1 Casting blame on the tobacco victim: Impact on assumption of the risk and related defenses in The United States tobacco litigation
Richard A. Daynard, JD, Ph.D., Professor of Law, Northeastern University School of Law, Boston, Mass., USA. Mark Gottlieb, JD, Staff Counsel, Tobacco Products Liability Project, Boston, Mass., USA.
Introduction
From the 1950s through the mid 1990s, tobacco companies in the United States had a nearly perfect record of success in defending product liability lawsuits brought against them by individuals who claimed harm caused by tobacco products. One of the cornerstones of the tobacco industry"s defense strategy has been to aggressively blame the plaintiff, whether living or deceased, for his or her own injuries.
The legal defenses based on victim blaming have not been accepted by most courts as a bar to tobacco litigation. They simply permit the defendants to argue to the jury that the plaintiff does not deserve to recover any damages. But these arguments are becoming less persuasive with jurors in the United States in the face of evidence of the defendants" misconduct.
The tobacco industry"s strategy is somewhat internally inconsistent internally because it consists of maintaining two positions in tension with each other: 1) we deny that our products caused the injury in question; and 2) all smokers, including the plaintiff, are aware of the risks of smoking but smoke anyway because they enjoy it. If the first prong of the strategy is weakened by strong medical evidence, then the second prong may still offer the defendant tobacco company an affirmative defense to avoid liability: the plaintiff who chose to smoke and ignore the risks that the industry denies is responsible for any alleged consequences of smoking, not the manufacturer of the product.
The appeal of victim-blaming is that it appears, at first blush, to be a common sense approach. Jurors are apt to agree that only a complete imbecile does not know that smoking is harmful. After all, there is a warning on every pack of cigarettes sold in the U.S. and most other countries, the U.S. Surgeon General"s Reports, beginning in 1964, spelled out many specific medical problems related to tobacco use, and news articles and educational efforts all supported and reinforced the notion that cigarette smoking can cause lung cancer.
There is a difference between the general risks of smoking as understood by plaintiffs and the numerous specific risks known only by the tobacco companies and suppressed from the public"s knowledge. The most important component in a cigarette is the addictive drug, nicotine. This drug and its varying dosages and chemical facilitators in specific brands and styles of cigarettes is very carefully and deliberately controlled by cigarette companies.
Critically, the presence and control of nicotine reduces the smoker"s freedom to choose whether or not to continue smoking. Most smokers begin to smoke regularly as teenagers 1 before they are capable of appreciating the risks and before many societies recognize them as fully capable of taking legally binding courses of actions such as entering into contracts. Finally, tobacco companies" denials of the risks posed by their products serve to confuse consumers, particularly consumers whose decision-making capacity may have already been compromised by the physiological dependence on nicotine.
These factors suggest that plaintiffs are not solely to blame for their misfortunes and that tobacco companies are also responsible for the harm caused by their products.
This opinon will examine the application and relevance of the various types of tobacco industry victim-blaming defenses and seek to suggest how they fit into the overall picture of current U.S. tobacco litigation.
Overview of Assumption of the Risk and its Implications for Tobacco Litigation
The assumption of risk defense has «hovered like a storm cloud over every smoker’s claim against the tobacco companies.» 2 After the wave of lawsuits tried in the 1980s resulted in victories for the defense and tremendous expense for the plaintiffs, many observers believed that the industry"s victim-blaming defense strategies had eliminated the threat of tobacco litigation. By the end of the 1990s, the effectiveness of this defense strategy is in serious doubt and tobacco litigation is the biggest threat facing the tobacco industry. After a plaintiff"s verdict in March of 1999, the Washington Post reported that, «jurors appear to be increasingly willing to reject the industry"s long-used defense that individuals bear responsibility for their choice to smoke.» 3 Yet the strategy is still the centerpiece of the tobacco industry"s approach to tobacco litigation brought by its customers.
Classic assumption of risk doctrine completely precluded recovery when a plaintiff subjectively appreciated a risk and voluntarily encountered it. 4 More recently, assumption of risk has merged with comparative fault doctrine in most jurisdictions (see the next section of this opinion). The basic rationale behind this defense is that it would be an injustice for plaintiffs to recover for injuries caused by their own foolhardy behaviors. Yet, the distinction between understanding general and specific risks, decision-making in the context of addiction to nicotine, initiation of smoking in childhood, and denials of risk and inconsistent statements by tobacco companies, has eroded the bases for successful use of these defenses.
Assumption of risk can occur where the defendant owes a duty of care to the plaintiff 5 and the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of duty. 6
The essential elements of the assumption of risk doctrine are the plaintiff’s subjective understanding of the risk, voluntary choiceto encounter the risk, and willingness to accept that risk. 7 Under traditional assumption of the risk, the presence of these three elements would provide a complete bar to recovery by a plaintiff.
With the rise of comparative fault principles (also known as comparative negligence, see next section of this report), many courts have become reluctant to require that a plaintiff’s claim be eliminated altogether by assumption of risk. 8 A complete bar to recovery may still be appropriate when the plaintiff expressly assumes a risk, or when the defendant’s duty of care is absent or limited, such as a consensual sporting event or amusement park ride. 9
In the context of tobacco litigation, assumption of the risk arguments have been used most effectively against the traditional products liability theories of negligence and strict liability. Until the mid-1990s, very few other legal theories had been tested against tobacco defendants.
The affirmative defense of assumption of the risk requires the defendant to provide evidence to demonstrate that the plaintiff subjectively knew of the risk and deliberately proceeded to act in spite of it. 10 A defendant must show that the «nature and extent» of the risk were «fully appreciated» and that the plaintiff voluntarily proceeded to face that risk. 11 «It is well established . . . that the assumption of the risk defense requires knowledge of the specific defect eventually causing injury and the voluntary use of the product with knowledge of the danger caused by the specific defect.» 12 Accordingly, in order to preclude a plaintiff from recovering because he assumed the risk, the «defendant must establish that plaintiff had knowledge of and appreciation of the precise risk involved. 13
In a recent case that resulted in a jury verdict for the plaintiff, 14Henley v. Philip Morris, Inc., et al ., 15 the negligence claim was alleged in such a way as to anticipate and deny the essential elements of assumption of the risk or contributory fault defenses:
At times material, the ordinary consumer, including the plaintiff, did not in the exercise of ordinary diligence know of the likelihood of, the severity of, or the extent of the risks from CIGARETTE DEFENDANTS" cigarettes, which are outlined above. [emphasis added]
At times material to this action, CIGARETTE DEFENDANTS actually knew, or in the discharge of ordinary care should have known of the following:
. . .
that the harms [caused by smoking] . . . would more likely be experienced if users did not restrict their intake of defendants" cigarettes, or if they began to use the products at an early age.
that use of the products as intended was likely to lead to addiction, habituation, and/or dependence, particularly if begun at an early age;
that termination or limitation of use would be exceedingly difficult if consumption was initiated and that this difficulty would increase as cumulative consumption increased;
that developing knowledge before and after 1970 demonstrated that previous users are at great risk of harm (as listed above) and should seek medical monitoring;
that CIGARETTE DEFENDANTS could establish a reasonably safe dose for foreseeable users;
that there were feasible improvements in design, composition, or manufacture of cigarettes such as to materially decrease the foreseeable risk to user;
that switching to the so-called «light» cigarette would not be less hazardous because the individual would compensate for the decreased nicotine levels by smoking more;
that the FTC method of measuring «tar & nicotine» levels underestimated the levels of nicotine actually delivered; and
that adding ammonia, or otherwise altering the PH of the tobacco, enhanced the delivery of nicotine, thereby increasing addiction and/or dependence. 16
A key element of this claim is that the plaintiff could not know of the likelihood, severity or extent of the risk while the cigarette company defendant, Philip Morris, must have understood these risks. If the nature and extent of the risk is not fully appreciated, then the defense is more apt to fail. While defendants can produce historians to testify that most people understood that smoking was not good for human health at the relevant time and may even produce testimony that indicates that the plaintiff shared in this general understanding of risk, that should be insufficient to evade liability via an assumption of the risk defense.
In the Henley case, the trial judge rejected a post-verdict motion asking the court to void the jury"s decision based on assumption of the risk. 17
But even well before the current «Third-Wave» of tobacco litigation in the U.S. that has seen a handful of juries deciding in favor of smoking victims, the idea that classic assumption of the risk should essentially disqualify plaintiffs was hardly universal. Except where legislation expressly prohibited tobacco litigation, most states left the issue of the plaintiff"s responsibility for his injuries to the jury.
In 1991, the Louisiana Supreme Court in Gilboy v. American Tobacco Co., et al, 18 overturned two lower court decisions and ruled that the question of the plaintiff"s knowledge of the dangers of smoking was a disputed issue of material fact and not to be assumed as a matter of law. 19 The Court in Gilboy relied on the 1986 Note from the Harvard Law Review, « 20 Plaintiffs" Conduct as a Defense to Claims Against Cigarette Manufacturers,» in determining that victim-blaming involves complicated factual issues for juries to decide and should not determine the fate of the litigation as a matter of law. 21 The Note, included as an attachment to this report, explains many of the challenges facing defendants who seek to invoke victim-blaming defenses and is still quite relevant thirteen years after its publication in the Harvard Law Review.
Why Assumption of the Risk and its Related Defenses have Become Less Effective
With the exception of only a few states that have essentially eliminated tobacco litigation by individual smokers (e.g., Texas and Mississippi), assumption of the risk principles can, at best, provide defendant tobacco companies with the opportunity to persuade jurors that plaintiffs" behaviors should preclude or minimize any recovery resulting from injuries caused by the defendants" products. That task is becoming increasingly difficult for defendants.
Beginning in 1994, plaintiffs’ lawyers began to obtain internal tobacco industry documents indicating that the tobacco companies were well aware that nicotine was addictive. At the same time, these companies were representing to consumers and Congress that nicotine was not addictive. 22
Evidence has also surfaced that tobacco companies have controlled nicotine levels in cigarettes in ways that may serve to promote their consumers’ addiction. 23 Such evidence of misconduct can be used by plaintiffs to show they did not voluntarily assume the risk of becoming addicted to cigarettes and to shift the blameworthiness to the tobacco companies.
Voluntarily Encountering of Risk
The addiction issue complicates matters for defendants raising assumption of risk defenses because of its requirement that plaintiffs voluntarily encountered a known danger. If nicotine addiction from smoking means that smokers have impaired choices regarding smoking cessation, smokers could be found not to have voluntarily assumed the risk, particularly if they did not appreciate the addictiveness when they began smoking. 24 The defendants may, nonetheless, be entitled to some reduction in liability under a «comparative negligence» theory (see below) because some addicted smokers may be able to quit, albeit with great effort and discomfort.
The tobacco industry actually argues that their products could not be addictive because, as former R.J. Reynolds Tobacco Company CEO James W. Johnson rhetorically asked, «if cigarettes were addictive, could almost 43 million Americans have quit smoking?» 25 The rhetoric ignores the fact that an addiction reduces the freedom to quit but does not completely eliminate it. Addicts to narcotics quit every day but nobody argues that, for example, heroin is not addictive.
The use concepts such as «free choice» and «personal responsibility» is inherently flawed in the context of addiction to nicotine in cigarettes. 26 The free choice argument may not apply to a plaintiff who started smoking and became addicted to the nicotine in cigarettes when during teenage years (especially before any warning labels were placed on cigarette packages). 27 In Gilboy v. American Tobacco Co., et al, the plaintiff allegedly became addicted to nicotine at age 12 or 13 and, «his judgment would not have been equal to that of a mature individual.» 28
In a recent decision in Nicolo v. Philip Morris, Inc., the Court speculated that «alleged misrepresentations regarding the addictive nature of nicotine very well might negate the defense of assumption of risk on the theory that the plaintiff, once addicted, no longer ‘voluntarily’ assumed that risk.» 29 Philip Morris itself has acknowledged the harm to the «free choice» argument in a 1980 internal Philip Morris document which stated the company counsel had been concerned «that the entire matter of addiction is the most potent weapon a prosecuting attorney can have in a lung cancer/cigarette case. We can’t defend continued smoking as a ‘free choice’ if the person was addicted.» 30
An analysis of the impact of nicotine addiction on the voluntariness requirement of assumption of the risk must address the issue that, while smokers are exercising their will in continuing to smoke, that will is diminished by a physiological addiction to nicotine, a chemical carefully controlled by defendants in the manufacturing process. While, strictly speaking, smoking is a voluntary act (i.e., no person is pointing a gun to the smoker"s head), it may not be truly voluntary in the way that is contemplated in assumption of the risk defenses.
Youth Targeting
The voluntary requirement for the assumption of the risk argument is further clouded by the fact that a large majority of adult smokers began smoking before reaching legal adulthood. 31 Courts recognize that children do not have the same capacity to make responsible decisions and have difficulty fully understanding risks. 32
It is alleged that the tobacco industry has directed advertising towards children with increased vigor in recent years. 33 Stylish cartoon characters such as «Joe Camel» and idealized role models such as «The Marlboro Man» are aimed, at least in part, at children, who constitute most of the industry’s market for new consumers. Such advertising that targets youth is another factor that undermines the voluntary encounter with the risk required by the defense. 34 In the past, when many current plaintiffs began to smoke, sports heroes and celebrities who would have appealed to the young were featured in cigarette advertisements. Although their approach has changed, defendants" efforts to attract youthful customers have not abated in the past half-century.
The combination of advertising and promotional activity designed to entice minors to smoke before they develop the capacity to understand the risks and the addictive nature of the product may further weaken assumption of the risk and related defenses. 35
Subjective Appreciation of the Risk
The requirement that the plaintiff must subjectively appreciate the risk is vague enough to be open to broad interpretation by courts and juries deciding whether or how assumption of risk defenses should be applied. 36 Courts in products liability cases typically address this ambiguity by requiring the plaintiff’s appreciation of the risk to be fairly precise before applying the assumption of risk defense. 37 The defendant must prove not just that the plaintiff understood the product was generally dangerous, but more specifically that «the plaintiff voluntarily and unreasonably exposed himself to the specific danger causing the injury.» 38
This argument would likely focus on either an assertion that the danger is so obvious that it must be assumed that the plaintiff was aware of it or that warnings adequately informed the plaintiff of the dangers. 39 But even in the case of warnings that state that smoking causes lung cancer or death, it can be argued that without specific information about the acuteness of the risk, such as an understanding that one out of X number of smokers will contract lung cancer, the plaintiff"s knowledge of the risk may lack the required specificity. 40
In Baker v. Liggett Group, Inc., a federal district court suggested that smokers may not appreciate all the relevant risks. 41 While the victim admitted knowledge of some risks in that case, if the specific knowledge of the precise danger involved is not known or understood, assumption of the risk and related defenses may fail.
