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Action on Smoking and Health
A National Legal-Action Antismoking Organization Entirely Supported by Tax-Deductible Contributions
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A. General History of Cigarette Litigation
Dating back to the 1950s, smokers have sought recovery from the tobacco industry for smoking-related diseases. Cases seeking to hold the tobacco industry liable for smoking-related illnesses have been classified into two "waves." The first wave of cases were brought under four main theories: breach of implied warranty; breach of express warranty; deceit; and negligence.
The first theory under which recovery was sought was breach of implied warranty. A warranty is implied in a sale of goods that the goods will be merchantable and fit for the ordinary purpose for which they are used. This allows a buyer to rely on the skill and judgment of the manufacturer or seller that the goods being furnished are fit for the buyer's intended use. Otherwise, a buyer would be forced to discover the dangers of the product.
One example of an implied warranty action against a tobacco company is the 1964 case of Ross v. Philip Morris & Co. The plaintiff in Ross alleged he developed throat cancer as a result of smoking cigarettes manufactured by the defendant. The plaintiff maintained that the defendant breached an implied warranty that the cigarettes it provided were not harmful. The defendant manufacturer asserted that an implied warranty did not cover substances in cigarettes that could not be detected with the exercise of reasonable skill and foresight. Therefore, the manufacturer argued it should be held liable only for breach of implied warranty for injuries it knew or should have known existed in its cigarette.
The Eighth Circuit Court of Appeals agreed with the defendant and found that an implied warranty does not cover harmful substances within a product that could not be detected through reasonable skill or knowledge. Because there was no disagreement between the plaintiff and the defendant that no human skill or foresight could have foreseen the cancer-smoking relationship, the manufacturer was not held liable for breach of implied warranty.
The second theory under which recovery was sought against cigarette manufacturers during the first wave was breach of express warranty. An express warranty is a promise issued with a sale of goods in which the seller or manufacturer expressly assures the quality, description, or performance of its product.
A breach of express warranty theory was brought in cigarette litigation in 1965. Based on statements made by a tobacco company in magazine and newspaper advertisements, a breach of express warranty was claimed in Pritchard v. Liggett & Myers Tobacco Co. The advertisements identified in Pritchard extolled the healthful benefits of cigarettes based on research and opinions of medical specialists and physicians. The advertisements included statements such as "A Good Cigarette Can Cause No Ills," "Nose, Throat And Accessory Organs Not Adversely Affected By Smoking Chesterfields," "Chesterfields Are Best For You," "Chesterfields Are As Pure As The Water You Drink And The Food You Eat," and "Play Safe Smoke Chesterfields." The plaintiff alleged these statements expressly warranted that the defendant's cigarettes were not harmful to a smoker's health.
The trial court instructed the jury that for the defendant to be liable, the plaintiff must show reliance on the express warranty in purchasing the product. The Third Circuit Court of Appeals, however, held that the plaintiff did not need to show reliance on the express warranty. The plaintiff did, however, have to demonstrate that the advertisements tended to induce the purchase of goods. However, because this was nearly impossible to prove, the plaintiff never tried the case on remand.
The third theory for which recovery was sought was deceit. Deceit is the fraudulent misrepresentation of fact, opinion, or law for the purpose of inducing another to act. Liability for deceit arises when a fraudulent misrepresentation is made and the party perpetrating the fraud (a) knows or believes a matter is misrepresented, (b) does not possess confidence in the accuracy of the representation, or (c) knows the representation is without basis. A party who deceives another is liable for damages if the other party detrimentally relies on the first party's representation.
An action for deceit was brought in Cooper v. R.J. Reynolds Tobacco Co. The plaintiff in this action, Eva Cooper, brought suit on behalf of her late husband, Joseph Cooper. Cooper allegedly died from lung cancer caused by smoking a brand of the defendant's cigarettes. The plaintiff alleged that the defendant, through advertisements, stated its Camel brand cigarettes were unlikely to cause any harm or disease. Further, the plaintiff alleged that the defendant intended for smokers, such as the plaintiff's husband, to rely on and purchase that brand of cigarettes based upon that representation. Therefore, the plaintiff alleged her husband was deceived by the defendant.
