientific studies, the surgeon general has issued more than 20 reports on the health consequences of smoking, beginning in 1964. Voluntary health organizations have been urging smokers to quit for decades through posters, pamphlets, and commercials. In the late 1960s and early '70s, when Landers was hawking Winstons in magazine ads and on billboards, anti-smoking public service announcements appeared frequently on radio and TV. I was a little kid at the time, and I got the message. It's hard to see how anyone could have missed it.

The same is true of tobacco's addictive potential. Like the health hazards of smoking, this is something that people have been talking about for centuries. And unlike those hazards, it was not something that needed to be confirmed by rigorous research, because it was clear from everyday experience. James I's lord chancellor, Sir Francis Bacon, observed, "In our times the use of tobacco is growing greatly and conquers men with a certain secret pleasure, so that those who have once become accustomed thereto can later hardly be restrained therefrom." Johann Michael Moscherosch, a 17th-century polemicist, called smokers "thralls to the tobacco fiend," while Cotton Mather dubbed them "Slave[s] to the Pipe." Louis XIV's court physician described the tobacco habit as "a fatal, insatiable necessity…a permanent epilepsy."

In 1853 a temperance group awarded prizes for the best essays on "The Physical and Moral Effects of the Use of Tobacco as a Luxury." One of the winners wrote: "The slave of tobacco is seldom found reclaimable…I know full well the difficulty of reclaiming the drunkard. But the tobacco drunkard is still less hopeful. I have, indeed, in the course of the last quarter of a century, met with instances of entire emancipation, but they have been few and far between." Another said: "Most emphatically does tobacco enslave its votaries…It is the uniform testimony of those who have attempted to emancipate themselves from their attachment and bondage to tobacco, that to break the chains in which they are bound, requires the earnest efforts of reason, conscience and the will." In 1914 the industrialist Henry Ford published a collection of anti-cigarette diatribes. It was entitled The Case Against the Little White Slaver.

In light of this history, it's hard to take seriously the idea that tobacco's addictiveness was discovered only recently, due to the hard work of people like C. Everett Koop. Likewise, even if we assume that people did not take the first few centuries of warnings about tobacco's health hazards very seriously, no American who began smoking anytime in the last 30 or 40 years can reasonably claim he did not know that he was risking his health.

The obvious question, then, is how plaintiffs managed to prevail in lawsuits against the tobacco companies. For a long time, they didn't. The first tobacco product liability suit was filed in 1954, and hundreds followed. But for more than 40 years no jury awarded damages to a smoker for tobacco-related illness.

This is a remarkable fact, since juries are usually happy to take money from the deep pockets of big corporations and give it to sympathetic plaintiffs. You might think they would be especially inclined to do this with big corporations accused of selling a deadly, addictive product under false pretenses. The tobacco industry's success in fending off litigation had something to do with its notorious take-no-prisoners approach, which aimed to intimidate, exhaust, and bankrupt plaintiffs, preferably before they saw a courtroom. But it also owed a great deal to the common-sense notion that people who knowingly choose to do something risky should be responsible for the consequences.

That idea was reflected in the Second Restatement of Torts, an authoritative legal guide published by the American Law Institute in the mid 1960s. The Restatement said a manufacturer could be held liable for selling a product in a "defective condition unreasonably dangerous" to the consumer. It explained: "The article sold must be dangerous beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." The Restatement specifically added that "good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful." The reason was that tobacco's hazards were considered part of "the ordinary knowledge common to the community."

Three decades later, juries have begun to declare cigarettes "unreasonably dangerous," and therefore defective. But surely the health consequences of smoking are not less well known today than they were in 1965. What has changed?

Arguably, the public's belief in personal responsibility has eroded. According to the Gallup poll, the proportion of Americans who said tobacco companies should be held legally responsible for smoking-related deaths rose from 13 percent in 1991 to 30 percent in 1996. At the same time, a steady stream of evidence, including industry documents and testimony from former employees, has confirmed what most people have long assumed: that the tobacco companies did not really believe what they said about the hazards and addictiveness of smoking.

The satirical novelist Christopher Buckley had great fun with the industry's never-say-die skepticism in his 1994 book Thank You For Smoking. But what was once a joke is now increasingly seen as an outrage. People have grown tired of the industry's mendacity, and juries are telling the tobacco companies to cut it out.