Evidence of fraud and misrepresentation by tobacco companies could be interpreted by jurors to mean that smokers might not have made a fully informed choice. Jurors could conclude that because smokers were fraudulently told that is it has not been proven that use of tobacco products is dangerous and causes addiction, they did not have the information necessary to fully appreciate the risks associated with smoking. 42 If jurors are convinced that tobacco defendants deliberately minimized risks of which they were fully aware, this might allow smokers to at least recover partial damages, even if they are blameworthy themselves, as well as opening up the possibility of punitive damages in some jurisdictions. Indeed, if the claim is fraud, fraudulent concealment, or conspiracy to commit fraud -- all of which the jury Engle class action found the U.S. cigarette manufacturers to be guilty of 43 -- the court could instruct the jury to consider that when analyzing affirmative plaintiff conduct defenses or could make certain affirmative defenses unavailable in light of affirmative findings on fraud theories.
Evidence supporting such conclusions that contrast markedly with tobacco defendants" public statements is now widely available. Some examples recently compiled by the World Health Organization are listed below: 44
«Nicotine is addictive. We are, then, in the business of selling nicotine, an addictive drug.» (Addison Yeaman from Brown & Williamson, 17 July 1963)
«Happily for the tobacco industry, nicotine is both habituating and unique in its variety of physiological actions.» (Research planning memo by R.J. Reynolds Tobacco Co researcher Claude Teague, 1972)
«Very few consumers are aware of the effects of nicotine, i.e. its addictive nature and that nicotine is a poison.» ( Brown & Williamson memo signed by H.D. Steele, 1978)
«We have to satisfy the "individual" who is either about to give up or has just done so... We are searching explicitly for a socially acceptable addictive product. The essential constituent is most likely to be nicotine or a direct substitute for it.» (Key Areas – Product Innovation Over Next 10 Years for Long Term Development, British American Tobacco Memorandum, August 1979, as reported in The Guardian , 15 February 1998)
«It has been suggested that cigarette smoking is the most addictive drug. Certainly large numbers of people will continue to smoke because they can"t give it up. If they could they would do so. They can no longer be said to make an adult choice.» (British American Tobacco, 1980)
«Nicotine is the addicting agent in cigarettes» (Brown &Williamson memo from A.J. Mellman, 1983)
«Why do people smoke?... to relax; for the taste; to fill the time; something to do with my hands. ... But, for the most part, people continue to smoke because they find it too uncomfortable to quit.» (Philip Morris, internal presentation, 20 March 1984)
The fraud argument may have been a decisive factor in the very different outcomes of two cases from 1996. In Carter v. Brown & Williamson Tobacco Co., the jury was presented with evidence of the company’s fraud in not disclosing the known addictiveness of nicotine. 45 Although the jury struggled with the plaintiff’s voluntary decision to smoke, they returned a verdict for the plaintiff. 46 Whereas in Rogers v. American Tobacco Company, the jury was not presented with the same evidence of misconduct by the tobacco industry. 47 Without such evidence, the jury found the plaintiff had assumed the risk in choosing to smoke and decided the case in favor of the defendant. 48
Further support for the contention that smokers did not have fully informed knowledge of the risk is contained in survey reported by the Journal of the American Medical Association (JAMA). JAMA surveyed over 3,000 adults to assess smokers’ perceptions of their risks of heart disease and cancer. 49 Conclusions found that most smokers do not perceive themselves at increased risk of experiencing heart disease or developing cancer. The results were that only 29 % and 40 % of current smokers believed they have a higher than average risk of myocardial infarcation (heart attack) or cancer, respectively, and only 39 % and 49 % of heavy smokers acknowledged these risks, according to a 1999 survey. 50
The Emergence of Comparative Negligence
Comparative negligence, also called comparative fault, is a system that allows a plaintiff to recover some portion of the damages caused by the defendant"s negligence even if the plaintiff was also partially negligent and responsible for causing the injury. Almost all states now follow this system. If the defendant owes a duty of care and the plaintiff impliedly assumes a risk, courts are increasingly treating the plaintiff’s choice as equivalent to comparative fault. 51
In fact, many jurisdictions have held that assumption of the risk no longer exists as a legal doctrine in such situations; it is subsumed by the doctrine of comparative fault. 52 One difficulty in generalizing about assumption of the risk is that differences in affirmative defenses exist from state to state. While assumption of risk is still a complete defense to a products claim in some states, in others, it is a part of comparative fault analysis. Furthermore, some states utilize «pure» comparative fault. Pure comparative fault allows recovery of 1 % of damages even if the plaintiff is found to have been 99 % at fault. Other states follow a modified comparative fault system where no recovery is permitted unless the defendant is found to be at least 50 % at fault. 53
The fact that the «plaintiff may have been aware of the risk created by the defendant’s conduct should not operate as a total bar to recovery; instead, comparative fault principles should apply and victim’s awareness of danger is among factors to be considered in assessing percentages of fault.» 54 In the context of failure to warn claims, the Court in Gilboy stated that «the adequacy of a manufacturer"s warning is a factor in assessing comparative fault.» 55
In each of the individual smoker trials in the U.S. resulting in verdicts for the plaintiffs, comparative fault principles were applied. In the first case to result in a damage award to a plaintiff, Cipollone et al. v. Liggett Group, Inc., et al 56 ., comparative fault barred recovery by the plaintiff for failure-to-warn claims. The jury found the deceased plaintiff to have been 80 % responsible for her injuries caused by the defendants" failure-to-warn. 57 New Jersey followed a modified comparative fault model and, since the percentage of fault attributed to the victim was greater than 50 %, she was denied recovery. 58 However, the jury did award the victim"s spouse $400,000 for breach of express warranty to which the comparative fault defense did not apply, but the verdict was overturned on appeal. 59
It was eight years before Carter v. Brown & Williamson Tobacco Corp. went to trial and provided another plaintiffs" verdict in an individual smoking trial. 60 In Florida, where the trial took place, a pure comparative fault system is followed. 61 In that case, the plaintiff actually admitted some responsibility for his lung cancer on the witness stand. Grady Carter said: «I am responsible. I bought Lucky Strikes. I smoked them from 1947 to 1972.» 62 This admission came after the defendant waived the defense as is the pattern in trials in states adhering to comparative negligence. It is likely that the reason the defense waives comparative fault defenses is that it hopes the jury will find a way to convert its intuition that the plaintiff was somehow at fault into a complete verdict for the defense.
In Carter , the jury found cigarettes to be defective products and awarded the plaintiffs $750,000. 63 However, an appellate court reversed the verdict 64 based on a statute of limitations appeal and the issue is now before the Florida Supreme Court.
In a similar wrongful death case tried in 1998, Widdick/Maddox v. Brown & Williamson Corp, 65 a Florida jury held Brown & Williamson liable for compensatory and punitive damages totaling just under one million dollars. That verdict was later overturned on appeal in an unusual ruling that the trial occurred in the wrong Florida county. 66 An attorney representing the defendant, John Nyhan, stated, «We thought that they [the jurors] would recognize Mr. Maddox"s responsibility for his illness.» However, his client waived the comparative fault defense just as it had in the Carter case.
On February 9, 1999, a San Francisco jury found Philip Morris Inc. liable for the inoperable lung cancer of plaintiff Patricia Henley. The jury answered «yes» to all fifty-four questions posed to them in the case by California Superior Court Judge John Munter. A $1.5 million compensatory damage award was arrived at by the twelve-member jury after four days of deliberations. On February 10, 1999, that jury awarded Ms. Henley an additional $50 million in punitive damages. Members of the jury were reportedly influenced by the tobacco industry documents introduced at trial. The foreman described the jury as «angry» at the defendant, Philip Morris, Inc. 67
In Henley, like in Carter and Widdick/Maddox, the tobacco industry defendants waived the comparative negligence defense. As previously discussed herein, the trial judge rejected a post-verdict motion asking the court to void the jury"s decision based on assumption of the risk. 68
In the following month, on March 30, 1999, a twelve person jury in Portland, Oregon found Philip Morris, Inc. liable for the lung cancer death of Jesse Williams in Branch-Williams v. Philip Morris, Inc. 69 The award included $79.5 million in punitive damages and $800,000 in compensatory damages to the estate of Mr. Williams. The decision was the biggest liability verdict ever against the tobacco industry. There, the pattern established Carter continued and the comparative fault defense was again waived.
The movement away from classic assumption of the risk doctrine to comparative negligence defenses has provided the opportunity for plaintiffs to get to trial and present evidence of tobacco industry defendant wrongdoing. That evidence has become increasingly effective at persuading juries to consider issues that have led to four verdicts for the plaintiff in a span of 31 months.
Common Knowledge Defense and Comment i of the Restatement 2d of Torts,
The American Law Institute (ALI) undertook to restate the law of torts in 1964. § 402A of the Institute"s Restatement (Second) of Torts provides special liability of a seller of a product for physical harm to the user or consumer if product is unreasonably dangerous. However, the Institute added a comment which excluded tobacco from strict liability: 70
Comment i. Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by «unreasonably dangerous» in this Section. The article sold must be dangerous to an extent 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. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous. [emphasis added]
Although it did not have the force of law, Comment i of the Restatement, published in 1965, and was influential with the judges who made rulings reflecting the sensibilities of the drafters of the Restatement. Inherent in those sensibilities were attitudes concerning common knowledge and assumption of the risk that work to the disadvantage of plaintiffs.
The tobacco example provided in the text of comment i suggests that the drafters were naive about the cigarette manufacturing and engineering process used by the tobacco industry. Hundreds of chemical additives, many of which are highly toxic, are used in the manufacture of cigarettes. There is a legitimate question whether tobacco with ammonia or other psychoactive and potentially toxic additives is really «good tobacco.»
Comment n of Restatement Second of Torts § 402 A provided that assumption of risk was a defense to strict products liability. 71 However, comparative responsibility (i.e., comparative fault) was not endorsed in the Restatement (Second) of Torts.
In 1998, the American Legal Institute issued a new Restatement (Third) of Torts. The new Restatement is intended to reflect the many changes in the law since the Restatement (Second) covering damages was first published. At that time most states treated a plaintiff’s contributory negligence or assumption of the risk as an absolute bar to recovery. Today forty-six states have adopted some form of comparative fault system. 72
The Restatement (Third) promises to impact directly the common law of product liability and the accompanying individual plaintiff’s right to recover from a product manufacturer. 73 It states that «[t]he nearly universal adoption of comparative responsibility by American courts and legislature has had a dramatic impact on these issues.» 74 The new Restatement «endorses pure comparative negligence (i.e., if the plaintiff is 99 % at fault he can still recover 1 % of his damages.» 75
While the Restatement (Third) is not law and may or may not be adopted by individual jurisdictions, the influence of the Restatement (Second) of Torts § 402 A was unprecedented. 76 The Restatement (Third) of Torts" section on products liability supports the trend away from treating assumption of risk as an all-or-nothing defense in products liability cases. § 17 of the draft states that «[a]ll forms of plaintiff’s failure to conform to applicable standards of care are to be considered by the trier of fact for the purpose of apportioning responsibility between the plaintiff and the product seller or distributor.» 77
This trend is reflected in the recent trend in tobacco litigation toward allowing the plaintiff to make his case and permitting the jury to decide whether or not it was entirely the plaintiff"s fault that he was stricken with lung cancer. The problem of a smoker’s personal choice remains a consideration under the Third Restatement’s approach to strict liability; however, the consumer’s knowledge is merely one factor weighed by the court in its broad balance of risks and benefits. 78 The consumer may have known that smoking imposed some risk, but he may not have known the severity of the risk and the risk-utility balance favored in the Restatement (Third) seems to be in the smoker’s favor. 79 It is a strong indication of the way the American legal community has changed its views regarding tobacco liability that there is no analogue to «comment i» in the new Restatement. An effort to include such language was reversed by the Institute"s membership in a floor vote.
States Views on Comment i
In 1993, the state of Texas, passed a civil justice reform (i.e., «tort reform») law to restrict litigation in that state. The measure effectively banned tobacco litigation and may have been drafted by tobacco industry agents. 80 The provision dealing with tobacco made direct reference to comment i of the Restatement (second) of Torts. 81
An almost identical measure had been passed in California in 1987. 82 For ten years, potential smoker plaintiffs in that state were unable to file individual lawsuits until the law was amended in 1998 by a measure restoring the common law rules as applied to tobacco defendants. 83 The first tobacco case tried in California since the restriction was lifted was the Henley case which resulted in a jury verdict for the plaintiff.
In another state, Ohio, the Ohio Products Liability Act includes a «common knowledge» defense to negligence and strict liability claims. That section states:
A product is not defective due to lack of warning or instruction or inadequate warning or instruction as a result of the failure of its manufacturer to warn or instruct about an open and obvious risk or a risk that is a matter of common knowledge. 84
In that state, courts have held that the dangers of smoking were common knowledge and barred by the Ohio Products Liability Act 85 except in a pending case where the plaintiff quit smoking in 1966 before the danger was within the court’s definition of «common knowledge.» 86
In contrast to Ohio, where rulings by federal district courts have resisted tobacco litigation, the New Jersey Supreme Court ruled in 1990 that the New Jersey Products Liability Law does not provide to tobacco companies a common knowledge defense bar to litigation as a matter of law. 87 The language in the New Jersey Products Liability Law is almost identical to that in the Ohio statute. But in New Jersey, the state’s highest court ruled that, «we are unable, therefore, to decide that as a matter of public policy, manufacturers of cigarettes should be immunized from liability for the harms caused by their products. That decision is consistent with the general policy in New Jersey of ‘liberally favoring jury resolution of defectiveness issues.’» 88 The New Jersey Court recognized the influence of comment i on the Products Liability Law but ruled that it was not simply a codification of the comment.
Conclusion
Assumption of the risk and related plaintiff conduct / victim-blaming defenses are no longer a major barrier to tobacco litigation by smokers in the United States. While an obstacle in some jurisdictions resulting from legislative created diminutions in plaintiffs rights, tobacco companies can no longer rely on these defenses.
Recent trials have demonstrated that jurors are responding with anger toward tobacco defendants when presented with evidence of industry efforts to deceive and addict consumers and are now less likely to blame the plaintiff for three major reasons: 1) the product is highly addictive and the plaintiffs’ freedom of choice diminished; 2) most plaintiffs began smoking before reaching adulthood and were not able to make a mature and informed decision before the onset of addiction to the product; and 3) the vast and deliberate difference between the consumer"s and defendant"s knowledge of the specific risks posed by the products.
