Each year, between 60,000 and 70,000 Americans sue manufacturers in a broad array of industries, alleging that they were injured by unreasonably dangerous products, including asbestos, drugs and medical devices, cars and tires, toxic chemicals and toys. Most of the plaintiffs settle. Of the small proportion who go to trial, more than half win damage awards -- multimillion-dollar sums, in a few cases.
By contrast, not one smoker who has sued a cigarette manufacturer has been paid a penny in damages.
Ironically, no consumer product carries a clearer warning of risk than do cigarettes. Surgeon General C. Everett Koop said last year, he and five of his predecessors rate cigarette smoking "the chief single avoidable cause of death in our society and the most important public health issue of our time." By the government's estimate, smoking kills 350,000 Americans annually -- more than died in Vietnam and both World Wars combined -- mainly with lung cancer, chronic obstructive lung ailments and heart disease.
But the tobacco industry has enjoyed "almost an imperial form of immunity" after defeating a small first wave of lawsuits litigated between 1950 and 1970, according to Donald W. Garner, a law professor at Southern Illinois University. In these suits, 10 smokers blamed cigarettes for lung cancer. Four gave up, 3 lost in pretrial proceedings, 2 lost in jury trials, and one was beaten after 2 jury trials, 6 appeals and 12 years of litigation.
Now, however, there is a second wave of suits, an estimated 30, including one set for trial on Sept. 23 in Knoxville, Tenn. The immunity is "not being worn away," Garner said in an interview. "It's being blown away." Two of the persons most responsible for this transformation are U.S. District Judge H. Lee Sarokin in Newark, N.J., and Garner himself, because of a highly influential law-review article he wrote five years ago.
Sarokin is presiding in a case brought by Rose Cipollone and her husband before she died of lung cancer last year. She began to smoke in 1942 when she was 16 and smoked more than a pack a day, most of the time, for 42 years thereafter.
The three defendant cigarette makers asked the judge to dismiss the case, and they had a seemingly powerful argument: Congress effectively had prevented sick and injured smokers from suing them by passing a law requiring this statement on every package, starting in 1966: "Caution: Cigarette smoking may be hazardous to your health." The statement was strengthened in 1970, as follows: "Warning: the Surgeon General has determined that cigarette smoking is dangerous to your health."
Indeed, Paul Rand Dixon, who had fought for the warning while chairman of the Federal Trade Commission, said at the time that it removed the companies from "any responsibility" in lawsuits. "If you use that product, you do so at your own risk," he said.
But in a major setback for the industry, Sarokin refused last September to dismiss the case. In an unprecedented ruling, he held that the law did not insulate the industry from product-liability lawsuits, and that the Cipollones were entitled to try to persuade a jury that the warning was inadequate. "Legal minimums will not supplant moral maximums," the judge said.
Moreover, he wrote, the plaintiffs could try to show that the industry had done its utmost to undercut the warning with massive advertising and promotion and with oft-repeated statements that scientific evidence was insufficient to incriminate smoking.
"Efforts to convince the public that the risks do not exist or that they are minimal or unsupported by medical and scientific data may, in and of themselves, give rise to a cause of action," Sarokin said.
An appeal by the defendants -- Liggett Group Inc., Philip Morris Inc. and Loew's Theatres Inc., successor to P. Lorillard Inc. -- is pending in the Third U.S. Circuit Court of Appeals.
Robert E. Northrip of Kansas City, Mo., Philip Morris' counsel in the case, said the basis of the appeal is that Congress prescribed what it "deemed to be an adequate warning. It's our position that the warning is adequate as a matter of law, and that any cause of action which is based on a claim that the warning is inadequate is preempted."
Then 11 days ago, Sarokin jolted the industry a second time, in a controversy over some 300,000 documents from cigarette industry files, numerous depositions and other materials obtained by Marc Z. Edell, the Cipollones' lawyer, in pretrial discovery.
The defendants asked Magistrate Robert E. Cowen, who presides over the discovery, to sign a secrecy order, saying that it would be wrong to release private materials whose existence and content became known only because of the litigation. His order paralleled rulings in other cigarette cases. Edell opposed the request, arguing in part that disclosure was in the public interest.
Cowen signed the order in March, only to be reversed by Sarokin. The First Amendment outweighed the defendants' right to privacy, the judge ruled July 17. "Under the First Amendment, the public has a right to know what the tobacco industry knew and knows about the risks of cigarette smoking and what it did or did not do with regard to that knowledge," he wrote.
"It would be difficult to envision a case involving a greater or more widespread interest," Sarokin said. "Other than food or water, there is probably no substance more utilized than tobacco. Its use affects hundreds of millions of people throughout the world . . . . " He went on to say:
"Plaintiffs contend that the discovery . . . reveals the knowledge of the tobacco industry regarding the effects of smoking, the efforts to enlist the aid of legislators and the medical profession to support the industry and mislead the public, and an alleged conspiracy of silence and chicanery within the industry itself. The court makes no finding at this juncture as to the validity of any of those charges, but it cannot be a party to their suppression if they are true."
Last Monday, the defendants told Sarokin they will appeal to the Third Circuit and asked for time to prepare the papers. "We're trying to get our act together," one defense attorney said. "We're hunkering down." Sarokin stayed his order for 20 days.