The plaintiff, however, was requested through interrogatories to state the name and date of the newspaper, radio, and television advertisements upon which the plaintiff's husband relied. Because she was unable to answer such interrogatories with specificity, she was unable to show reliance by her late husband on the advertisements. Therefore, the plaintiff's claim based on deceit was dismissed.
The final theory under which recovery was sought in the first wave of cases was negligence. Negligence is the failure to use the care that a reasonable person would use in similar circumstances. To maintain a cause of action for negligence, the plaintiff must demonstrate that the defendant owed a duty to the plaintiff, that the defendant breached that duty, that the defendant's breach caused harm, and that the harm was a direct result of the defendant's conduct. Negligence claims against a tobacco company assert the company owed a duty to warn its customers of the detrimental health effects of smoking their cigarettes, and they breached this duty by failing to inform.
One case, which was brought in 1963 under a negligence theory, is Lartigue v. R.J. Reynolds Tobacco Co. Frank Lartigue had smoked cigarettes since the age of nine. He developed cancer of the larynx allegedly due to the defendant manufacturer's cigarettes. Less than three months after successful surgery on his larynx, Frank developed lung cancer. This was also allegedly caused by smoking the defendant's cigarettes. Frank's lung cancer ultimately caused his death nine months later at the age of 65. His wife brought suit against R.J. Reynolds, the manufacturer of the cigarettes the decedent smoked, alleging both a breach of implied warranty and negligence. The plaintiff claimed the defendant was negligent in not warning the public that use of its cigarette product would cause cancer. At trial, the jury found for the defendant. The plaintiff appealed this decision, challenging the court's instruction to the jury.
The trial court instructed the jury that for the defendant to be found negligent, the defendant must have had some knowledge as to the inherent danger or defective condition of its cigarette. The plaintiff had the burden of proving that the manufacturer knew or should have known of the defective condition before the cancer developed. The court instructed the jury that medical knowledge obtained after the development of the plaintiff's cancer was not to be used as a measure to determine if the manufacturer should have known of product defects. Because the jury found the plaintiff did not prove that the manufacturer had knowledge of the defect in its product at the time the plaintiff developed cancer, an action for negligence could not be maintained.
Although a range of theories for recovery was brought against tobacco companies, this first wave of cases was unsuccessful. Three major obstacles prevented recovery by plaintiffs. The biggest obstacle to individual plaintiffs was the defense of assumption of risk. Assumption of risk is an affirmative defense raised by a defendant when a plaintiff has voluntarily exposed himself or herself to a "known and appreciated danger." If a plaintiff knows, appreciates, and understands the risk of harm, yet voluntarily assumes the risk, the plaintiff is legally prevented from recovering for injuries caused by that harm. For example, a fan at a baseball game is presumed to know and appreciate the risk involved with attendance, such as stray fly balls. By attending the sporting event, in light of such knowledge, it is implied the fan is accepting the ordinary risks of the game, and cannot recover if injured.
The assumption of risk defense has been the tobacco industry's leading defense because a warning label is required on each cigarette package and advertisement. Therefore, the industry has been successful in persuading juries that smokers are informed as to any potential risks. By voluntarily smoking, they accepted the risks involved and were not entitled to recovery. Consequently, the argument goes, any subsequent health problems are not the fault of the cigarette manufacturer, but, instead, that of the smoker. The second reason this first wave of cases failed was that the prolonged length of time involved in these cases forced individual plaintiffs out of litigation. For example, the initial complaint in Green v. American Tobacco Co. was filed in 1957. However, final disposition of the case came 13 years later in 1970, when the United States Supreme Court denied review. The massive amount of time spent in litigation placed a heavy financial burden on individual plaintiffs. The tobacco companies, on the other hand, had a vast amount of resources available during litigation. By dragging out litigation and conducting costly discovery, the tobacco companies were able to force plaintiffs to dismiss their suits. Additional costs were incurred by the plaintiffs due to their inability to access needed information. Tobacco defendants were able to obtain protective orders to prevent the release of information to other potential plaintiffs. Therefore, in each case filed against a tobacco company, new discovery had to be undertaken, consuming much time and money.