As a result, smoker plaintiffs in tobacco trials have obtained favorable verdicts in nearly half of the trials held over the past three years after decades of failure. Now the tobacco companies must assume the risk of financial ruin in the courts as a result of their conduct over past fifty years.
Submitted this 19th Day of December, nineteen hundred and ninety nine:
Richard A. Daynard, JD, Ph.D.
Professor of Law
Northeastern University School of Law
400 Huntington Avenue
Boston, MA 02115 USA
Mark A. Gottlieb, JD
Staff Counsel
Tobacco Products Liability Project
400 Huntington Avenue
Boston, MA 02115 USA
Appendix A
Summary of Leading Non-Statutory Causes of Action in U.S. Cigarette Cases
* Note that the names of these causes of action may vary slightly from cases to cases based on the conventions of the jurisdictions in which they were raised. Here we have chosen the most common uses. Statutory causes of action based on consumer protection statutes or product liability statutes vary greatly from state to state and are omitted herein.
Negligence: A defendant cigarette manufacturer may be found negligent if it fails to exercise the degree of care that a reasonable cigarette manufacturer would exercise under like circumstances. Defendant has a duty to provide a reasonably safe cigarette in design and manufacture and to warn of the addictive nature of nicotine in cigarettes. In U.S. cases, the Federal Cigarette Labeling and Advertising Act (15 U.S.C. §§ 1331 et seq. ) (requiring warning labels) preempts most failure-to-warn negligence claims for conduct occurring from 1969 to the present. Defendants knew or should have known that Defendants’ cigarettes were inherently defective, unreasonably dangerous, deleterious, poisonous, addictive and otherwise harmful to smokers. In the complaint in the class action Engle et al. v. R.J. Reynolds Tobacco Co., et al. (hereinafter referred to as «Engle»), the plaintiff enumerates seven specific failures to exercise the requisite degree of care:
failure to design and manufacture products that were not addictive;
failure to design and manufacture tobacco products that did not contain an unreasonable level of nicotine;
failure to warn the smoking consumers of the addictive nature of nicotine when said Defendants knew or should have known of nicotine’s addictive nature;
failure to take any reasonable precautions or exercise reasonable care to adequately or sufficiently reduce or remove the level of nicotine in cigarettes so that smokers would have the ability to quit;
failure to utilize a safer design that was readily available to Defendants, so that smokers could purchase a nicotine free cigarette;
failure to utilize accurate measurements as to levels of true nicotine yield and tar in «low tar» cigarettes;
failure to provide the smoking public with information known solely by the Defendants as to the health risks involved in smoking cigarettes and the addictive nature of nicotine;
failure to remove and recall tobacco products from the marketplace upon learning that cigarettes were addictive and poisonous and caused serious illnesses and death to smokers and those in the vicinity of cigarette smoke.
Plaintiff must prove defendant’s duty, breach, actual and proximate cause of injury, and damages.
Strict Liability: If a manufacturer or supplier of tobacco products sells defective products (defective in design or manufacture) such that it is unreasonably dangerous, then the defendant has breached its duty to supply reasonably safe products and may be held strictly liable. The products must be defective when they left the control of the defendant(s). An example would be cigarettes containing manipulated levels of nicotine that were manufactured by defendants and were expected to and did reach the ultimate user/customer without any changes in the product as manufactured, manipulated and sold. In Engle, three failures of the defendants were cited in the original complaint:
Defendants failed to design, manufacture, distribute and sell a safer alternative cigarette that would not addict smokers -- although a safer alternative design for cigarettes was available at all times material;
Said Defendants failed to warn the class representatives and members of the class that use of their product would cause addiction and the inability to stop smoking cigarettes;
Said Defendants failed to warn the class representatives and members of the class that the levels of nicotine were manipulated by said Defendants so as to insure the consumers’ addiction to cigarettes.
A strict liability count must establish a strict duty owed by the defendant, breach of that duty, actual and proximate cause of injuries, and damages.
Breach of Implied Warranty: If tobacco companies sell or supply cigarettes that were defective in that they were not reasonably fit for the uses intended, they can be held liable under for a breaching the implied warranties of merchantability and fitness. These two implied warranties apply to every sale of goods in the U.S. Therefore, tobacco defendants impliedly warranted that their tobacco products which were designed, manufactured and sold to the plaintiffs, were merchantable and fit and safe for their ordinary use. The control of nicotine levels to create and sustain addiction may be considered a breach of implied warranties. Also, because the products cause disease and death when used as intended, a breach of implied warranties is indicated.
Breach of Express Warranty : If tobacco companies sell or supply cigarettes that, at the time of sale or supply, did not conform to representations of fact made by said Defendant(s), either orally or in writing, they can be held liable under for a breaching the express warranties. Defendants expressly warranted to the Plaintiffs and members of the class that Defendants’ cigarettes were not addictive; that Defendants did not manipulate the nicotine levels in Defendants’ cigarettes; and that Defendants did not intend to addict Plaintiffs and members of the class. In Engle, plaintiffs argued that defendants expressly warranted in their advertising, promotion and packaging of cigarette products, that cigarettes contained specified levels of tar and nicotine. Defendants utilized inaccurate measuring devices to calculate the levels of tar and nicotine and understated them to the smoking public, including Plaintiffs. Defendants breached their express warranties by offering for sale and selling as non-addictive, cigarettes that were in fact addictive and contained elevated levels of nicotine manipulated by defendants with the intention to cause to become addicted to cigarettes.
Fraud and Misrepresentation : If tobacco defendants make a false statement of a material fact, either knowing the statement was false or misleading, or being without knowledge as to its truth or falsity, with the intention of misleading smokers, then they can be held liable for fraud and misrepresentation. The complaint in Patricia Henley v. Philip Morris, Inc., et al. (hereinafter «Henley») alleged that when tobacco defendants represented to members of the general public, including a plaintiff, that cigarettes and other tobacco products were of merchantable quality, and safe for the use for which they were intended, they accomplished these representations and induced members of the public and government, including plaintiff, to rely thereon through, among other methods, an aggressive and continuing campaign up to 1969 of deceptive, erroneous, misleading, and false advertisements in the print, cinema, radio and television media designed to conceal the true health hazards and addictive nature of cigarettes and to lure new, especially youthful, users to replace the older ones who died. After 1969, they continued to disseminate deceptive, erroneous, misleading, and false statements concerning the state of the medical research concerning cigarettes and the diseases they cause, as well as the extent of health hazards and the addictive nature of cigarettes and continued to lure new, especially youthful smokers to replace the older ones who died via «informational» communications, the dissemination of coupons and gifts, the underwriting of sports, concerts, and other such events, and the «underwriting» of purportedly scientific research and studies.
It is important that it is established that plaintiffs relied upon these misrepresentations and that this was a cause of the injury resulting in the requested damages.
Fraudulent Concealment : If defendants conceal or omit material information, not otherwise known or available, knowing the material was false and misleading, or failed to disclose a material fact concerning or proving the health effects and/or addictive nature of smoking cigarettes, then they can be held liable for fraud by concealment. In Henley, the plaintiff alleged fraudulent concealment and noted that defendants carried out a campaign of fraud, false statements, misrepresentations, and concealment of material information in three ways: First, they agreed falsely to represent to plaintiff and others that questions about smoking and health would be answered by a new, unbiased, and trustworthy source. Second, they misrepresented, suppressed and confused the facts about the health dangers of smoking, including addiction. They concealed their actual knowledge concerning their own negative health and addiction research results and their manipulation and control of the nicotine content of their products to create and perpetuate smokers" addiction to cigarettes were critical to the conspiracy. The defendants claimed, falsely, that there is insufficient «objective» research to determine if cigarette smoking causes disease and that cigarettes are not addictive. The success of the conspiracy depended upon the concerted action of the cigarette manufacturers [in a so-called «gentleman"s agreement»], for otherwise the revelation by one company of what it knew about the health consequences of smoking and/or the availability of a «safe(r)» cigarette and/or the addictive nature of the manufacturers" cigarettes would have thwarted the conspiracy. Third, the defendants used lawyers to misdirect what purported to be objective scientific research to create favorable, and to suppress and/or destroy unfavorable findings regarding the health consequences of smoking. To discourage meritorious litigation by plaintiffs injured due to tobacco, they engaged in «scorched earth» litigation tactics in combination with suppressing and distorting evidence in order to protect the industry’s existence and profits.
Civil Conspiracy-Misrepresentation and Civil Conspiracy-Concealment: If two or more of the defendants enter into an agreement to misrepresent information relating to the health effects of cigarette smoking, or the addictive nature of smoking cigarettes, with the intention that smokers and members of the public rely to their detriment, then they may be held liable for a civil conspiracy to misrepresent. If two or more of the defendants enter into an agreement to conceal information relating to the health effects of cigarette smoking, or the addictive nature of smoking cigarettes, with the intention that smokers and members of the public rely to their detriment, then they may be held liable for a civil conspiracy to conceal. In Engle, the plaintiffs alleged a broad range of conspiratorial conduct dealing with misrepresentation and concealment by the defendants, including:
Each of the defendants conspired to deprive the public of medical and scientific data reflecting the dangers associated with smoking cigarettes, including the addictive nature of nicotine.
These defendants have worked in collusion to utilize misleading words, half truths and visual imagery in a hugely successful advertising campaign to confuse children and teenagers who are contemplating smoking, about the reality, nature and extent of the dangers of cigarette smoking, and the addictive nature of nicotine.
These defendants have conspired to develop a public relations strategy aimed at combating the mounting adverse scientific reports regarding the dangers of smoking. There has been a conspiracy to refute, undermine and neutralize information coming from the scientific and medical community and to confuse and mislead the consuming public in an effort to encourage new persons to commence smoking and to encourage existing smokers to believe that they have made an «adult choice» to continue smoking.
There has been a conspiracy to completely hide all scientific data proving that nicotine is addictive and that smoking cigarettes causes serious illnesses, including lung cancer, emphysema and heart disease.
Defendants have conspired to manipulate the level of nicotine in cigarettes so as to keep a nation of smokers addicted and smoking. The nicotine levels have been intentionally raised in low tar cigarettes, to insure that smokers of low tar cigarettes remain addicted.
There has been a conspiracy of these defendants to deny the validity of statistics establishing that 434,000 persons die each year in the United States as a result of smoking cigarettes; there has been a conspiracy to suppress and hide medical testing and research through the Special Projects Division of the Council for Tobacco Research -- U.S.A.
There has been a conspiracy to spend billions of dollars each year to entice new smokers, targeting youngsters, women and minorities, to make up for the smokers who are dying or who have finally been able to quit, following serious debilitating illnesses caused by tobacco.
Defendants have conspired to intentionally miscalculate and inaccurately measure the levels of tar and nicotine in cigarettes so as to grossly understate those measurements and deceive the consuming public and the United States Government.
Defendants have conspired to design filters with tiny holes that would enable the tobacco industry to measure less tar and nicotine through conventional measuring mechanisms, than is actually received in the lungs of the smoker.
Defendants have conspired to manipulate the level of nicotine in low tar cigarettes so that the smokers of low tar cigarettes remain addicted.
Defendants have conspired to misrepresent the true measurement of tar and nicotine on cigarette packages -- knowing that the true yield of nicotine and tar is far greater than that disclosed.
Defendants have conspired to misrepresent to the public at large that there is still a legitimate controversy as to whether smoking cigarettes causes any diseases, with full knowledge that the opposite is true.
Defendants have conspired to utilize those portions of the tobacco leaves containing the most nicotine so as to maximize the level of nicotine and addiction in low tar cigarettes.
Defendants conspired to misrepresent to the public at large and members of Congress on March 25, 1994 and April 14, 1994, by stating under oath that nicotine is not addictive and cigarettes do not cause disease or death.
Defendants have conspired to avoid presenting to the American public a safer cigarette without nicotine, since a safer design would not produce a society of addicted smokers.
There has been a conspiracy by these Defendants to misrepresent to the United States Government and the American public that the tobacco industry advertises only to entice smokers to switch brands.
Defendants have conspired to establish the Special Projects Division of the Council for Tobacco Research -- U.S.A.; a division that was fraudulently established to hide medical research linking tobacco and disease and conceal evidence establishing that nicotine was and is addictive. These Defendants further conspired to utilize the «attorney/client privilege» as a means of hiding and suppressing medical research and testing performed by the Special Projects Division.
There has been a conspiracy to completely hide all scientific data proving that cigarettes cause serious illnesses, including lung cancer, and that nicotine is addictive.
The misconduct of these defendants through their conspiracy have been outrageous and in total disregard of the health and well being of members of the American public, including the class representatives and members of the class. There has been a concerted effort to increase profits, notwithstanding the suffering and premature death of millions of Americans.
All of the defendants have entered into a conspiracy to misrepresent and falsify data so as to convince the public at large that there is no danger from smoking cigarette and that nicotine is not addictive. Defendants Council for Tobacco Research -- U.S.A. and the Tobacco Institute, Inc. have been instrumental in this conspiracy to misrepresent and commit fraud. Through this conspiracy, Defendants have successfully kept from the public and the Plaintiffs herein the fact that smokers are addicted to nicotine and that smoking is responsible for millions of preventable deaths and debilitating diseases.
It is necessary that the misrepresentations where relied upon by plaintiffs and that they caused injury and damages specified by the plaintiff.
Intentional Infliction of Emotional Distress : If one or more of the defendants engaged in extreme and outrageous conduct or with reckless disregard to cigarettes sold or supplied plaintiffs with the intent to inflict severe emotional distress, then they may be held liable for intentional infliction of emotional distress. In Engle, the plaintiff alleged the claim by asserting:
Each of the defendants acted in an extreme and outrageous fashion towards plaintiff, the American public and the United States Government, by adamantly denying that nicotine is addictive while at the same time said defendants were manipulating the levels of nicotine in their tobacco products so as to addict plaintiffs to cigarettes.
Each of the defendants acted with the intention of causing severe emotional distress to the class representatives and members of the class. The conduct of each of these defendants, both singularly and in concert, was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency; said defendants’ conduct is intolerable in a civilized society and was calculated to cause the class representatives and members of the class to become addicted to cigarettes with resulting illnesses, disease, suffering and eventual death.
It is necessary for the plaintiff to demonstrate that the plaintiff did, in fact, suffer extreme emotional distress as a result of the defendants’ conduct.
