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It’s just not fair!
Okay, let’s deep six this one right from the get-go. Philip Morris isn’t some poor slob mom-and-pop outfit struggling to stay afloat. They have significant assets, and can hire the best legal representation. I met their attorneys at the time of trial, and now I work for some of them, and they are advocates of the highest standards of professionalism and legal acumen. Philip Morris got its day in court.
Everybody knows tobacco is bad for you
Yeah, and why is that? Certainly not because the tobacco companies were getting the word out. For nearly 60 years, they had a free run in our society, mass-producing cigarettes and marketing them to the general public with every gimmick in the book. Cigarettes are a deadly, addictive product, but that has most definitely not been general public knowledge during most of the time that tobacco companies have been hawking cigarettes.
What about personal responsibility?
This is the crux of the tobacco companies’ argument. Now. But back in the early 1960s, they acknowledged quite freely (privately, amongst themselves, and decidedly not for public knowledge) that personal responsibility for an addict was a fiction. Now, they would like the public to believe that every carton purchased, every package opened, every cigarette tapped out of pack and lit up is an individual, conscious, chosen action.
It’s nonsense, and the tobacco companies know this. Among themselves, they talked about the addictive qualities of nicotine, and the idea that a smoker was personally responsible once he or she was addicted was no longer part of the equation. So they denied that nicotine was addictive for decades. In fact, as late as 1994, the chief executives of every tobacco company appeared before Congress and each and every one of them declared that nicotine was not addictive. The dodge was that they personally didn’t believe nicotine was addictive. Within one year of that testimony every one of those executives had resigned their positions, placing themselves out of reach of contempt and perjury charges.
The tobacco companies knew that an addicted smoker no longer had the element of “choice” in regard to smoking. Yet their program since the mid-1990s has been to appropriate the language of “choice” and “personal responsibility” as if it was present in the decision to smoke once the addiction is formed. Tobacco companies are well aware of the power of addiction, and they know that only a little encouragement is sufficient to keep a smoker smoking. So for decades they ginned up fake controversies about health effects, addiction, marketing, and their own public relations, knowing that smokers would use this as a crutch (and the tobacco companies used that very word – among themselves) to support their addiction.
So, if an addicted smoker is truly to be held personally responsible, what responsibility should inure to the company that creates, aids, and supports that addiction? In case you didn’t know, the smoker in this case was found to be comparatively negligent for his own injury, and the amount of damages was reduced by that percentage. I’ll donate ten bucks to DU if anyone advocating the personal responsibility angle can tell me in the next 24 hours what percentage that was.
I can’t wait to sue for cavities from pop or getting fat from junk food
Good luck with that. Cigarettes are a special case, the tobacco companies having written their own federal exemption from regulation back in the late 1960s when they agreed to terminate advertising from television and radio. That means that they are out of reach of the usual product liability law, because there are no standards for a “safe” cigarette. As with everything connected with the manufacture of cigarettes, this didn’t happen by accident.
The cause of action in this case wasn’t because cigarettes are a deadly, addictive product. The legal theory was that the tobacco companies knew this, counted on it, and yet publicly generated a fake controversy about it. The cause of action was fraud. Soda pop and junk food companies do not publicly deny that their products can lead to tooth decay or obesity.
In order to prevail on an allegation of fraud, several factors must be present. If any of these factors isn’t present, then there has been no fraud. First, the tobacco companies made false claims that nicotine wasn’t addictive, which is the first element of fraud. Second, they knew their claim was false, as shown by their own internal company memoranda. Third, they made the false claim with the intent that the public rely on it. Fourth, significant segments of the public (addicted smokers) did indeed believe their false claims. Fifth, in relying on those false claims, the same segments of the public sustained harm, in this case, serious damage to their health, up to and including death.
But those damages are just out of line!
Certainly Philip Morris thought so, and argued that all the way up to the U.S. Supreme Court. Three times. The appellate courts finally decided that due to the extreme reprehensibility of Philip Morris’ actions, a willful campaign of public deception and disinformation that lasted for decades, extreme punishment was warranted. Additionally, the damage done to the smoker (death) was an aggravating factor. The ratio between compensatory and punitive damages was artificially inflated due to the personal circumstances of the decedent. If the decedent had been a 45-year-old heart surgeon, the compensatory losses for future earnings and so forth would have been significantly higher, and the ratio concomitantly lower.
This will raise the price of cigarettes, and be another tax on the poor!
Pardon my French, but bullshit. $79.5 million represents less than two weeks’ worth of earnings for Philip Morris. The rough equivalent would be a $1,200 award against a person making $50,000 a year – a minor hardship at best.
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