Finally, the lack of medical knowledge linking cigarette smoking to disease in the 1950s and 1960s was problematic to plaintiffs. It was not until 1964 that the United States Surgeon General declared that cigarettes were harmful to human health. The implied warranty and negligence cases demonstrate how the scarcity of medical knowledge concerning the harmful effects of cigarettes provided an escape from liability for cigarette manufacturers. In addition, the potentially addictive nature of cigarettes was not yet fully recognized. This lack of knowledge created causation problems in finding a definitive link between cigarette smoking and the injuries it caused.
The second wave of cigarette litigation began in the 1980s. These cases were in part the result of medical studies finding a direct link between cigarettes and disease and a change in society's perception of smoking cigarettes. This wave of cases was brought primarily under two new theories--strict liability and failure to warn.
Strict liability is an outgrowth of the law of implied warranty. Strict product liability places an absolute burden on a manufacturer for any injuries sustained by the ultimate user of a defective product. This liability applies regardless of whether the manufacturer has exercised all possible care in the preparation and sale of its product. Holding manufacturers to a higher standard forces them to produce safer products, the costs of which will be reflected in the price of the product. In the alternative, manufacturers re unable to bear the costs of products that are too dangerous and those products are forced from the market. Either way, the consumer is protected and the goals of strict liability are met.
To be held strictly liable, the product must be unreasonably dangerous. Two tests have been used to determine if a product is unreasonably dangerous. The first test is a consumer expectations test. If the product is more dangerous than the average consumer expects, then it is unreasonably dangerous and defective, and strict liability applies.
The second test involves a risk-benefit analysis. A determination is made as to whether the product's utility outweighs its risks. If the risk is greater than the utility, then the product is deemed unreasonably dangerous. Conversely, if the product's benefits or utility outweigh its risks, then it is protected from strict liability. For example, a prescription drug may cause side effects to the consumer. However, its distribution and use are justified because these side effects are significantly outweighed by the benefits the consumer receives. Therefore, manufacturers of prescription drugs are not strictly liable for side effects, provided the manufacturer warns the consumer of the potential effects.
In 1990, the Louisiana Appellate Court in Gilboy v. American Tobacco Co. examined whether strict liability should be applied to tobacco litigation. The plaintiff in Gilboy alleged he developed brain and lung cancer from smoking cigarettes manufactured by the defendant, American Tobacco Company. In rendering its decision, the appellate court affirmatively stated cigarettes were not unreasonably dangerous per se. The court refused to find a per se unreasonableness, holding that cigarette smoking is a voluntary act and the presence of warning labels on cigarette packages alerts the consumer to any potential dangers. The court reasoned that to allow a recovery based on strict liability would open the floodgates of litigation, not limited to cigarettes. The court used alcohol as an example. Under the plaintiff's theory, drinkers who suffer from alcohol-related diseases would be able to seek compensation from liquor manufacturers under strict liability. This results in the abandonment of individual responsibility and products adequately labeled with warnings would provide no protection to manufacturers.
However, an action for strict liability against tobacco manufacturers was allowed in 1993 in Wilks v. American Tobacco Co. The Mississippi Circuit Court in Wilks was asked to decide the standard of tort liability in cigarette cases. Based on the scientific research concerning the health risks of cigarettes, the court stated that cigarettes are defective because when used as intended, they cause disease and illness. Consequently, the court declared "cigarettes are, as a matter of law, defective and unreasonably dangerous for human consumption." Therefore, an action based on strict liability was allowed to proceed. However, at trial, the jury did not find the smoker's death was caused by his use of the defendant's cigarettes, so the plaintiff was denied recovery.