Punitive Damages: Punitive damages may be available in certain jurisdictions where the defendant’s bad conduct rise to a very high level. The purpose of punitive damages is to punish the defendant and deter future bad conduct by other defendants. Usually punitive damages, when awarded, are paid to the plaintiff, but in some jurisdictions, some of the funds are reserved for specific state programs. In Henley, the plaintiff characterized the defendants’ behaviors in the claim for punitive damages:
Defendants behaviors were motivated by the financial interests of the cigarette defendants in the continuing, uninterrupted distribution and marketing of cigarettes and tobacco products and the acquisition of new, youthful consumers. In pursuance of said financial motivation, the defendants consciously disregarded the safety of the users of, and persons exposed to the smoke of, cigarettes and other tobacco products, and were in fact, consciously willing to permit cigarettes and tobacco products to cause injury to smokers and bystanders exposed to the smoke, including plaintiffs.
The conduct of the cigarette defendants was and is willful, malicious, outrageous, and in conscious disregard and indifference to the safety and health of the public, including plaintiffs. For the sake of example, and by way of punishing the cigarette defendants, plaintiffs seek punitive damages according to proof.
If punitive damages are allowed, the question of whether they are appropriate and the amount of any such damages is a matter for the jury to determine.
These nine causes of action are the most common in ones utilized by plaintiffs in current U.S. tobacco litigation. The specific elements and uses provided herein were drawn primarily from two leading contemporary cases, Engle and Henley (see Opinion of Counsel for relevant citations). Each case uses its own theories and fact patterns and may or may not precisely resemble those used in this summary.
Appendix B
Note
Plaintiffs" conduct as a defense to claims against cigarette manufacturers
Harvard Law Review
February, 1986
Copyright 1986 by the Harvard Law Review Association
Within the past two years, consumers of cigarettes and other tobacco products have brought a rash of lawsuits against these products" manufacturers. [FN1] The plaintiffs seek to recover damages for special and consequential losses allegedly caused by the use of these products. [FN2] This litigation marks the first attempt to hold the tobacco industry liable for smoking–related losses since a previous round of suits brought in the late 1950s and early 1960s failed to yield recoveries for plaintiffs. [FN3] The new cases have gained attention in the mass media [FN4] largely because of the prevalence of smoking in our society and the serious health risks associated with tobacco consumption. [FN5] Although *810 the cases have been brought under a variety of tort theories, strict liability seems to be the most promising theory for plaintiffs. [FN6] In many of these cases, the industry has responded by raising a variety of affirmative defenses based on plaintiffs" conduct. [FN7] Although at first glance the cigarette litigation seems to offer the paradigmatic case for a successful plaintiff–conduct defense, [FN8] further examination of the particular facts of these cases and the underlying concerns of tort law suggest that a seemingly improbable outcome–– failure of the defense––may be justified.
This Note considers doctrinal and justificatory considerations that bear on the use of plaintiff–conduct defenses in the pending product liability actions against tobacco manufacturers. Part I applies the plaintiff–conduct doctrines to the cigarette litigation and concludes that the defenses may be unsuccessful in many of these cases. Part II considers justificatory theories of tort law as they apply to the cigarette *811 litigation and concludes that, on balance, these rationales undermine the defenses in such cases.
I. Doctrinal analysis of plaintiff–conduct defenses in cigarette product liability actions
Section 402A of the Restatement (Second) of Torts provides for strict products liability for physical harm resulting from "unreasonably dangerous" products. [FN9] Comment n to section 402A provides that a plaintiff"s conduct will constitute an affirmative defense when she "voluntarily and unreasonably proceed s to encounter a known danger." [FN10] Under various doctrinal rubrics, most jurisdictions have adopted some form of this defense. [FN11] Because the defenses lessen the "strictness" of strict liability, some courts and commentators have questioned the appropriateness of plaintiff– conduct defenses in products liability actions. [FN12] To meet this concern, courts have interpreted the defenses narrowly against defendants, demanding that defendants prove that plaintiffs" actions met certain stringent requirements. [FN13] These requirements, which have been applied with varying rigor, include that the plaintiff was competent to know a dangerous condition, knew the activity in question was dangerous, appreciated the nature and extent of the danger, and voluntarily exposed herself to *812 the risk. [FN14] In the cigarette cases, courts will encounter a complex factual situation to which these flexible requirements must be applied.
A. Plaintiffs" Competence to Asses Tobacco"s Risks
A threshold doctrinal condition for using a plaintiff"s conduct to bar or limit her recovery is that the plaintiff was competent to recognize the dangerous situation when she encountered it. Plaintiffs who began smoking as minors have raised the competence question in the tobacco cases by arguing that they are not legally accountable for (that is, are not at fault for, or have not assumed the risk of) their decision to smoke. Because the great majority of adult smokers started before reaching the age of twenty–one, [FN15] a ruling exempting those who began smoking as minors from defenses based on that decision would have a major impact on the cigarette cases. [FN16]
The legal status of minors in plaintiff–conduct doctrine is uncertain. [FN17] Some commentators have argued that minors should be deemed incompetent per se to assume the risk of cigarette smoking, just as they are incompetent to consent to sexual relations or to enter into binding contracts. [FN18] Such a blanket ruling might devastate the industry"s plaintiff– conduct defenses. [FN19] Even if courts take the more common approach––not ruling all minors" decisions to smoke incompetent per se, but instead examining each minor"s actual competence *813 ––defendants would still have difficulty meeting their burden of proof on the competence issue. Competence determinations are a complex factual matter, requiring a retrospective analysis of a plaintiff"s knowledge, mental capacity, and awareness of the risks as a minor. [FN20] In the cigarette cases, the industry will have to face the allegation that it has deliberately appealed to minors, "seducing" them to become cigarette addicts before they were competent to assess the risks of smoking. [FN21]
B. Plaintiffs" Knowledge of Tobacco"s Risks
Defendants asserting a plaintiff–conduct defense in a products liability action must prove that the plaintiff acted knowingly with respect to the risk. [FN22] Defendants must show either that the danger encountered was so obvious and notorious that knowledge of it may be assumed, [FN23] or that the manufacturer"s explicit warning informed the user of the product"s danger. [FN24]
Knowledge that smoking has potential health risks has become widespread in the two decades since the first Surgeon General"s Report on smoking and the subsequent public debate over smoking"s health hazards. [FN25] Two recent studies show that only 10 % of the public is unaware that cigarette use is "hazardous to health"; it seems, however, that smokers––especially heavy smokers––are somewhat less aware *814 of these dangers. [FN26] Nonetheless, there are few other products for which such a general awareness of possible danger exists. Moreover, cigarette packages have, since 1965, carried an explicit warning of the health hazards of cigarette smoking––a warning that was strengthened in 1970. [FN27] In addition, following a 1972 consent decree between the tobacco industry and the Federal Trade Commission, a health warning has appeared in all cigarette advertising. [FN28] As a result of both the general knowledge and the warnings, defendants and commentators have argued that smokers knowingly assumed the risks of cigarette smoking. [FN29]
Plaintiffs and some commentators respond that the industry cannot establish that smokers had sufficient knowledge of smoking"s dangers to have assumed the risk of cigarette use. They point in particular to three defects in the general knowledge and the warnings that render them inadequate. First, general public knowledge of smoking"s dangers may not extend to awareness of smoking"s particular health risks, which include lung cancer, heart disease, and pregnancy complications. [FN30] Nor, until recently, have the general warnings appearing in advertisements and on cigarette packages provided any specific caution as to these health problems. [FN31] Plaintiffs therefore allege that, whatever general knowledge they might have had of smoking"s dangers, this awareness does not meet the doctrinal requirement of a specific knowledge of the risk. [FN32] Second, plaintiffs point to their lack of information or warning as to the magnitude of smoking"s risks. [FN33] Finally, most smokers have lacked an awareness of the risk of addiction to tobacco use; many commentators see this lack of awareness of addiction as a key factor in the current litigation. [FN34] Because of these defects in plaintiffs" awareness of smoking"s risks, the tobacco industry may be unable to meet its burden of proving that a plaintiff"s decision to smoke was a knowing one.
C. Plaintiffs" Voluntariness in Using Tobacco
Although anecdotal accounts of the addictive nature of tobacco use date back to the 17th century, and many reports of addiction were known in the early 1960s, smoking"s addictive nature has only recently been widely considered. [FN35] Although the ability of millions to stop smoking has led some to question the danger of tobacco addiction, [FN36] the current consensus of the medical community is that smoking is addictive. [FN37] If courts were to accept this medical conclusion, two considerations suggest that it would be hard for manufacturers to employ a plaintiff–conduct defense successfully.
First, addition makes a plaintiff"s decision to continue smoking less voluntary, and only voluntary activity will support a plaintiff–conduct defense. Consequently, current plaintiffs are prominently pleading addition (and defendants" failure to warn them of addiction) to blunt defendants" claims that smokers voluntarily assumed the risk *816 of continued, lifetime smoking. [FN38] Doctrinally, a plaintiff addicted to a product––without warning of the danger of addiction––might not be held to have assumed the risk of continued use. [FN39] But this addiction "defense to the defense" will be viable only if the plaintiff had neither warning nor sufficient knowledge of the danger of addiction; a smoker who had such information may have assumed the risk of addiction as well as the risk of smoking. Furthermore, before plaintiffs can make effective use of the addiction issue they must prove that cigarettes are generally addictive, rather than addictive merely to a few hypersensitive individuals. [FN40]
Second, plaintiffs" claims of addiction are related to the issue of minors" incompetence to assess the risks of smoking. [FN41] If minors are deemed incompetent to assess smoking"s dangers––and thus not legally responsible for their decision to start smoking––defendants are likely to argue that plaintiffs" continued smoking beyond the age of competence "ratified" their earlier, incompetent decision to smoke. [FN42] Addiction is the key to rebutting this ratification argument: if a plaintiff can demonstrate that smoking is addictive and that she became addicted before she was competent to assess the risks of smoking, a defendant will be unable to establish that her conduct was ever simultaneously competent and voluntary. [FN43] A showing by plaintiffs that tobacco is addictive will therefore cause far fewer cigarette cases to fall within the plaintiff–conduct defense than one might otherwise have expected.
D. The Impact of Cigarette Manufacturers" Conduct
Plaintiffs and supportive commentators have argued that two types of tobacco industry conduct undercut the industry"s assertion of a *817 plaintiff– conduct defense. First, they argue that the industry should not be allowed to assert that smokers assumed tobacco"s risks while refusing to admit in court that such risks exist. [FN44] Although this statement of the industry"s litigation posture is accurate, [FN45] the argument fails to distinguish between representations made to consumers and alternative pleadings made to a court. Inconsistent or contradictory representations to consumers might well undercut the legal effect of warnings to these consumers, but inconsistent or alternative court pleadings are permissible, [FN46] particularly when the defendant is "legitimately in doubt about the factual background of its case or the legal basis for its defense." [FN47]
Second, plaintiffs allege that manufacturers" promotional activities directed at consumers have undermined the effectiveness of the health warnings. [FN48] Courts in other contexts have held that manufacturers" promotional activities may render warnings ineffective as a matter of law, even when the consumers in question were far more sophisticated than the average smoker. [FN49] In the case of cigarette advertising, the conduct and consequences of tobacco industry campaigns––which have allegedly suggested that certain types of cigarettes could be smoked safely––has been highly controversial. [FN50] Furthermore, cigarette advertisements that associate smoking with "health, wealth, luxury, and achievement" are widespread; [FN51] advertising efforts directed *818 at minors may particularly weaken the industry"s case. [FN52] Plaintiffs in the current litigation have alleged that they relied on these advertisements and were induced by them to continue smoking notwithstanding the warnings. [FN53]
In sum, although the cigarette cases might appear to offer the quintessential example of consumers" knowing and voluntary assumption of a product"s risks, an application of the plaintiff–conduct doctrine to these cases indicates that this result is far from certain. Instead, it suggests that the factual circumstances of each case will be critical to the success or failure of a plaintiff–conduct defense in that action, with plaintiffs prevailing far more often than might intuitively be expected. The uncertainty of the outcome is increased by two additional considerations. First, the plaintiff–conduct doctrine has been applied with varying rigor in the product liability area generally, [FN54] depriving the courts of definitive doctrine to follow in the tobacco context. Furthermore, because of the substantial ramifications that would result from an award of damages to plaintiffs, courts may be hesitant to base a decision on a key issue like the plaintiff–conduct defenses on doctrine alone. Almost certainly they will be drawn to the competing justificatory theories underlying tort law to support their decisions. Part II of this Note considers how such justifications apply in the context of the cigarette litigation.
Ii. Justificatory theories and the cigarette cases
Courts and commentators have advanced various fairness and utilitarian justifications in attempting to give content to the doctrinal requirements of plaintiff–conduct defenses in strict product liability actions. [FN55] The following analysis examines these justifications in the *819 rationales offer only limited guidance, utilitarian considerations offer strong support for narrowing the scope of the plaintiff–conduct defenses in these cases.
A. Fairness Justifications and Cigarette Plaintiff–Conduct Defenses
In arguing about the scope of the plaintiff–conduct defenses in cigarette cases, both plaintiffs and defendants invoke fairness justifications for tort doctrines. [FN56] The following analysis considers how three justifications might apply to the cigarette cases: the first, corrective justice, offers little direction to a reviewing court; the second, distributive justice, may be inappropriate but will inevitably aid plaintiffs; and the third, based on benefit–burden analysis, provides valuable support for plaintiffs" position.
I. Corrective Justice.––A principal fairness concern in tort law is corrective justice: the one who is responsible for the wrong should pay. [FN57] In the context of the plaintiff–conduct defenses, this principle suggests that when the plaintiff causes the loss she experiences––by her own careless actions or by her decision to bear the consequences of her choices–– she should bear the loss. [FN58] This principle of personal accountability is a key justification for the cigarette defendants" assertion of a plaintiff– conduct defense: defendants insist that plaintiffs should be held responsible for their choices to smoke, because those choices ultimately caused any harm they suffered. [FN59] Industry attorneys have been sharply critical of individuals choosing to smoke and then "turning around and suing the manufacturer" for their losses. [FN60]
For two reasons, this otherwise powerful corrective justice rationale may not provide substantial support for the defendants" position on the plaintiff– conduct defenses. First, commentators have noted that "individual accountability" arguments fail to distinguish between *820 a plaintiff"s choice to smoke cigarettes and a defendant"s choice to manufacture them. Under this view, there is no compelling reason for choosing to bar a plaintiff"s recovery because of her individual choice to smoke when the defendant is equally responsible because of its "individual choice" to produce cigarettes with their attendant health risks. [FN61] A second argument is that cigarette manufacturing is so morally abhorrent that industry conduct in "making and aggressively marketing cigarettes constitutes the intentional infliction of death" and should consequently deprive manufacturers of any defense that would lessen their liability. [FN62] This second approach, however, is simply the polar opposite of defendants" characterization of the plaintiffs" behavior as "tawdry." [FN63]
Arguments about corrective justice in the cigarette cases thus seem reducible to competing moral claims regarding "individual smoker accountability" on the one hand, and "corporate responsibility of tobacco manufacturers" on the other. Both the plaintiffs" and the defendants" positions are rooted in fault–based notions that may be inapplicable to these liability–without–fault cases. Courts seeking to give content to the plaintiff–conduct defenses in the cigarette cases will find little substance in these finger–pointing claims and should focus instead on other justificatory theories.