The judge's two rulings enhanced a growing perception that the industry is increasingly on the defensive in Western nations. Two years ago in Winnipeg, leaders of the Fifth World Conference on Smoking and Health portrayed the underdeveloped countries as the industry's "last frontier." Kurt Baumgardner, a Canadian who was the conference's secretary general, said at the time that the cigarette makers "have moved from middle-class males to women, to teen-agers. Now they have no place to go but the Third World."
In the United States, the industry also has been upset by a series of recent developments that have come atop such antismoking successes as bans on smoking in many public places. Most menacing are the lawsuits, although their final outcome is, of course, uncertain.
In the Knoxville case, Floyd Roysdon, who smoked a pack and a half daily for 38 years, suffered cardiovascular disease, lost a leg and is suing R. J. Reynolds for $50 million. His lawyer, J. D. Lee, argues that neither Roysdon nor another smoker-client, a double amputee, was warned that they could lose limbs. Lee has a third case, filed by a lung-cancer victim, set for trial Dec. 9. A Boston case also may go to trial this year. The Cipollone case probably will be tried in 1986.
In Texas, five law firms -- one each in Beaumont, Austin, and Marshall, and two in Houston -- have formed a cooperative legal venture called CigLit. Director William Townsley of Beaumont said its purpose is to make hitherto prohibitively costly and time-consuming cigarette cases "affordable and practical." Cig-Lit already has filed five, he told a reporter.
In Boston, a group of physicians and lawyers, aided by a $25,000 grant from the Rockefeller Family Fund, has formed the Tobacco Products Liability Project to further the filing of smoker lawsuits. If the tobacco industry had "to pay for the illness and injury it promotes," a pack of cigarettes would cost $3 or more, said Co-chairman Richard A. Daynard, a Northeastern University law professor. In 1980, the federal government paid an estimated $13 billion in smoking-related medical bills.
Sharing Daynard's view, Illinois State Sen. Bob Kustra, a Des Plaines Republican, has introduced a bill to let the state sue the industry for reimbursement of Medicaid payments to smokers who were disabled or killed by emphysema or lung cancer. The bill also would permit victims' families to sue for lost income and medical and funeral expenses.
Kustra said that other legislators, supported by "the heavy hand of the tobacco lobby," unsuccessfully attempted to kill the bill and that a hearing will be held. He called his approach "very conservative," because it seeks to spare the taxpayers from costs for which the industry is responsible.
Garner's involvement began in the 1970s when he was increasingly puzzled about why -- in a litigious society in which product-liability suits were proliferating -- none was being filed against cigarette manufacturers.
"It was as if smoking, the grossest case of product injury, had gone off the legal radar," he recalled. "I would get blank looks when I would talk about the cigarette cases."
To be sure, the 10 original plaintiffs and their lawyers were beset by handicaps. Some didn't have enough money to stay the course against what Sarokin called "the might and power of the tobacco industry and its ability to resist the individual claims asserted against it and its individual members." The state of medical knowledge was relatively primitive, particularly for diseases other than lung cancer; today, more than 45,000 studies claim to show links between smoking and numerous afflictions.
In addition, not until 1963 -- more than 13 years after the first suit was filed -- did the courts begin to lower barriers to successful product-liability litigation, particularly by defining a "defective" product as one that contains a danger not contemplated by the user. And not until a year after that did the surgeon general make the first report on smoking and health.
But Garner noticed something else: A product can be found to be defective if the manufacturer fails to provide appropriate warnings about its use. Yet for cigarettes, no one had developed a clear legal theory as to how and why they could be held to be defective.
"It occurred to me that the cigarette manufacturers ought to be held liable because they chose not to warn of a significant risk associated with their product," Garner said. The risk was addiction, and it was fundamental because a "hooked" smoker is the one most susceptible to disease, disability and premature death.
Five years ago this month, the Southern California Law Review published a lengthy article in which Garner laid out a wide array of evidence for the argument that smoking is rapidly addicting, or habituating, in a vast majority of smokers, that few smokers can satisfy their addiction with fewer than 10 to 12 cigarettes a day, that addiction occurs most often in those least likely to know of the risks -- children and youths -- and that neither the warning on the package nor the manufacturers said anything about addiction.
"A theory of recovery based upon the manufacturer's failure to warn of addiction fits well within the present dimensions of products liability law," Garner concluded.
In 1983, Dr. William Pollin, director of the National Institute of Drug Abuse, told Congress that cigarette smoking "is the most widespread example of drug dependence in this country." He contends that tobacco is more addictive than heroin or alcohol. Last year, Congress passed a law to require three new rotating warnings on cigarette packages starting in October. The House Energy and Commerce environment subcommittee had approved a warning saying that cigarette smoking "is addictive and may result in death." The industry strenuously opposed the addiction warning, and it died in the full committee.
An industry leader told the subcommittee, "Certainly the statement that smoking is addictive is contradicted by the 1964 surgeon general's report and the conclusions reached by many experts since 1964."
Moreover, Edward A. Horrigan Jr., chairman and chief executive officer of R. J. Reynolds, testified, "All of the statements that are presented as established fact in this [rotating-warnings] bill have been challenged by the research findings of many eminent scientists . . . "