Tobacco Documents Online

Burson,M,.rsteller Position Paper Personal Responsibility and Liability Third Draft 5/10188 SMOKING: A QUESTION OF FREE CHOICE AND PERSONAL RESPONSIBILITY It is a question fundamental to the American system of rights and justice: where does the responsibility of a company, or society at large, end and individual responsibility begin? More specifically, should we allow a person who makes a free and informed lifestyle choice to engage in an activity involving well-known risks to shift responsibility to others for the possible adverse consequences of his decision? The question is frequently framed in the context of product liability lawsuits and is epitomized in the cases brought by smokers or their families against cigarette manufacturers. No one is required to smoke. Everyone has heard of the possible health consequences of smoking. Indeed, a close neighbor of a smoker involved in one lawsuit testified that "you would have to live in a cave" to avoid hearing claims of health risks associated with smoking. And in the face of the ubiquitous warnings, millions of Americans have decided to quit. Millions more have chosen to continue.

-2- Who should bear the responsibility for an illness that someone claims resulted from smoking? The company that made the product available or the consumer who made the free and informed choice to buy it and use it? Repeatedly, and for more than three decades, jurors have come down on the side of free choice and personal responsibility. They. have agreed that, in a free society, an individual who chooses to smoke should bear the responsibility for that decision. Adult citizens, living amidst widespread publicity about the asserted risks of smoking have the freedom to choose. Having chosen, they should not seek to hold others accountable for what they think are the consequences of that choice. Informed Choice No consumer product marketed during this century has been surrounded by more information regarding its potential health hazards than cigarettes. In fact, claims of health risks associated with smoking date back more than 400 years when, in 1604, England's King James I issued his Counterblaste to Tobacco, denouncing smoking as "a custom loathesome to the eye, hateful to the nose, harmful to the brain, dangerous to the lungs . . ." In the United States, health claims regarding cigarettes have been spread through every conceivable medium including radio, television, movies, newspapers, magazines, books, pamphlets, and brochures, as well as through advice from physicians, teachers, coaches, parents and others. Smoking and health issues have been part of health education courses in virtually every state since the early 1900s and the subject of a wide variety of programs conducted by various educational, religious, social, medical, political and other groups.

-3- During the past thirty years, the publicity attending claims of chronic disease hazards said to be associated with cigarette smoking has intensified. For example, there was widespread publicity concerning the publication of the 1964 Report of the Advisory Committee to the Surgeon General, and subsequent, similar reports about smoking. In addition, for more than 20 years smokers have been constantly informed of the health risks attributed to smoking through the fede~ally required warnings on cigarette packages and, beginning in the early 1970s, in cigarette advertising. Despite this widespread publicity, smoking has remained an accepted social convention. Like butter, eggs, coffee and alcohol, cigarettes are consumed by millions of Americans who are fully aware of the highly publicized claims that use of the product exposes them to claimed risks of chronic disease or death. And, as with other modifiable lifestyle choices, cigarette smoking presents decisions which each individual must make and constantly reevaluate. Fortunately, free choice and personal responsibility have become enshrined as fundamental tenets of American jurisprudence. Were this not the case, the bewildering maze of civil damage suits already clogging the courts would be a mere foretaste of the confusion to come -- dairy manufacturers and cattle ranchers sued by heart attack victims who consumed their cholesterol. Public Sentiment In one survey after another, the American public has reaffirmed its commitment to the principle that ours is a society in which individuals should have the freedom to make

-4- personal lifestyle choices and the responsibility to live with their decisions. For example, a recent Louis Harris survey showed that 76 percent of the American public believe that people who voluntarily take risks, such as smoking or not wearing seat belts, should be prepared to accept the consequences. Similarly, a poll among lawyers by the ABA Journal found that 72 percent of those surveyed believe that any consequences of smoking should be borne by smokers, not by tobacco companies. Despite these expressions of public sentiment, tobacco cases have reemerged in the courtroom as part of the recent explosion of products liability litigation. These cases are brought by attorneys who apparently have not grasped the fundamental principle that the American public clearly understands: among a free and well-informed people, individuals must assume personal responsibility for lifestyle choices made in light of known risks, and that uesponsibility should not be passed to others. Fro~.Negligence To Liability And Beyond Until recently, a plaintiff in a product liability action could not recover damages unless he demonstrated that the manufacturer had engaged in some culpable conduct. Usually, this was accomplished by showing that the manufacturer was negligent in designing or manufacturing its product and that such negligence caused harm to the plaintiff. In the early 1960s, the focus in products liability cases shifted from the conduct of the manufacturer to the product itself. Under a doctrine known as "strict liability," a plaintiff who was unable to pcove negligence on the part of

-5- the manufacturer could still recover damages as long as he could show that his injuries were caused by a product that was "defective." This concept has come to be known as "liability without fault." The legal scholars who formulated the strict liability doctrine did not, however, abandon the concept of informed choice. To the contrary, they recognized that the new standard should apply only where the defective condition of a p~oduct renders it more dangerous than would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Moreover, these scholars singled out tobacco as a classic example of a product whose claimed risks are so well known that they simply cannot be considered unreasonably dangerous. The limitations which have been grafted onto the strict liability doctrine reflect the common-sense principle that a manufacturer is not an insurer for all harm which may befall users of its products. Imposition of insurer's liability would lead to a flood of products liability litigation that would overwhelm the judicial system. Millions of Americans suffer from illnesses which potential plaintiffs would seek to tie to the consumption of such consumer products as alcohol, coffee, eggs, diet drinks, high-cholesterol foods, and salt, the alleged dangers of which -- like the claimed risks of cigarette smoking -- have long been "part of the common knowledge of the community." No one would profit from such mischief, except, perhaps, plaintiffs' lawyers.

-6- The Litigious Society There are lawyers in our judicial system who are apparently of the view that consumers should bear no responsibility for using or consuming any product -- that manufacturers are always liable, whatever the circumstances. There was, for instance, the lawyer who represented a woman who attempted suicide by gassing herself in her garage. Failing, she sued Ford Motor Company because the engine stalled, causing her to spend two days locked in the trunk. Unfortunately, such abuses of the judicial system are not uncommon. Between 1974 and 1985, product liability cases jumped 758 percent, according to a U.S. Justice Department report, with average damage awards increasing by 15 percent per year. The resulting increased costs of insurance, particularly for such products as vaccines, aircraft, sports equipment and swimming pools, has driven up retail prices substantially and forced many manufacturers entirely out of business. If the courts force producers to unequivocally accept an individual's risk taking, the result may be the end of our private economic system as we know it -- with producers forced to multiply tenfold the price of their products or move to an underground economy. Reasonable citizens accept the fact that individuals must be free to decide whether or not to smoke. The issue is not a moral question of whether that decision is right or wrong, smart or foolish. It is an issue of recognizing the implications of having made an informed free choice. And having recognized freedom of choice, individuals must also recognize that there is a concomitant obligation to accept the potential consequences of the choices made.