2. Distributive Justice.––Some commentators argue that courts affixing tort liability should consider inequalities in the distribution of economic and information resources and should shift losses to ensure that accidents are not allowed to exacerbate inequalities in wealth. [FN64] Although other commentators have criticized this approach as nothing more than a "deep–pocket" theory running contrary to what they consider to be tort law"s principal concern––corrective justice [FN65]––such thinking remains a significant element of tort jurisprudence, particularly in the modern regime of liability without fault. [FN66]
*821 Whether or not this rationale is appropriate, courts seem certain to take it into account when plaintiff–conduct defenses are litigated in the cigarette cases. Judges and juries are sure to be influenced by the image of "average" individuals––homemakers, craftspeople, or laborers––being charged by major cigarette manufacturing corporations with possessing the knowledge to make appropriate use of tobacco products and being forced to pay the full consequences of their consumption. [FN67] Furthermore, because manufacturers may be better equipped than individuals to bear losses, they may be more fairly saddled with the enormous burdens that cigarettes impose; the weight of a catastrophic burden on one family would be more individually devastating than the impact of the loss if it were absorbed and spread by the industry.
3. Benefit–Burden.––A third fairness concern is commonly referred to as "benefit–burden" reasoning: those who enjoy the benefits of an activity should jointly carry the burdens that the activity generates. [FN68] It is obvious that a broad community shares the benefits of cigarette manufacturing in this country. [FN69] Benefit–burden reasoning suggests that all who benefit from the existence of the cigarette industry––manufacturers, employees, shareholders, and consumers––should share cigarette losses; courts interpreting the plaintiff–conduct defense should therefore do so in a way that will avoid placing the entire burden of smoking on those unfortunate individuals who are arbitrarily afflicted with cigarette–related illnesses. The industry"s ability to spread the costs of smokers" losses among all who benefit from tobacco manufacture and consumption suggests that imposing liability on the industry would lead to a more equitable sharing of the burdens than is currently the case. [FN70] Thus, benefit–burden analysis *822 suggests that the plaintiff–conduct defense should be construed narrowly.
B. Utilitarian Justifications and Cigarette Plaintiff–Conduct Defenses
Two principal utilitarian justifications generally support the availability of plaintiff–conduct defenses in strict products liability cases. The first is that such defenses promote a more efficient allocation of society"s resources; the second is that the defenses promote accident avoidance at the least possible cost. But far from suggesting an expansive interpretation of plaintiff–conduct defenses in the cigarette litigation, these justifications support a more narrow interpretation of the defense in these cases.
I. Resource Allocation.––The first of the utilitarian justifications attempts to further allocative efficiency. Its premise is that resources will be most efficiently allocated if consumers and manufacturers are allowed to contract freely among themselves for the allocation of risk, because consumers will pay the requisite price for the level of accident–loss avoidance that maximizes their collective utilities. [FN71] This bargainbased rationale supports the plaintiff–conduct defenses by pointing to the benefits of permitting each individual to decide whether to assume a product"s risks in a contractual agreement with the product"s manufacturer. [FN72] The rationale also suggests that legal intervention in private arrangements between cigarette sellers and buyers––if appropriate at all––should be limited to requiring warnings of cigarettes" dangers, leaving consumers free to "purchase such items in the full knowledge of their dangers." [FN73]
This justification for the plaintiff–conduct defenses is ill–suited to the cigarette cases. First, because of the presence of loss spreading mechanisms such as private health insurance, social welfare programs, and social insurance plans, a consumer"s choice to assume the health risk of smoking often does not mean that she will in fact assume the financial costs of tobacco use. [FN74] This problem of externalization of *823 costs, recognized in the abstract even by advocates of the contract–for–risk argument, [FN75] may be particularly significant in the case of cigarettes. Cigarette smoking imposes a massive burden on all levels of government, through the cost of government– sponsored health and welfare benefits, the loss of tax revenues due to illness and premature death, and the cost of supporting the families of smoking"s victims. [FN76] It is unclear to what extent this burden is recovered from state and federal cigarette taxes. [FN77] An additional externalized cost of cigarette consumption comes in the shift of cigarettes" costs from smokers to others in the private sector. Those smoking–related health care costs not paid for by public programs are largely absorbed into privatesector loss spreading mechanisms––like pooled health insurance––and are consequently not reflected in the price of cigarettes or in other costs borne only by smokers. [FN78] Although some of these spreading mechanisms have been refined to contain these costs within the smoking community, serious externalization problems remain. [FN79]
*824 These externalities create a problem of allocative inefficiency: [FN80] because cigarettes" prices do not reflect their true cost to society, consumers misallocate resources by spending money on cigarettes that they would spend on other goods if cigarette prices were higher. [FN81] Some have disputed this point, asserting that cigarette consumption levels are largely a given: if smokers are in fact addicted to cigarettes, increasing cigarette prices by imposing liability on manufacturers may not result in any substantial decrease in cigarette consumption, and consequently may not lead to a more efficient resource allocation. [FN82] Recent studies, however, have suggested that cigarette consumption is at least somewhat sensitive to price changes, especially among younger smokers. [FN83] Thus, a decision to narrow the scope of the plaintiff–conduct defense, to the extent that it would lead to holding cigarette manufacturers liable for losses due to smoking, would force manufacturers to raise their prices, potentially resulting in a substantial decrease in cigarette consumption. [FN84] A more efficient allocation of resources might result, [FN85] both from lower cigarette consumption and from lower attendant medical and welfare costs. [FN86]
In sum, resource allocation concerns––often advanced as a justification for plaintiff–conduct defenses to strict product liability actions––do not support giving an expansive interpretation of those *825 defenses in cigarette litigation. Instead, an allocative efficiency rationale justifies the opposite conclusion: courts should interpret the plaintiff–conduct defenses narrowly to make findings of liability against tobacco manufacturers possible.
2. Accident–Cost Optimization.––The second utilitarian justification for plaintiff–conduct defenses focuses on accident–cost optimization. Under this rationale, a plaintiff–conduct defense is justified when it contributes to the general tort law goal of "reduc[ing] the sum of the costs of accidents and the costs of avoiding accidents." [FN87] Thus, when it is less expensive for the consumer than for the manufacturer to avoid the loss, this rationale argues that the plaintiff–conduct defense should be allowed because it will force the consumer to bear her own losses, and thereby provide an incentive for her to take the steps needed to avoid the accident to the extent she chooses. [FN88] Conversely, the justification suggests that when the manufacturer is the "cheapest cost avoider," disallowing the defense gives the manufacturer an incentive to spend an amount on product safety that will optimize accident– and accident–avoidance costs in society. [FN89] The Restatement mirrors this calculus: because it is presumed cheaper for the manufacturers of potentially or unavoidably dangerous products to learn about their hazards, manufacturers are encouraged to warn consumers of their products" dangers. [FN90] The Restatement then shifts its focus to consumers as cheaper accident avoiders, holding them contributorily negligent if they fail to heed the provided warnings. [FN91]
But this justificatory theory does not support the defendants" advancement of plaintiff–conduct defenses in the cigarette cases, because manufacturers have not provided smokers with information on how to use cigarettes in a manner that will prevent smoking–related injuries. As discussed above, cigarette smokers have received no specific warnings but have been warned only that smoking may be, or is, hazardous to their health. [FN92] It has never been established that a safe method or level of tobacco use exists. [FN93] Even if it could be demonstrated *826 in retrospect that lighter smokers or smokers of "low tar" cigarettes have suffered lower illness rates than have heavier smokers, only consumers who had this knowledge at the time of tobacco use were cheaper cost avoiders; those who lacked such knowledge should not be limited in their recovery by a broadly construed plaintiff–conduct defense. [FN94]
If the only method of accident avoidance within the consumer"s control is complete abstinence from cigarette smoking, the accident–cost optimization rationale cannot support invoking the defense against a consumer. If the manufacturer cannot make the product safer at a cost low enough to justify its continued production, then the optimal level of accident avoidance is achieved either by halting production or ending consumption. The cost of this accident– avoidance strategy is the same whether liability incentives are placed on consumers to stop consuming or manufacturers to stop manufacturing. Thus, if consumers cannot use the product more safely, and manufacturers cannot (cost– effectively) make the product safer, the cheapest cost avoider rationale does not help courts choose which party should bear the loss. In practice, however, there will be no way to ascertain in advance that no cost–effective technique for producing safer cigarettes is possible; the best way to resolve this uncertainty is to hold the manufacturer liable and encourage it to find ways to make its product safer. [FN95] Because this result would foster accident– cost optimization better than would leaving a consumer with the losses caused by smoking, the cheapest cost avoider rationale seems to argue, not in favor of, but against the defendants" invocation of a plaintiff–conduct defense in the cigarette litigation.
III. Conclusion
Some commentators have argued that just as the debate over plaintiff– conduct defenses in the workplace subsided only with the *827 adoption of workers" compensation plans, [FN96] the solution to the cigarette liability issue may finally come in the form of an administrative compensation scheme. [FN97] But such a viewpoint ignores two important considerations. First, recent major product liability controversies have not led to congressional action, but instead have been left to judicial resolution. [FN98] Second, as long as tobacco manufacturers continue to avoid liability in the courts, they will have little incentive to agree to an industry–funded administrative compensation scheme, [FN99] and the adoption of such a scheme without industry support seems unlikely. [FN100]
Consequently, judicial determinations of the scope of plaintiff–conduct defenses in cigarette liability cases are likely to be crucial to the final outcome of smokers" claims. The facts of these cases call into question the ability of the cigarette industry to meet the doctrinal requirements necessary to prevail when these defenses are invoked. At the very least, these shortcomings in defendants" cases should be sufficient in most instances to put the plaintiff–conduct issue before a jury, in which event plaintiffs, being more sympathetic, may be more successful than they would be before a judge. [FN101] Furthermore, justificatory theories that might normally bolster a manufacturer–defendants" doctrinal position do not support the tobacco industry"s reading of these affirmative defenses. Instead, many of these theories support the counter–intuitive notion that the plaintiff–conduct defenses should be construed in a mannor favorable to the plaintiffs in the cigarette cases––a critical step toward compensating some of the victims of smoking and their families.
[FN1] As of October, 1985, at least 240 such cases have been filed; although a variety of tobacco products are involved, the overwhelming majority of these cases involve cigarette smokers. See Kenney, Heavyweights Enter Legal Ring, Boston Globe, Oct. 20, 1985, at A24, col. 1; Molotsky, Tobacco Companies Are Facing Many Days in Court, N.Y. Times, Oct. 6, 1985, at E7, col. 1. Even though some issues are common to all tobacco products, this Note"s principal focus is on the questions presented by the cigarette cases. Over 170 of the pending cases arose out of litigation related to asbestosis; one asbestos manufacturer has alleged that smoking exacerbates asbestos–related injuries and is seeking contribution from tobacco manufacturers in liability suits brought against the asbestos industry. See GAF Files 170 Cross–Claims Against Tobacco Companies, ASBESTOS LITIGATION REPORTER (ANDREWS), at 10,931–32 (Oct. 18, 1985).
As of December 1985, at least two cases had yielded trial court judgments for tobacco manufacturers. See Roysdon v. R. J. Reynolds Tobacco Co., N.Y. Times, Dec. 14, 1985, at A10, col. 6 (E.D. Tenn. Dec. 13, 1985); Galbraith v. R. J. Reynolds Tobacco Co., Boston Globe, Dec. 24, 1985, at 6, col. 1 (Cal. Super. Ct. Dec. 23, 1985).
[FN2] See e.g., Complaint and Jury Claim, DiBlasi v. Brown & Williamson Tobacco Corp., No. 85–2291–K (D. Mass. filed June 3, 1985) [hereinafter cited as DiBlasi Complaint]; Amended Complaint and Demand for Jury Trial, Viola v. American Brands, Inc., No. 85–2496–G (D. Mass. filed Aug. 1, 1985) [hereinafter cited as Viola Complaint].
[FN3] See Hudson v. R. J. Reynolds Tobacco Co., 427 F.2d 541 (5th Cir. 1970); Green v. American Tobacco Co., 409 F.2d 1166 (5th Cir. 1969) (en banc), cert. denied, 397 U.S. 911 (1970); Pritchard v. Liggett & Myers Tobacco Co., 370 F.2d 95 (3d Cir. 1966), cert. denied, 386 U.S. 1009 (1967); Ross v. Philip Morris & Co., 328 F.2d 3 (8th Cir. 1964); Lartigue v. R. J. Reynolds Tobacco Co., 317 F.2d 19 (5th Cir.), cert. denied, 375 U.S. 865 (1963); Cooper v. R. J. Reynolds Tobacco Co., 256 F.2d 464 (1st Cir. 1958); Albright v. R. J. Reynolds Tobacco Co., 350 F. Supp. 341 (W.D. Pa. 1972), aff"d, 485 F.2d 678 (3d Cir. 1973), cert. denied, 416 U.S. 951 (1974). The complexity of these cases was staggering; for a discussion see Garner, Cigarette Dependency and Civil Liability: A Modest Proposal, 53 S. CAL. L. REV. 1423, 1423, 1425–28 (1980).
[FN4] See, e.g., Margolick, Antismoking Climate Inspires Suits by the Dying, N.Y. Times, Mar. 15, 1985, at B1, col. 3; Will, Addiction is Key in Suit Against Tobacco Firms, Courier–Journal (Louisville), Feb. 13, 1985, at A9, col. 3.
[FN5] About 54 million Americans smoke, consuming almost 615 billion cigarettes annually. See Richmond, Preface to OFFICE ON SMOKING AND HEALTH, U.S. DEP"T OF HEALTH, EDUC. AND WELFARE, SMOKING AND HEALTH: A REPORT OF THE SURGEON GENERAL, at vii (1979) [hereinafter cited as 1979 SURGEON GENERAL"S REPORT]; FED. TRADE COMM"N, REPORT TO CONGRESS PURSUANT TO THE FEDERAL CIGARETTE LABELING AND ADVERTISING ACT 39 (1985) [hereinafter cited as 1985 FTC REPORT]. The Surgeon General has concluded that cigarettes are the "chief, single, avoidable cause of death in our society and the most important public health issue of our time." Koop, Preface to U.S. DEP"T OF HEALTH AND HUMAN SERVS., THE HEALTH CONSEQUENCES OF SMOKING: CANCER: A REPORT OF THE SURGEON GENERAL, at xi (1982). But see M. MYERS, FEDERAL TRADE COMMISSION STAFF REPORT ON THE CIGARETTE ADVERTISING INVESTIGATION ch. 1, at 58–65 (1981) (reporting the tobacco industry"s criticisms of studies that allege a link between smoking and health disorders).
