A Brief History of Tobacco Litigation

Editor: It’s important to understand a little bit of the history of tobacco litigation. The tobacco industry has been very effective at fending off legal challenges. The United States has been pivotal in initiating litigation against manufacturers; legal victories against the tobacco industry in the US have carved a model for public health lawyers.

It’s helpful to look at the history of tobacco litigation in three waves:

The first two waves are characterized by a highly successful scorched earth trial strategy, described by R. J. Reynolds’ attorney J. Michael Jordan:

“[T]he aggressive posture we have taken regarding depositions and discovery in general continues to make these cases extremely burdensome and expensive for plaintiffs’ lawyers, particularly sole practitioners. To paraphrase General Patton, the way we won these cases was not by spending all of [R.J. Reynolds’] money, but by making that other son of a bitch spend all of his.”

This exhaustion of plaintiff funds made it extremely hard to continue cases against the industry. Inside the courtroom, however, tobacco industry attorneys have framed the defense in different ways. In the first two “waves” of tobacco litigation, the industry shifted its tactics to deal with new research. In the third wave, it was the plaintiff’s turn to change strategies.

The First Wave 1954–1973: Individuals with lung cancer and their families seek money for the expense and suffering caused by tobacco products. The tobacco manufacturers deny that smoking directly causes lung cancer, citing scientific controversy. This also relieves them of the duty to warn customers of any connection between smoking and disease.

The Second Wave 1983–1992: Manufacturers now claim that tobacco’s health risks are common knowledge, and smokers should not have relied on manufacturer denials. This “assumption of risk” takes the liability off of manufacturers, and puts it squarely on smokers.

In 1992, Cipollone v. Liggett Group, Inc provides the first sign of anti-tobacco victory. Tobacco spends $50-70 million to counter the plaintiff’s $3 million. Ultimately, no money goes to the long deceased Rose Cipollone. However, the case is successful in releasing a small number of industry documents which will hint at potential avenues for success.

The Third Wave 1994-Present: Litigators build on the documentary evidence from prior cases, and focus on the conduct of tobacco manufacturers rather than the effects of tobacco smoking.

The development of contingency fees and class action claims make it possible to overcome tobacco’s scorched earth strategies.

The assumption of risk argument begins to be undermined. Evidence surfaces through unearthed industry documents that tobacco companies are aware of and even enhance the addictiveness of tobacco. Because tobacco companies target youth, this makes the industry at least in part responsible for health complications.

Combined, these new factors in the third wave introduce a new possibility for tobacco litigation plaintiffs: success.

While there were no plaintiff victories in the first and second wave, plaintiffs manage to win 37% of trial cases against Philip Morris from 1995-2005. Though Philip Morris pays out $102 million during this period, many plaintiff victories remain on appeal, and tobacco companies are certainly not slacking. Philip Morris and RJ Reynolds spend a combined half billion dollars a year on litigation between 2000 and 2004. Conducting litigation against such towering legal resources is daunting; fortunately, the evidence unearthed via tobacco litigation will make it easier for future plaintiffs to win.

Below is a chart summarizing the strategies that have been used by tobacco industry lawyers in personal injury cases where the plaintiff alleged that smoking caused their lung cancer. The most common arguments use “scientific denial” and the “plaintiff’s free will”, but used more than one defense in 85% of these cases.

Modified from Milberger, et al.¹