In August 1996 a jury in Jacksonville, Florida, told Brown & Williamson to pay $500,000 to Grady Carter, a retired air traffic controller with lung cancer, and $250,000 to his wife. Carter, who started smoking Lucky Strikes in 1947, switched to other brands in 1972 and continued smoking, despite nagging from his family, until his cancer was diagnosed in 1991. "I am responsible," he conceded on the witness stand. But his attorney, Woody Wilner, argued that American Tobacco, which owned the Lucky Strike brand and was acquired by Brown & Williamson in 1995, was also responsible, because it had deliberately hooked Carter on a deadly product. After a couple weeks of testimony and two days of deliberations, the jury awarded half the amount suggested by Wilner.

That jury saw several hundred pages of excerpts from leaked Brown & Williamson documents, including one executive's description of nicotine as "an addictive drug," which highlighted the industry's dishonesty. "That really bothered me," said one juror, "given that to this day, they argue the addiction point." Another commented, "We wanted to send a message to the tobacco companies: We ain't going to take it no more."

The Carter verdict was later overturned, as was another Florida damage award that followed. But more recently, in cases involving smokers who had developed lung cancer, juries in California and Oregon ordered Philip Morris to pay huge punitive damages–$50 million in one case, $80 million in the other. Those awards were sharply reduced on appeal, and they may ultimately be overturned completely. But the size of the judgments reflects the anger of jurors who are tired of being lied to, even if they never really believed the lies.

The irony is that the tobacco companies were trying to protect themselves against liability by refusing to concede anything that might be useful to the enemy, including such basic facts as the connection between smoking and lung cancer or the habit-forming potential of tobacco. But their lack of candor has been portrayed as a conspiracy to deceive consumers, grounds for just the sort of big damage awards the industry was anxious to avoid.

The danger posed by cases involving individual smokers–none of which the industry has ever agreed to settle–is modest compared to the threat of government-backed lawsuits. To get rid of that threat, the leading tobacco companies last year agreed to shell out $246 billion over 25 years and abide by various restrictions on advertising and promotion. This was an astonishing capitulation, given the novelty and weakness of the claims they were facing.

The idea of suing tobacco companies to recover the money spent by taxpayers on smoking-related medical expenses was pioneered by Mississippi Attorney General Mike Moore in 1994. "This lawsuit is premised on a simple notion," he said. "You caused the health crisis; you pay for it. The free ride is over. It's time these billionaire tobacco companies start paying what they rightfully owe to Mississippi taxpayers." This strategy sought to overcome the assumption-of-risk argument that had long been the industry's strongest defense. The governor of Florida, the second state to file a tobacco lawsuit, put it this way: "The state does not buy that package of tobacco, so we don't read the warning on the side. We just pay for the carnage."

Then again, state governments had long been aware of tobacco's dangers, and they had not only permitted its sale but had profited from it through taxes. Indeed, state governments make more from the cigarette business than the tobacco companies do, and this money is collected partly because smokers are said to impose costs on the rest of us. The states that filed suit against the tobacco companies seemed to be charging twice for the same expenses. And even without considering cigarette tax revenue, it's unlikely that smoking represents a net drain on the public treasury: Because smokers tend to die earlier than nonsmokers, the costs of treating tobacco-related illness are probably outweighed by savings on Social Security, nursing home stays, and medical care in old age.

The most basic problem with the state lawsuits was the idea that a manufacturer could be held liable simply because the use of its product was associated with disease or injury, whether or not the product was defective. If this argument was accepted, behavior that was considered perfectly legal at the time that it occurred–selling cigarettes, for example–could be declared a tort retroactively. And there was no end to the list of potential defendants. Under the sort of reasoning that Mike Moore thought should apply to the tobacco companies, a state might sue manufacturers of alcoholic beverages, which can cause cirrhosis of the liver; dairy products, which contribute to heart disease; candy, which fosters tooth decay and obesity; and such instruments of injury as cars, bicycles, skis, skateboards, and bathtubs.