[FN6] See Garner, supra note 3, at 1436. Other theories include intentional tort and negligence. See id. at 1434–36; see also sources cited supra note 2.
[FN7] See, e.g., Defendant R. J. Reynolds Tobacco Co."s Answer to Second Amended Complaint at 15, Browner v. Johns–Manville Corp., No. 186692 (Cal. Super. Ct. filed June 24, 1982) [hereinafter cited as Reynolds" Answer]. Even when a plaintiff–conduct defense is not the issue per se, the idea that the plaintiff is responsible for her own harm is a key element of the industry"s case. See Chambers, Reynolds Wins Suit on Smoker and His Death, N.Y. Times, Dec. 24, 1985, at A8, col. 1.
[FN8] The popular view seems to be that the smoker is the cause of her own demise. See, e.g., Goodman, A New Weapon in Cigarette War, Boston Globe, Mar. 28, 1985, at 23, col. 4 ("Few of us are comfortable regarding the smoker as a hapless victim of the weed."); Margolick, supra note 4, at B1, cols. 5–6 (quoting a defendant"s counsel as predicting litigation victories for the industry in part because "people think there"s something a little bit tawdry about deciding to smoke and then turning around and suing the tobacco companies"). This understanding will undoubtedly affect juries considering the tobacco cases. See, e.g., Deutsch, Seeking the Culprit In a Smoker"s Death, Nat"l L. J., Dec. 30, 1985, at 13, col. 3 (quoting from cigarette case voir dire the "typical" view of one prospective juror that "My father died of lung cancer. He smoked and it was his choice to do what he wanted.").
This Note will use the term "plaintiff–conduct defense" to refer to doctrinal and justificatory issues common to several similar affirmative defenses in the cigarette product liability cases. These defenses pass under the names of "assumption of risk," "contributory negligence," "comparative fault," and satisfaction of a "mere duty to warn." See W. KEETON, PROSSER AND KEETON ON TORTS § 68, at 480 (5th ed. 1984); Keeton, Assumption of Risk in Products Liability Cases, 22 LA. L. REV. 122, 166 n.101 (1961); see also RESTATEMENT (SECOND) OF TORTS § 402A comment n (1965) (concluding that contributory negligence of the plaintiff is "not a defense," but adding that "the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense") (emphasis added).
[FN9] See RESTATEMENT (SECOND) OF TORTS § 402A. Comment i to § 402A, adopted in the wake of cases alleging that cigarettes were unreasonably dangerous, see supra note 3, includes the admonition that "[g]ood tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful." RESTATEMENT (SECOND) OF TORTS § 402A comment i. However, recent scientific evidence about smoking and changes in product liability law may undercut this conclusion. See, e.g., Page, Generic Product Risks: The Case Against Comment k and For Strict Tort Liability, 58 N.Y.U. L. REV. 853, 862 n.42 (1983).
[FN10] RESTATEMENT (SECOND) OF TORTS § 402A comment n.
[FN11] States vary in the manner in which they have adopted the plaintiff– conduct defenses. Some jurisdictions have "abolished" the "assumption of risk defense" in product liability actions only to permit defendants to raise plaintiff–conduct as an issue under "contributory negligence" or "comparative fault." See, e.g., Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 353–57, 446 N.E.2d 1033, 1039–41 (1983); Daly v. General Motors Corp., 20 Cal. 3d 725, 735, 575 P.2d 1162, 1167, 144 Cal. Rptr. 380, 385 (1978). Other courts have held that "assumption of risk in the sense of contributory negligence is . . . not available," but have ruled that certain actions by a consumer may bar recovery. Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479, 485 (3d Cir. 1965).
[FN12] See Keeton, supra note 8, at 166; Note, Assumption of Risk and Strict Products Liability, 95 HARV. L. REV. 872, 872–75 (1982).
[FN13] See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1096– 97 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974). Because of the doctrinal requirements, commentators have characterized the plaintiff–conduct defenses as narrow and limited. See R. POSNER, TORT LAW 708 (1982); Vargo, The Defenses to Strict Liability in Tort: A New Vocabulary with an Old Meaning, 29 MERCER L. REV. 447, 450 (1978).
[FN14] The courts are sharply divided in their application of these standards. Some have required substantial showings of competence, see, e.g., Gryc v. Dayton–Hudson Corp., 297 N.W.2d 727, 743 (Minn. 1980), cert. denied, 449 U.S. 921 (1980), or warnings that specifically detail the type and magnitude of the risk, see, e.g., Hobbs v. Armco, Inc., 413 So.2d 118, 119–20 (Fla. Dist. Ct. App. 1982); L. D. Brinkman & Company–Midwest v. National Sponge Cushion Co., 76 Ill. App. 3d 683, 692, 394 N.E.2d 1221, 1228 (1979), or have adopted restrictive notions of volition, see, e.g., Messick v. General Motors Corp., 460 F.2d 485, 494 (5th Cir. 1972). Others have interpreted these same requirements more favorably to defendants, by showing a greater willingness to deem a plaintiff competent, see, e.g., Toetschinger v. Ihnot, 312 Minn. 59, 69–70, 250 N.W.2d 204, 210–11 (1977), by accepting a general knowledge of the risks as sufficient, see, e.g., Mills v. United States, 764 F.2d 373, 378–79 (5th Cir. 1985); Hagans v. Oliver Mach. Co., 576 F.2d 97, 102–03 (5th Cir. 1978), or by developing more inclusive definitions of voluntary conduct, see, e.g., Weakley v. Fischbach & Moore, Inc., 515 F.2d 1260, 1265 (5th Cir. 1975).
[FN15] See 1979 SURGEON GENERAL"S REFORT, supra note 5, app. at A–13.
[FN16] Many plaintiffs in the pending cases began smoking while minors. See, e.g., Memorandum of Defendant R. J. Reynolds Tobacco Co. in Support of Motion to Dismiss at 4, Kirby v. R. J. Reynolds Tobacco Co., No. CIV–3–84–371 (E.D. Tenn. filed July 24, 1985) [hereinafter Kirby Defense Motion]; Viola Complaint, supra note 2, ¶9, at 2–3; Brief of Plaintiff–Appellees at 1, Cipollone v. Liggett Group, Inc., No. 85–5073 (3d Cir. filed July 12, 1985).
[FN17] For a historical review of the treatment of minors under the contributory negligence doctrine, see Toetschinger, 312 Minn. at 65–70, 250 N.W.2d at 208–11.
[FN18] See, e.g., White, Strict Liability of Cigarette Manufacturers and Assumption of Risk, 29 LA. L. REV. 589, 604, 610 (1969); cf. Bengford v. Carlem Corp., 156 N.W.2d 855, 865 (Iowa 1968) (applying a per se rule barring plaintiff–conduct defenses against minors).
[FN19] Critical to the impact that the competence issue will have upon the cigarette litigation is the resolution of the addiction and ratification issues discussed at pp. 815–16.
[FN20] See, e.g., Abee v. Stone Mountain Memorial Ass"n, 169 Ga. App. 167, 169–70, 312 S.E.2d 142, 144–45 (1983), aff"d, 252 Ga. 465 (1984) (assessing the ability of an eleven–year–old child to understand the risks of waterslide–related injuries).
An individualized analysis will not necessarily aid plaintiffs. Even a leading proponent of addiction–based liability has conceded that some reduction of plaintiffs" recovery may be appropriate, admitting that "young smokers understood when they first began to smoke that certain risks may be involved." Garner, supra note 3, at 1452. At the same time, Professor Garner suggests, a finding that a minor plaintiff is "responsible for some degree" of the risks of smoking, while holding a defendant liable for the "plaintiff"s addiction and subsequent injury" may make juries more willing to find for plaintiffs by lowering the stakes of the litigation. See id.
[FN21] See Califano, Foreword to 1979 SURGEON GENERAL"S REPORT, supra note 5, at iv. For a further discussion of the advertising issues, see pp. 816–18.
[FN22] See supra pp. 811–12.
[FN23] See W. KEETON, supra note 8, § 68, at 488; Hagans v. Oliver Mach. Co., 576 F.2d 97, 102–03 (5th Cir. 1978); Zidek v. General Motors Corp., 66 Ill. App. 3d 982, 985, 384 N.E.2d 509, 512 (1978). But see Micallef v. Miehle Co., 39 N.Y.2d 376, 384–86, 348 N.E.2d 571, 576–77 (1976) (repudiating the patent danger rule); Palmer v. Massey–Ferguson, Inc., 3 Wash. App. 508, 516–18, 476 P.2d 713, 718–19 (1970) (same).
[FN24] See RESTATEMENT (SECOND) OF TORTS § 402A comment j; Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 598 n.12, 495 A.2d 348, 356 n.12 (1985).
[FN25] See U.S. DEP"T OF HEALTH, EDUC. AND WELFARE, SMOKING AND HEALTH: REPORT OF THE ADVISORY COMMITTEE TO THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE (1964). For a plaintiff who began smoking prior to the issuance of the Report or the first cigarette package warnings and quit immediately thereafter, the assumption of risk defense would not apply. See Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479, 485–86 (3d Cir. 1965), cert. denied, 382 U.S. 987, amended, 370 F.2d 95 (3d Cir. 1966).
[FN26] See THE GALLUP OPINION INDEX, SMOKING IN AMERCA, Rep. No. 155 (1978); M. MYERS, supra note 5, intro. at 17, ch. 3, at 11. These studies show that 13 % to 17 % of smokers, and 20 % to 24 % of heavy smokers, are unaware that smoking is hazardous to health.
[FN27] See Federal Cigarette Labeling and Advertising Act, Pub. L. No. 89– 92, 79 Stat. 282 (1965); Public Health Cigarette Smoking Act of 1969, Pub. L. No. 91–222, 84 Stat. 87 (1970). Although several members of Congress were interested in the effect that the warning would have on future litigation and the plaintiff–conduct defenses, the question was not resolved during the 1964 or 1969 legislative debates. For a review of the debates, see Cipollone v. Liggett Group, Inc., 593 F. Supp. 1146, 1162–63 (D.N.J. 1984).
[FN28] See In re Lorillard, 80 F.T.C. 455, 460–65 (1972); see also Comprehensive Smoking Education Act, Pub. L. No. 98–474, § 4(a)(1)–(3), 98 Stat. 2201, 2202 (1984) (codified at 15 U.S.C.A. § 1333(a)(1)–(3) (West Supp. 1985)) (compelling warnings as a matter of law).
[FN29] See, e.g., Wegman, Cigarettes and Health: A Legal Analysis, 51 CORNELL L. REV. 678, 723 (1966); Reynolds" Answer, supra note 7, at 15.
[FN30] For an analysis of the particular health risks of smoking, see M. MYERS, supra note 5, intro. at 13–18.
[FN31] Apparently moved by calls for more specific warnings, see H.R. REP. NO. 805, 98th Cong., 2d Sess. 11, reprinted in 1984 U.S. CODE CONG. & AD. NEWS 3718, 3724, Congress enacted in 1984 a system of rotational warnings informing smokers of specific health risks to heart, lungs, and pregnant women. See Comprehensive Smoking Education Act, Pub. L. No. 98–474, 98 Stat. 2201 (1984).
[FN32] See, e.g., Second Amended Complaint at 20, Browner v. Johns– Manville Corp., No. 186692 (Cal. Super. Ct. filed Aug. 20, 1981); Viola Complaint, supra note 2, ¶21(d), at 5.
[FN33] For example, when smokers were offered four choices of what percentage of lung cancer cases were caused by smoking (the correct percentage being 85 %), 62 % of teen smokers and 54 % of adult smokers underestimated the risk. See M. MYERS, supra note 5, ch. 3, at 20. Underestimation of the magnitude of the general and specific health risks of smoking is extensive; for a discussion see id., ch. 3, at 45–48.
[FN34] Almost half of all smokers may be unaware that smoking is addictive. See M. MYERS, supra note 5, intro. at 18. Plaintiffs" attorneys and supportive commentators have emphasized this point. See, e.g., N.Y. Times, Nov. 12, 1985, at A19, col. 1; Garner, supra note 3, at 1436–37. Garner"s central thesis is that industry liability may be premised on a "failure to warn of addiction" theory.
[FN35] As early as 1604, King James is said to have been disgusted at the fact that tobacco users were "obstinately addicted"; Sir Francis Bacon made a similar observation. See Garner, supra note 3, at 1444 n.155. Modern scientific studies have yielded results consistent with these earlier intuitions; one recent report found that persons addicted to cigarettes experience an even higher relapse rate than heroin addicts. See Hunt & Matarazzo, Three Years Later: Recent Developments in the Experimental Modification of Smoking Behavior, 81 J. ABNORMAL PSYCHOLOGY 107, 108 (1973); see also Pollin & Ravenholt, Tobacco Addiction and Tobacco Mortality: Implications for Death Certification, 252 J. A.M.A. 2849, 2849–51 (1984) (discussing recent concern with tobacco addiction).
[FN36] The success of so many smokers in quitting has led even one plaintiff"s attorney to question the impact of addiction in the cigarette cases. See Mancusi, Lawsuits Attempt to Place Liability on Tobacco Firms, Boston Globe, Nov. 25, 1985, at 12, col. 5.
[FN37] In 1980, the disorder of "tobacco dependency" was included in the medical profession"s accepted authority on addiction, the American Psychiatric Association"s diagnostic manual. See AM. PSYCHIATRIC ASSOC. TASK FORCE ON NOMENCLATURE AND STATISTICS, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS § 305.1, at 176–78 (3d ed. 1980).
[FN38] See, e.g., DiBlasi Complaint, supra note 2, ¶12, at 4; Viola Complaint, supra note 2, ¶12, at 3.
[FN39] The scarcity of case law on the question of addiction"s mitigating effect on plaintiff–conduct makes predicting any result difficult. One of the few cases that confronted the issue was Crocker v. Winthrop Laboratories, 502 S.W.2d 850 (Tex. Civ. App. 1973), rev"d on other grounds, 514 S.W.2d 429 (1974). In Crocker, the plaintiff was held not negligent in contributing to his own death by taking the narcotic Talwin, when the jury found that his actions were a result of addiction. See id. at 853–54. The voluntariness of smoking has been questioned by legal commentators. See, e.g., Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32 TENN. L. REV. 363, 371 (1965) (questioning the use of the assumption of risk defense because "it is questionable how voluntarily many consumers are continuing to smoke").
