Tobacco Documents Online

• • that the company's "admission," particularly over time, will actually strengthen its legal defense, and reduce the risk of large-scale punitive damage awards in individual smoker cases. DETAILS: Failure to appreciate the axis of argument. Individual smoking and health claims are simply not litigated on the basis of whether or not cigarette smoking causes cancer (general causation), or whether cigarette smoking is addictive. As Senator Orin Hatch recently indicated on the floor of the senate "everybody not on Mars for the past few decades has known that using tobacco can be harmful." In fact, the U.S. Surgeon general in 1964 and 1988 indicated that cigarette smoking causes lung cancer and is addictive, respectively. Despite these determinations, and growing scientific knowledge, the industry has maintained an outstanding defense record. Plaintiff attorneys are disappointed by Philip Morris's actions. The few plaintiff attorneys who are interested in pursuing individual smoker claims have been disappointed by the tobacco industry's evolution towards a more mainstream position on smoking and health issues. They feel that the industry's careful transition undercuts many of their arguments. The Surgeon General's statements did not impact tobacco litigation, and in our opinion, neither will Philip Morris's revised position. Tobacco cases are simply not won or lost on the basis of the jury's belief of whether smoking is addictive, or whether cigarette smoking can cause disease. Rather, the industry's defense is largely based on common knowledge, assumption of the risk, and freedom of choice. Secondarily, in certain instances, given the multi- factorial nature of smoking related diseases, the tobacco industry will argue specific causation -- e.g., although cigarette smoking causes disease, it did not cause this individual's disease. Rather, the plaintiffs lung cancer was caused by exposure to asbestos, radon, talc, or hereditary factors. With respect to addiction, although certain smokers find it very difficult to quit smoking, the industry effectively argues that the overwhelming majority of smokers who make a serious effort to quit smoking are successful in doing so. And in fact, most juries contain several ex-smokers. Leaving the "flat earth" society should moderate juror anger. In our opinion, a key factor in the juries' willingness to punish Philip Morris in the Henley and Williams-Branch cases was the company's denial of general causation (e.g., that cigarette smoking is only a "risk factor" for disease). The company's revised position, in our opinion, will be viewed as far more reasonable, and will likely help moderate potential juror anger. Note that the company's admission should be particularly effective in countering N the allegation that the company has "manufactured controversy" as to the ~ health effects of smoking, and that it was not forthcoming and honest in ~ • revealing what it knew regarding the risks associated with smoking. ..i N h Time remains the industry's friend in the litigation. Due to the ~ industry's aggressive defense tactics, the preemptive effect of the federally