Recognizing that there was no precedent for this sort of liability, states were at first reluctant to follow the lead of Mississippi and Florida. But it turned out that there really was no downside, because plaintiffs' lawyers were happy to handle the cases on a contingency fee basis. If they lost, they would bear the expense. If they won, they and the states would enjoy a big windfall. Ultimately, as more and more states filed Medicaid lawsuits against the tobacco companies, the threat of potentially ruinous liability, coupled with the ongoing expense of defending the cases, persuaded the industry to settle. Even if the cigarette makers had won virtually every case, a few losses could have been enough to bankrupt them, given the possibility of punitive damages.

Since none of the state cases resulted in a verdict, they did not establish a legal precedent that could be used to target other industries. But they did establish a political precedent for an alliance between trial lawyers eager to make money, activists eager to impose their favorite policy prescriptions, and government officials eager to do both. This is the alliance that we see replicated in the lawsuits that more than two dozen cities and counties have filed against gun makers since last fall. Indeed, some of the same attorneys who earned the largest legal fees in history by going after the tobacco companies are now involved in the gun litigation.

Private lawsuits against gun makers, like those against cigarette makers, generally have been unsuccessful. Until recently, the only exceptions were cases involving defective weapons. But last February, in a case that was closely watched because its underlying theory was similar to the one that Chicago and other cities are using in their suits, a federal jury in Brooklyn found several firearm manufacturers guilty of so-called "negligent distribution."

The plaintiffs, relatives of people who were killed or injured with handguns, charged that manufacturers "oversupply" firearms to states with few gun restrictions, knowing that some of the weapons will end up on the streets of New York. This alleged pattern of negligence was said to justify collective industry responsibility for gun violence, based on market share. In other words, the plaintiffs wanted to win damages without showing that the defendants' products had anything to do with the shootings that were the pretext for the lawsuit. "We can't know and it doesn't matter whose gun it was," said Denise Dunleavy, one of the plaintiffs' attorneys, in her opening statement. "A gun is a gun, and it was the responsibility of the manufacturers to keep their products out of our hometown."

Whether the jury actually bought this audacious theory is open to question. The jurors deliberated for six days, repeatedly sending notes to U.S. District Judge Jack Weinstein saying they were deadlocked. Again and again, the judge insisted that they continue to argue with each other. In a verdict described as "strange" and "confusing," the jurors ultimately found that 15 of the 25 manufacturers had been negligent but that only nine of them had contributed to any of the shootings. They decided that the defendants' "negligent distribution" had been a "proximate cause" in three of the shootings but not the other four. And they awarded damages–$560,000, not much by the standards of modern litigation–for only one of the shootings. The bizarre mix of findings suggests that the jurors tried to split the difference between irreconcilable positions.

"Some liked guns and some didn't," one juror later told The New York Times. "That's why it took so long." A juror's personal feelings about firearms, of course, have no bearing on whether the law permits the relative of a shooting victim to recover damages from a gun maker. It seems that the jurors were debating something else.

"It was never about money," said Diane Zaretsky, one of the plaintiffs. On the face of it, this is an odd thing to say. Like any tort action, the lawsuit was ostensibly aimed at winning financial compensation for people who were wrongfully injured. Such an exercise is very much about money.

But I think Zaretsky was being candid. As far as its supporters were concerned, the case was really about gun control. It was aimed at achieving policy changes, such as the elimination of part-time dealers and multiple purchases, that anti-gun activists have failed to win through the democratic process. In effect, the jurors were asked to substitute their judgment about how the firearms trade should be regulated for that of legislators.

Supporters of such litigation hope the threat of catastrophic damages will force gun makers to accept restrictions, either as a defense strategy or as part of a settlement similar to the tobacco industry's deal with the states. "This is fundamentally going to change the way gun manufacturers do business," Josh Horwitz, executive director of the Educational Fund to End Handgun Violence, said after the verdict. "This is what we've been waiting for…a way to say to manufacturers that you do have a responsibility after the gun leaves your plant."

To amplify this message, gun control activists are backing lawsuits by local governments that seek compensation for the costs of gun violence. There are two basic approaches, exemplified by New Orleans and Chicago, the first two cities to file such suits. New Orleans argues that handguns are "unreasonably dangerous" because they are not equipped with devices that prevent unauthorized people from using them. Industry representatives complain that they stand accused of failing to use devices that have not been invented yet, and they are not the only ones who consider the argument flaky. Kristen Rand, policy director of the anti-gun Violence Policy Center, told The Baltimore Sun that "smart gun" technology "is so speculative that it doesn't make any sense to say the gun industry should have installed it." A Chicago lawyer who has sued gun makers took a similar view. "Product-liability claims don't work," he told the Sun, "because guns work as intended: They shoot things."