[FN40] See RESTATEMENT (SECOND) OF TORTS § 402A comments i & j (distinguishing products dangerous to hypersensitive persons from those dangerous to "a substantial . . . population").
[FN41] See supra pp. 812–13.
[FN42] Ratification is a doctrine from contract law. See RESTATEMENT (SECOND) OF CONTRACTS § 7 comments d, e, § 85; 1A A. CORBIN, CORBIN ON CONTRACTS § 227, at 335–38 (1963). Because assumption of risk is a contract– oriented theory in tort law, the ratification doctrine may apply here as well.
[FN43] See Hager, Liability––A Burning Legal Issue, L.A. Times, Aug. 5, 1985, at 1, col. 1 (discussing prospects for litigation victory by smokers who became addicted while young).
[FN44] See, e.g., Margolick, supra note 4, at B4, col. 3 (quoting one plaintiff"s attorney as saying "I don"t see how you can assume a risk they claim doesn"t exist").
[FN45] See, e.g., id. at B4, col. 3 (quoting industry pleadings: "If there were any hazard in cigarettes manufactured by this defendant, which this defendant denies, [plaintiff] was on notice of the same and able to protect herself"); Defendant"s Memorandum in Support of Motion to Dismiss at 14–15, Roysdon v. R. J. Reynolds Tobacco Co., No. 3–84–606 (E.D. Tenn. filed July 24, 1985) (using similar language).
[FN46] See FED. R. CIV. P. 8(e)(2).
[FN47] 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1283, at 372–73 (1969 & Supp. 1985); see Little v. Texaco, Inc., 456 F.2d 219, 220 (10th Cir. 1972); Carter–Wallace, Inc. v. Riverton Labs, Inc., 47 F.R.D. 366, 369 n.18 (S.D.N.Y. 1969).
[FN48] See, e.g., Edell, Cipollone v. Liggett Group, Inc.: The Application of Theories of Liability in Current Cigarette Litigation, 1985 N.Y. ST. J. MED. 318, 320 (quoting a plaintiff"s lawyer"s assertion that assumption of risk is inapplicable because "cigarette companies, through their advertising, negated and neutralized the health warning").
[FN49] Most of the overpromotion cases have involved the work of drug company "detail men" and their communications with doctors and have concluded that overpromotion can undercut the effectiveness of a warning. See, e.g., Salmon v. Parke, Davis Co., 520 F.2d 1359, 1362–63 (4th Cir. 1975); Stevens v. Parke, Davis & Co., 9 Cal. 3d 51, 65, 507 P.2d 653, 661, 107 Cal. Rptr. 45, 53 (1973).
[FN50] For criticisms of the advertising campaigns, see M. MYERS, supra note 5, ch. 2, at 12–13. But see Brown & Williamson Tobacco Corp. v. Jacobson, N.Y. Times, Dec. 6, 1985, at A33, col. 1 (N.D. Ill. Dec. 5, 1985) (finding television commentator"s remarks about cigarette industry advertising practices––based in part upon the Myers study––libelous).
The controversy received renewed attention following a call by the American Medical Association for a prohibition on all cigarette advertising. See Kenney, Does AMA"s Prescription Cut Too Deep?, Boston Globe, Dec. 15, 1985, at A1, col. 1.
[FN51] 1985 FTC REPORT, supra note 5, at 7. Cigarettes are one of the most heavily advertised products in the nation, with advertising outlays increasing sharply in recent years. See id., at 6–8.
[FN52] One member of the Federal Trade Commission has charged the industry with using marketing techniques to encourage youth smoking. See Separate Statement of Commissioner Michael Pertschuk on FTC Endorsement of Rotational Health Warnings Legislation, May 3, 1984, reprinted in H.R. REP. NO. 805, 98th Cong. 2d Sess. at 25–27, 1984 U.S. CODE CONG. & AD. NEWS, 3718, 3738–40. But see Advertisement of R. J. Reynolds Co., People Weekly, Oct. 14, 1985, at 132 (stating "we don"t think it"s a good idea for young people to smoke").
[FN53] See, e.g., Viola Complaint, supra note 2, ¶¶26–28, at 7. The advertising–impact argument has received a mixed reaction from courts considering tobacco litigation; one court has concluded that "[e]fforts to convince the public that the risks do not exist . . . [may] give rise to a cause of action," see Cipollone v. Liggett Group, Inc., 593 F. Supp. 1146, 1148 (D.N.J. 1984), but a second refused to allow jury consideration of cigarette advertising in a case subsequently decided for defendants, see Chambers, supra note 7, at A8, col. 1.
[FN54] See supra p. 811.
[FN55] For a more extensive analysis of the theoretical justifications, see Note, supra note 12, at 875–90.
[FN56] There is some overlap between fairness and utilitarian justifications. For example, externalization––discussed below as an efficiency issue––is also a matter of fairness to nonsmokers, who are forced to pay for the costs of an activity in which they choose not to participate. See infra note 74.
[FN57] See Shrager, Products Liability Law––A Legal Saga of Consumer Protection, TRIAL, Nov. 1983, at 4. But see Sugarman, Doing Away with Tort Law, 73 CALIF. L. REV. 558, 603–04 (1985) (questioning the coherence of corrective justice theories).
[FN58] See Keeton, supra note 8, at 164 (stating that if "assumption of risk is to be maintained, it should be limited to those cases that fall strictly within the concept of consent to risk . . . [In such cases,] the doctrine is supported by policy factors concerned with plaintiff"s co–authorship of his own harm").
[FN59] See, e.g., N.Y. Times, Nov. 12, 1985, at A19, col. 1 (quoting a defendant"s position that the key issue is not addiction, but "personal responsibility . . . for one"s actions"). This characterization seems to have been accepted by the jury in Galbraith v. R. J. Reynolds Tobacco Co., Boston Globe, Dec. 24, 1985, at 6, col. 1 (Cal. Super. Ct. Dec. 23, 1985) case. See Chambers, supra note 7, at A8, col. 1 (reporting post–trial interviews of jurors).
[FN60] See supra note 8.
[FN61] See Note, supra note 12, at 888–89; Sugarman, supra note 57, at 606– 07.
[FN62] White, supra note 18, at 616; see White, The Intentional Exploitation of Man"s Known Weaknesses, 9 HOUS. L. REV. 889 (1972) (condemning cigarette manufacturing as immoral); cf. Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 819, 174 Cal. Rptr. 348, 388 (Cal. Ct. App. 1981) (criticizing a defendant"s choice to "disregard public safety in order to maximize corporate profits" and focusing on the vast number of persons endangered by defendant"s conduct).
[FN63] See supra note 8.
[FN64] See Keeton, Products Liability, 50 F.R.D. 338, 340 (1970). For examples of this approach, see Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 891 (Alaska 1979); Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 65, 207 A.2d 305, 312 (1965).
[FN65] See, e.g., Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537, 547 n.40 (1972).
[FN66] See Lubin v. City of Iowa City, 257 Iowa 383, 392, 131 N.W.2d 765, 771 (Sup. Ct. 1965) (stating that a decision of "which party can best stand the loss" plays an important role in determining tort liability); Peterson & Chin, Juries Don"t Ignore Assets and Identity of Defendant, Nat"l L. J., Nov. 11, 1985, at 16, col. 1 (reporting jury study that found substantial "deep pocket effect": severely injured plaintiffs who sued businesses received awards 400 % greater than plaintiffs in similar situations who sued individuals).
[FN67] See Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479, 486 (3d Cir. 1965) (comparing the abilities of the plaintiff (a cabinet–maker) and the defendant to assess the risks of cigarette use).
[FN68] For cases exploring this approach, see Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 63, 377 P.2d 897, 901, 27 Cal. Rptr. 697, 701 (1963); Lubin v. City of Iowa City, 257 Iowa 383, 391–93, 131 N.W.2d 765, 770–72 (1965); Bierman v. City of New York, 60 Misc. 2d 497, 498–99, 302 N.Y.S.2d 696, 698 (Civ. Ct. 1969).
[FN69] The benefit may be most directly measured by the profits derived by tobacco manufacturers and the enjoyment derived by tobacco consumers. But the benefits of cigarette manufacturing and consumption also include the economic activity generated by the industry; indeed, this economic rationale has been offered as one of the principal reasons why smoking is allowed notwithstanding the extensive evidence of its dangers. See Cipollone v. Liggett Group, Inc., 593 F. Supp. 1146, 1147 (D.N.J. 1984).
[FN70] Cf. Escola v. Coca–Cola Bottling Co., 150 P.2d 436, 441 (Cal. 1944) (concuring opinion of Traynor, J.) (arguing that such a sharing of losses is the most equitable method of handling the injuries that products inevitably cause).
[FN71] See R. POSNER, ECONOMIC ANALYSIS OF LAW 128 (2d ed. 1977).
[FN72] Some have questioned whether bargaining for risk is possible in a modern commercial society, see, e.g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 388–93, 161 A.2d 69, 86–88 (1960), or whether consumers can rationally make utility–maximizing choices about risk trading, see Kahneman & Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 ECONOMETRICA 263, 264 (1979).
[FN73] Buchanan, In Defense of Caveat Emptor, 38 U. CHI. L. REV. 64, 71– 72 (1970).
[FN74] One recent study found conflicting evidence on the question of how much of smoking"s costs are borne by nonsmokers, reporting, on the one hand, estimates that up to 62 % of these costs fall upon nonsmokers, but noting, on the other hand, that "it is not entirely clear that non–smokers subsidize smokers" ill health." See OFFICE OF TECHNOLOGY ASSESSMENT, SMOKINGRELATED DEATHS AND FINANCIAL COSTS 56 (1985); cf. Sugarman, supra note 57, at 603–04 (arguing that insurance provides compensation to most accident victims and that tort law is becoming merely "a process for having one insurer pay another").
[FN75] Professor Buchanan recognizes that externalities may require limitation of the free market approach. See Buchanan, supra note 73, at 70–71. He does not believe, however, that cigarettes fall into the category of products that should be so exempted, and he concludes that there is "no economic basis for making cigarette producers liable for damages due to lung cancer." Id. at 72.
[FN76] Although no comprehensive estimate has been made, one study found that smoking adds to the federal budget $2.1 to $7.1 billion per year in increased health care outlays for Medicare, Medicaid, and similar programs; smoking imposes a further burden on the federal treasury due to tax revenues lost when smokers" illnesses reduce their economic productivity (a loss estimated at $27 to $61 billion annually) and due to government outlays provided as income support for the families of smoking"s victims. See OFFICE OF TECHNOLOGY ASSESSMENT, supra note 74, at 51–52, 55. State and local governments also experience health and welfare outlays and revenue losses due to smoking.
The public sector externalization argument has its critics, however, see Boston Globe, Sep. 19, 1985, at 3, col. 3 (quoting the Tobacco Institute"s criticism of the OTA Study as "lifted from fuzzy studies openly sponsored by front–rank professional adversaries of tobacco"), and the health care argument can cut both ways, see T. SCHELLING, CHOICE AND CONSEQUENCE 73 (1984) ("There"s nothing quite like a heart attack for wiping people off the Blue Cross and Medicare rolls just before they begin to enter the expensive age.").
[FN77] In 1984, cigarette excise taxes raised $4.75 billion in federal revenues and $4.23 billion in state funds. See Toder, Issues in the Taxation of Cigarettes, reprinted in HARVARD UNIV. INST. FOR THE STUDY OF SMOKING BEHAVIOR AND POLICY, THE CIGARETTE EXCISE TAX 66–68 (1985) [hereinafter cited as HARVARD SMOKING REPORT].
[FN78] The smoking–related health care costs absorbed in the private sector have been most recently estimated at $9 to $28 billion. See OFFICE OF TECHNOLOGY ASSESSMENT, supra note 74, at 49–53.
[FN79] Adjusted health insurance rates for smokers are currently being implemented, see, e.g., Freudenheim, Smoking Toll Spurring Curbs, N.Y. Times, Oct. 1, 1985, at D2, col. 1, and may mitigate the externalization problem. But adjusted rates will never be a complete solution: first, they fail to solve the public sector externalization discussed at pp. 822–23; and second, for the large segment of the population that receives a portion of its health care coverage as an employment benefit, a substantial share of the premium add–on will be externalized by being passed on to the employer"s enterprise and its consumers.
[FN80] Some commentators have questioned whether allocative efficiency problems can justify tort liability findings. See, e.g., Sugarman, supra note 57, at 614–16 (calling resource allocation concerns "simply too thin a reed to support tort law"s continuation").
[FN81] The losses in health care and worker productivity have been estimated to amount to $2.17 per pack of cigarettes. See OFFICE OF TECHNOLOGY ASSESSMENT, supra note 74, at 55. Commentators have predicted a three–fold increase in the price of cigarettes if the pending liability suits are successful. See, e.g., Charney, Suing Against Smoking, Med. Tribune, July 3, 1985, at 21.
[FN82] See, e.g., Why Cut the Price of Smoking?, N.Y. Times, Sept. 14, 1985, at 22, col. 2 ("Hard–core smokers won"t be deterred by a tax of 16 cents, or even 32 cents.").
[FN83] See Warner, Consumption Impacts of a Change in the Federal Cigarette Excise Tax, reprinted in HARVARD SMOKING REPORT, supra note 77, at 88, 91, 94– 97; 1985 FTC REPORT, supra note 5, at 20 (suggesting that recent tax increases resulted in a 4.5 % drop in cigarette consumption).
[FN84] One commentator has calculated that a mere 16 cents increase in the price of cigarettes would cause 3.5 million persons not to smoke; in the all– important younger generation, the smoking population would drop by 820,000, or 17 %. See Warner, supra note 83, at 96–97. He estimates that consumption would drop 36 billion cigarettes annually. See id.
[FN85] One problem with reallocating resources through the tort system is the substantial cost of litigation in complex product liability cases like the cigarette actions. Concern over these litigation costs has led some commentators to advocate alternatives to tort liability, such as a "safety tax" on smoking. See Garner, Cigarettes and Welfare Reform, 26 EMORY L.J. 269, 332–33 (1977).
[FN86] The 16 cents increase discussed in note 84 could result in 860,000 fewer premature deaths for those currently age 12 and older. See Warner, supra note 83, at 96, 98. The health and welfare savings that would result are difficult to estimate and might be offset by increases in health care costs accompanying the extended longevity that might result from a reduction in smoking. See OFFICE OF TECHNOLOGY ASSESSMENT, supra note 74, at 56–62.
[FN87] G. CALABRESI, THE COSTS OF ACCIDENTS 26 (1970).
[FN88] See R. POSNER, supra note 13, at 715; Calabresi & Hirschoff, Toward a Test for Strict Liability in Torts, 81 YALE L.J. 1055, 1060–67 (1972). But cf. Keeton, supra note 64, at 340 (questioning whether different liability rules produce different accident or avoidance outcomes).
