Tobacco Documents Online

Split Verdict/Small Reward Op-ed B First Draft June 2, 1988 A PYRRHIC VICTORY Everybody wants something from the nation's tobacco companies. Smokers who contract cancer want payment for the choice they made to smoke. Lawyers encourage them. They want their contingent fees for clogging the courts with their liability cases. The anti-tobacco lobbyists want their faces on the evening news. So who is going to stand up for the issue of free choice? Clearly the last reso,rt is the courts and public common sense. Since the first such action in 1954', more than 300 product liability suits have been filed against tobacco companies. Until this week's verdict in the case of Rose Cipollone in Newark, 15 had gone to trial, and not one resulted in a judgment against a tobacco company. Indeed, to date, no tobacco company has ever paid one penny in damages or as a settlement to a plaintiff in a product liability action. If the appellate courts remain bastions of common sense over emotion, this will continue to be the case as the tobacco companies pursue their right of appeal -- a right they will exercise until they win.

-2- But there is one aspect of this verdict the six plaintiff law firms that represent the vast majority of tobacco liability suits could not have missed: they didn't really win. The Cipollone attorneys invested about $3 million in time and money to bring this case to court. The award of $ is anything but a return on that investment. And because (the tobacco companies/company) are confident that the verdict will be overturned on appeal, even that sum. is in question. Thils is by no means an indictment of the jury verdict in the Cipollone case. The nature of the court's actions from the start of the case, the restrictions on the nature of charges and the rulings on evidence imposed from the bench left the jury with only the narrowest possible grounds on which to render a decision:. We are confident that had the jury been able to see the forest for the trees, it would have concluded, as has every jury hero.re it, that tobacco liability suits are by their very nature abuses of our judicial process. In the broadest terms, jurors who have been allowed to consider the full range of issues have unfailingly concluded that smokers, as is the case of those who eat red meat or drink milk high in cholesterol, have made a free choice. We live in a society of risk. It is dangerous to cross the street in heavy traffic, dangerous to consume quantities of wine or spirits, dangerous at times to jog in the park. Each of us makes personal choices that the rewards of our actions outweigh any of the risks. Ours is a society of free choice.

-3- We do. insist on being informed about the risks. And it is clear that anyone living in 20th century America has been informed of the claimed risks of smoking. Certainly, Rose Cipollone was informed. Testimony in her trial established that she read widely, that she was shown articles by her husband, indeed, changed her brands as new information reached her. The suggestion has been made that Rose Cipollone could not quilt -- that as the Surgeon General of the United States proclaimed this month., cigarette smoking is addictive. Yet he freely admits in his report that this conclusion is based on no new scientific evidence. So we return to the basic issue of Rose Cipollone -- an individual who made a free choice, freely arrived at that she enjoyed smoking. Now, attorneys like Marc Edell come along with the claims that the tobacco companies should pay for this choice, just as dairy farmers and meat producers should pay heart attack victims who consume cholesterol. Where will such lawsuits end? When. can the courts be allowed to return to the real business of dispensing Justice for which they were established? Hopefully after the appellate court has had an opportunity to review the record in the case of Rose Cipollone and after contingent-fee attorneys realize they are looking in the wrong place for their pot of gold.

Families like those o.f the Cipollones should not be preyed upon by contingent-fee lawyers who dangle promises of untol, d riches from sympathetic juries as compensation for years of tedious judicial procedures. Such lawyers and their clients should not burden the American system of justice. It's time we returned a sense of perspective and balance to. world of liability law. The truly aggrieved and injured should have their day in court. But for the rest, the feed trough should be sealed forever. ###~