By contrast, Chicago argues that, by supplying suburban gun dealers with more firearms than are needed for legitimate purposes, manufacturers are creating a "public nuisance." The suit says the companies "saturate the market [with firearms], knowing that persons will illegally bring them into" Chicago, where handguns are banned. As Mayor Richard Daley put it, "They knowingly market and distribute their deadly weapons to criminals in Chicago and refuse to impose the most basic controls." That sounds damning, until you realize that the same theory could be applied to many other industries. Surely companies that make knives, baseball bats, and tire irons realize that some of their customers will use these products for nefarious purposes. Similarly, car makers knowingly supply the means by which bank robbers make their escapes and drunk drivers kill innocent pedestrians.

But as with the tobacco lawsuits, the soundness of the theory may not matter. Supporters of the litigation hope that, like the tobacco companies, gun makers will be forced to settle once the number of lawsuits, and the potential liability, rise to an intolerable level. Since the gun makers are much less financially secure than the cigarette makers, this is not an unreasonable expectation.

The agreement that the tobacco companies struck with the state attorneys general gives us some idea of what the cities can hope to accomplish through a settlement. First of all, the tobacco agreement imposed what amounts to a hefty tax hike on smokers. Cigarette prices have already risen substantially to cover the cost of payments to the states and are expected to rise further. State legislators, who plan to spend the tobacco windfall on a grab-bag of their favorite programs rather than returning it to the taxpayers on whose behalf the suits were allegedly filed, clearly view the money as revenue rather than compensation. The settlement spared them the trouble of formally raising taxes, which might have exposed them to criticism. This way, it can all be blamed on the evil tobacco companies.

Under consent decrees they signed in each state, the cigarette makers also agreed to give up various promotional tools that had long been targets of the anti-smoking movement, including billboards, cartoon characters, product placement in movies, and promotional items imprinted with brand logos. They agreed to dismantle their main trade organization, the Tobacco Institute, and to limit future lobbying efforts. They even agreed to pay half a billion dollars a year for an ad campaign aimed at discouraging consumption of their products. Not only had Congress declined to impose these requirements by statute, but had it done so they would have been overturned on First Amendment grounds.

Just as the tobacco deal raised cigarette prices, a settlement of the gun litigation could make firearms substantially more expensive, depending upon how big the payout is. Alternatively, the cost of defending the cases and paying damages could drive up prices. If companies are pushed into bankruptcy by the litigation, that would also tend to reduce supply and make guns harder to obtain–a welcome consequence for the activists backing the suits. Assuming a settlement is reached, the cities could insist that manufacturers stop making certain kinds of guns, deal with fewer distributors, put limits on the number of guns that can be sold to one customer, stop advertising guns for civilian self-defense, or make other changes on the gun control wish list. The cities would not need a single legislator's approval, even though their demands would affect the entire country, and they would not have to worry about the Second Amendment.

Anti-smoking and anti-gun activists have turned to the courts precisely because they have not been able to get what they want by appealing to our elected representatives. Ahron Leichtman, president of Citizens for a Tobacco-Free Society, argues that "massive damage awards and looming liability can drive up the price if cigarettes and drive down consumption, addiction and disease. Where proper regulation has been thwarted by the tobacco lobby, the courts can promote health and serve the public interest." Other commentators call suing the tobacco companies "a cancer control strategy" and an example of "litigating for the public's health." Similarly, John Coale and Wendell Gauthier, two of the leading attorneys involved in the gun litigation as well as the tobacco lawsuits, have suggested that trial lawyers serve as a fourth branch of government, making up for the legislature's lack of vision and courage.

The implication is that a political system that fails to enact obviously sensible policy proposals must be hopelessly corrupt. But at least that system operates in the open, with legislators subject to constitutional limits and accountable to their constituents. Government by litigation, in which negotiators set policy behind closed doors, has no such constraints.