The second theory raised in the second wave was failure to warn. Failure to warn cases are based on the proposition that in order to make an informed decision whether or not to use a product, the consumer should be warned of the risks associated with it. The premise of this theory is that the manufacturer is in the best position with its knowledge, skill, and expertise to know of the potential harmful effects of its product.
The plaintiff in Palmer v. Liggett Group, Inc. alleged a failure to warn theory against a cigarette manufacturer in 1987. The plaintiff in Palmer challenged the adequacy of the warning label on the defendant's cigarette packages and advertisements. Reminiscent of older tobacco actions, the plaintiffs asserted that the defendant negligently provided inadequate warnings regarding the dangers of cigarette smoking. This negligence proximately caused Palmer's death. The defendant tobacco company asserted that the plaintiff's action was preempted by the Federal Cigarette Labeling and Advertising Act. The defendant argued that when Congress has acted on an issue by enacting a law, the states must yield to that law and cannot contravene it by enacting their own legislation. The states, therefore, are preempted from acting on the warning issue.
In determining whether the Act preempted Palmer's claims, the First Circuit Court of Appeals looked to how Congress constructed the Federal Cigarette Labeling and Advertising Act and how the Act was to be interpreted. The court noted Congress' express purpose in enacting the Federal Cigarette Labeling and Advertising Act was to strike a balance between a concern for national health and protection of trade and commerce in the tobacco industry. The court looked to this congressional intent, and found the Act preempted the plaintiff's suit.
While the second wave of cigarette litigation began in a period of enlightened medical research linking cigarettes with health-related disease, these cases also failed. Assumption of risk was still an effective defense for the tobacco industry. In addition, the tobacco companies were successful in setting up a federal preemption defense, such as that in Palmer v. Liggett Group, Inc., using the Federal Cigarette Labeling and Advertising Act.
Enacted in 1965, the Federal Cigarette Labeling Act mandated that a specific warning be placed on each individual package of cigarettes and cigarette advertisements. These warnings include statements such as "SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy," and "SURGEON GENERAL'S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health." The Act further provides that as long as cigarette packages are labeled according to its provisions, no other warning label is required.
Tobacco companies are required to comply with the Act. In turn, the tobacco companies have used the Act to prevent any further liability based on failure to warn. By complying with the Federal Cigarette Labeling and Advertising Act, the cigarette companies assert they are not compelled to disclose any other information as to potential health risks on their cigarette packaging or in their advertisements. Actions based on a failure to warn were preempted, allowing cigarette manufacturers to elude liability.
Recently, however, the United States Supreme Court, in Cipollone v. Liggett Group, Inc., left open the possibility of other failure to warn actions. While the Supreme Court applied preemption to the plaintiff's claim for failure to warn of the potential harmful effects of cigarettes, the Court expressly held the Act did not preclude claims based on a duty to disclose. Therefore, actions based on failure to warn by not testing, researching, or divulging test results and research conducted on tobacco products could be maintained. This included actions based on a theory of conspiracy among tobacco manufacturers to misrepresent or conceal the health hazards of smoking. The case was remanded for trial in accordance with the Supreme Court's opinion. However, although the plaintiff in Cipollone was originally awarded a $400,000 jury verdict for cancer allegedly caused by the defendant's cigarettes, the claim was dropped on remand by the plaintiff due to the cost of future litigation.
Cipollone may have begun the third wave of tobacco litigation. The 1990s have brought new claims against the tobacco industry, which have been accepted by a minority of courts. For instance, in 1994, a federal judge in New Orleans certified a class action lawsuit against the tobacco industry. Focusing on the addictive nature of cigarettes and alleged manipulation of nicotine levels, the class action is open to "l nicotine-dependent persons in the U.S." who bought their cigarettes from a major supplier. The class eventually could encompass as many as 50 million smokers, including heirs of deceased smokers.
Reviewed: August 17, 2004
This information is presented as a public service by:
Action on Smoking and Health (ASH)
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A national nonprofit, scientific and educational organization founded in 1967.
All donations are fully tax deductible.Dedicated to Mr. and Mrs. Warren Wells