[FN89] See Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 398, 401 n.4., 451 A.2d 179, 185, 186 n.4 (1982); Beshada v. Johns–Manville Prods. Corp., 90 N.J. 191, 207, 447 A.2d 539, 548 (1982).
[FN90] See RESTATEMENT (SECOND) OF TORTS § 402A comments j, n.
[FN91] See id. at comment n.
[FN92] See supra pp. 814–15.
[FN93] Recent research has discredited suggestions that consumers can safely smoke certain types of cigarettes (for example, low "tar" or nicotine cigarettes) or a certain number of cigarettes each day. See M. MYERS, supra note 5, ch. 1, at 50–57. But see Owen, The Cigarette Companies: How They Get Away With Murder, Part II, THE WASH. MONTHLY, Mar. 1985, 42, 49 (quoting an industry executive suggesting that any health problems related to cigarettes are due to individuals" excessive consumption).
[FN94] The conclusion that producers should be held liable because consumers are not the cheapest cost avoiders would be undermined by a finding that a plaintiff"s smoking was so excessive as to constitute usage beyond that intended for the product. See W. KEETON, supra note 8, § 102, at 710–12. But courts have rejected the "beyond the intended use" analysis for cigarettes, holding that consumption "even to the extent of from one to three packages per day, was so clearly a matter to be expected among many smokers [as to place it] within the use or purposes for which the cigarettes were sold." Green v. American Tobacco Co., 325 F.2d 673, 679 (5th Cir. 1963).
[FN95] See Beshada v. Johns–Manville Prods. Corp., 90 N.J. 191, 207, 447 A.2d 539, 548 (1982); Bexiga v. Havir Mfg. Corp., 60 N.J. 402, 410–11, 290 A.2d 281, 285 (1972); Page, supra note 9, at 880–81.
[FN96] See F. HARPER & F. JAMES, THE LAW OF TORTS xlii–xliii (1956).
[FN97] See Garner, supra note 3, at 1463–64.
[FN98] Multi–billion dollar cases involving asbestors, DES, and the Dalkon Shield have failed to result in Congressional approval of products liability reform legislation. See Tarr, Is Reform Due?, Nat"l L.J., Dec. 30, 1985, S–3, cols. 2–3. But cf. Margolick, supra note 4, at B4, col. 3 (quoting the director of an anti–smoking group as saying that tobacco litigation "will soon make other toxic tort cases . . . look like preliminary bouts before the heavyweight match").
[FN99] Cf. Garner, supra note 3, at 1463–64 (concluding that damage awards would force the tobacco industry to seek a compensation plan in exchange for tort immunity).
[FN100] A Congressionally imposed compensation plan in the absence of tort liability would be a major setback to the industry––a setback that seems unlikely given the industry"s political influence. See N.Y. Times, Jan. 7, 1979, at 38, col. 3 (noting the historical political influence of the tobacco industry).
[FN101] But see Chambers, supra note 7, at A8, col. 1 (reporting jury verdict for cigarette manufacturing defendant).
Fotnoter
U.S. Department of Health and Human Services. Preventing Tobacco Use Among Young People: A Report of the Surgeon General. Atlanta, Georgia: U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 1994 at 8.
See Robert L. Rabin, Review Essay: Some Thoughts on Smoking Regulation, 43 Stan. L. Rev. 475, 493 (1991).
Saundra Torrey, «Record $81 million verdict in Tobacco Case.» Washington Post, March 31, 1999, p. A6.
See Restatement (Second) of Torts § 496A (1977); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 480-81 (5th Ed. 1984) (hereinafter cited as «Keeton»).
Where «the relationship of the defendant to the plaintiff is that of manufacturer to consumer, a duty of care is owed by the former to the latter.» See Milwaukee Electric Tool Corp. v. Superior Court, 15 Cal. App. 4th 547, 565-66 (1993).
Id.
See Barnes v. American Tobacco Company, 984 F. Supp. 842, 868 (E.D. Pa, 1997), cert. denied 119 S.Ct. 1760 (1999) (hereinafter cited as «Barnes»); see also Fernandez v. City of New York et al., 645 N.Y.S. 2d 1004, 1006 (1996); see Ouachita Wilderness Institute, Inc. v. Mergen, 947 S.W. 2d 780, 786 (1997).
See Restatement (Third) of Torts: Products Liability § 17 cmt. D, Keeton et al., § 68, at 495.
Richard L. Cupp, Jr., A Morality Play’s Third Act: Revisting Addiction, Fraud and Consumer Choice in «Third Wave» Tobacco Litigation, 46 U. Kan. L. Rev. p. 477 (April, 1998) (hereinafter cited as «Cupp»).
Barnes, 984 F. Supp. at 869; see also Ouachita Wilderness Institute, Inc., 947 S.W. 2d at 786; see also Stephen v. American Brands, Inc., 1986 WL 15622 (N.D. Fla. 1986); see Hildebrand v. Minyard, 494 P.2d 1328 (Az. Ct. App. 1972).
E.g., Barnes, 984 F. Supp. at 869.
Id., quoting Dougherty v. Royal Zenith Corp., 1991 WL 151913 (E.D. Pa. Aug. 1, 1991) (not reported in Fed Supp.).
Barnes, 984 F. Supp. at 869.
The jury verdict was reached on February 9, 1999 and widely reported, e.g., Barry Meier, «$51 Million Verdict Awarded to Smoker Is Biggest of Its Kind,» New York Times, February 11, 1999 at A1.
Sup Ct. of CA, SF, Case No. 995172.
First Amended Complaint, Henley v. Philip Morris, Inc., et al. (Sup Ct. of CA, SF, Case No. 995172), paragraphs 33-34,37.
Henley v. Philip Morris, Inc., et al. 14.2 TOBACCO PRODS. LITIG. REPTR. 2.33 (lowering punitive damages and denying motion for JNOV).
582 So. 2d 1263; 6.2 TPLR 2.295.
I.d.
99 Harv. L. Rev. 809 (1986).
582 So. 2d 1263 at 1265; 6.2 TOBACCO PRODS. LITIG. REPTR 2.295 at 2.296.
Myron Levin, New Analysis for the Tobacco Industry, L.A. Times, Aug. 13, 1996, at D1 (reporting new evidence that suggests tobacco executives have known for 30 years that their products were addictive).
Cupp at 474
Cupp at 482
Testimony of James W. Johnson before the House of Representatives Committee on Energy and Commerce Subcommittee on Health and the Environment, April 14, 1994 p. 559, viewed at http://www.house.gov/waxman/pdf/4-94tob/1-17.pdf.
Henley v. Philip Morris, Inc., et al. 14.2 TOBACCO PRODS. LITIG. REPTR. 2.33 (lowering punitive damages and denying motion for JNOV).
Cupp at 482.
582 So. 2d 1263 at 1265; 6.2 TPLR 2.295 at 2.296.
37 F.Supp. 2d 121, 125 (D. R.I. 1999)
Henley v. Philip Morris, Inc., et al. 14.2 TOBACCO PRODS. LITIG. REPTR. 2.33 (lowering punitive damages and denying motion for JNOV).
Richard Lacayo, Put Out the Butt, Junior, Time Magazine, Sept. 2, 1996, at 51
See, e.g., McDaniel v. Sunset Manor Co., 269 Cal. Rptr. 196, 199 (Cal. Ct. App. 1990).
See, e.g., Leal Beattie, Motor Sports: Tobacco Debate Raging, Dayton Daily News, Sept. 22, 1996, at 7D; D. James Romero, The First Puff, Los Angeles Times, Sept. 18, 1996, at E1 (citing a University of California-San Diego study that ranks advertising as a stronger reason than peer pressure for beginning smoking).
Cupp at 489.
99 Harv. L. Rev. 809, at 816.
Cupp at 489-91.
Wild v. Consolidated Aluminum Corp., 752 S.W. 2d 335 (Mo. Ct. App. 1988).
M. Stuart Madden, Products Liability § 13.8, at 15 (2d ed. 1988); see also Barnes, 161 F.3d at 148.
99 Harv. L. Rev. 809 (1986) at 813.
I.d. at 814.
132 F.R.D. 123 (D. Mass. 1990); 5.3 TOBACCO PRODS. LITIG. REPTR. 2.113.
Cupp at 491
Engle Jury Answer Sheet at 14.3 TOBACCO. PRODS. LITIG. REPTR. 2.108.
Viewed at http://wwwlive.who.ch/toh/worldnotobacco99/english/industry.htm. For a more complete selection, see http://www.tobacco.org/Documents/documentquotes.html or http://www.ash.org.uk/papers/chronologies.html.
No. 95-00934 CA (Fla. Cir. Ct. Duval County Aug. 9, 1996).
Note that the award was overturned on appeal under Florida"s Statute of Limitations. That decision has been appealed to the Florida Supreme Court, which heard the case in November of 1999.
No. 49 D 029302 CT 0008 (Ind. Super. Ct. Marion County Aug. 23, 1996).
Cupp at 490.
JAMA Science News Update March 17, 1999.
Id.
Cupp at 477-78; see also Restatement (Third) of Torts § 17 cmt. D, Keeton § 68, at 495.
Cupp at 478; see also Leavitt v. Gillaspie, 443 P.2d 61 (Alaska 1968) (holding that the doctrine of assumption of risk was no longer distinct from the concept of contributory negligence); Valley Nat’l Bank v. National Ass’n for Stock Car Auto Racing, Inc., 736 P.2d 1186 (Ariz. Ct. App. 1987) (abolishing assumption of risk in favor of comparative fault); Blackburn v. Dorta, 348 So. 2d 287 (Fla. 1977) (holding that assumption of risk as an affirmative defense merged with comparative negligence); Harrison v. Taylor, 768 P.2d 1321 (Idaho 1989) (abolishing assumption of risk in favor of comparative fault); Horton v. American Tobacco Company, 667 So. 2d 1289 (Miss. S. Ct. 1996) (finding assumption of risk doctrine is subsumed in comparative fault doctrine); Harvey v. Mid-Coast Hospital, 36 F. Supp. 2d 32 (Me. 1999) (finding the theory that the plaintiff’s claim could be barred because he or she voluntarily assumed the risk was abolished in Maine with the adoption of comparative negligence principles); Perez v. McConkey, 872 S.W. 2nd 897 (Tenn. 1994) (finding assumption of risk should not be retained as a separate defense but that «the reasonableness of a party’s conduct in confronting a risk should be determined under the principles of comparative fault»); Milwaukee Electric Tool Corp., 15 Cal. App. 4th at 566 (holding once it is found that the defendant owes a duty of care to the plaintiff and has breached that duty, the doctrine of assumption of risk is merged into the comparative fault scheme).
Castano v. American Tobacco Company, 84 F.3d 734 (5th Cir. 1996); see also Horton v. American Tobacco Company, 667 So. 2d 1289, 1293 (Miss. 1995) (upholding jury verdict for smoker plaintiff with $0 damages).
Hammons v. City of Tallulah, 705 So. 2d 276 (La. App. 2nd Cir. 1997).
582 So. 2d 1263 at 1266.
Civil Action No. 83-2864 D.NJ (1988).
693 F. Supp. 208; 893 F.2d 541, 554 (3d Cir. 1990).
N.J. Stat. Ann § 2A:15-5.1, -5.2 (West 1987).
The verdict was over turned by the U.S. Court of Appeals for the Third Circuit, see 893 F. 2d 541, and later remanded for a new trial by the U.S. Supreme Court, see 505 U.S. 504; 112 S. Ct. 2608. That the retrial did not occur and the case was voluntarily dismissed.
No. 95-00934CV-B ( Fla. Cir. Ct. Duval County, Florida, 1996).
Gilchrist Timber Co. v. ITT Rayonier, 696 So. 2d 334 (1997).
June Bell, « Tobacco trial victors busy,» The Florida Times-Union (Jacksonville, FL) April 28, 1997, p. A1.
Verdict form viewed at http://www.bottary.com/tobacco_verdict.htm.
Brown & Williamson Tobacco Corp. v. Carter 728 So. 2d 344 (1998).
No. 97-03522, Fla. 4th Jud. Cir (June 10, 1998); verdict video viewed at: http://www.audionet.com/video/courttv/061098_tobverdict.ram
Brown & Williamson Tobacco Corp. v. Angela Widdick, No. 98-894, Fla. App., 1st Dist.; 14.1 TOBACCO PRODS. LITIG. REPTR. 2.25.
Henley v. Philip Morris, Inc., et al., No. No. 995172 (Cal. Super.); Meier, Barry, «$51 Million Verdict Awarded to Smoker Is Biggest of Its Kind,» New York Times, Feb. 11, 1999, P. A1.
Henley v. Philip Morris, Inc., et al. 14.2 TOBACCO PRODS. LITIG. REPTR. 2.33 (lowering punitive damages and denying motion for JNOV).
Estate of Jesse D. Williams v. Philip Morris Inc., No.9705 03957(Ore. Cir., Multnomah Co.)
Restatement (Second) of Torts, § 402 A; see Thomas C. Galligan, Jr., A Primer on Cigarette Litigation Under the Restatement (Third) of Torts: Products Liability, 27 Sw. U. L.Rev. 487, 496 (1998) (hereinafter cited as «Galligan»).
Id.
Sylvia Hsieh, Apportionment of Damages Changed, Lawyers Weekly USA, June 14, 1999, at 1.
Galligan at 497
Restatement (Third) of Torts: Apportionment of Liability (1998).
Hsieh at 15
Id.
See Restatement (Third) of Torts. § 17
Tucker S. Player, After The Fall: The Cigarette Papers, The Global Settlement, And The Future of Tobacco Litigation, 49 S.C. L.Rev. 311, 332-33 (1998).
Id.
William Glaberson, «Some Plaintiffs Losing Out In Texas" War on Lawsuits.» The New York Times, June 7, 1999, p. A1.
Tex. Civ. Prac. & Rem.Code Ann. § 82.004(a) (Vernon 1997).
Cal Civ Code § 1714.45 (1987).
Cal. Stats 1997 ch 570.
Ohio Rev. Code 2307.76(B)
See Jones v. American Tobacco Co., et al., 13.3 TOBACCO PRODS. LITIG. REPTR. 2.174 (1998).
Tompkin, et al. v. American Brands, Inc., et al., Case No. 5:94cv1302 (D. OH).
Dewey et al., v. R.J. Reynolds Tobacco Co., et al. 121 NJ 69 (NJ Sup. Ct. 1990).
Dewey at 100 quoting from Huddell v. Levin, 537 F.2d 726, 736 (3rd Cir. 1976).