Paul Monzione, armed with charm and the "thin skull doctrine," is about to take on the tobacco industry in a case with huge stakes and intriguing wrinkles. Monzione, 28, is a lawyer who works with Melvin Belli, who fancies himself "the King of Torts." Belli certainly is a pioneer in product liability law, and for years has been trying to get cigarette companies found liable for willful misconduct in manufacturing an inherently unsafe product.
Belli solicited the case on which Monzione is working. Soliciting cases is illegal unless done pro bono publico, so Belli's firm, if successful, will give its one-third of the settlement to cancer research. Belli got the case after asking, in a speech to people who work in hospices for the terminal ill, if anyone knew of a person suffering from squamous cell carcinoma at the juncture of the bronchus, a cancer especially associated with smoking. Belli was told about John Galbraith.
Galbraith was a smoker. And how. Before he died several years ago of congestive heart failure brought on by severe emphysema and cancer, he was on bottled oxygen 24 hours a day -- and he would still remove the oxygen mask and sneak a cigarette. Belli and Monzione will ask a jury to find several cigarette companies liable for Galbraith's death because the companies "expressly and impliedly warranted" that cigarettes are fit for human consumption.
The companies must argue, brazenly but carefully, that the "controversy" about smoking is universally known, yet absolutely nothing is known that connects smoking with cancer. Monzione must argue, artfully, that the connection between smoking and certain kinds of cancer is common knowledge, but that Galbraith, being addicted, had lost his capacity to act rationally in response to the knowl- edge.
The companies will dispute the medical evidence and conceivably could establish that Galbraith did not actually have squamous cell carcinoma. If Galbraith did have that cancer, the companies will argue that Galbraith lived in the Los Angeles basin, and breathing the air there, not smoking two to three packs a day, caused his cancer.
(One cigarette company is currently running advertisements acknowledging that smoking is "controversial." Such advertisements cleverly suggest both that agnosticism is rational and that customers have been amply warned to be wary.)
The companies' more interesting argument will be that Galbraith, who had a master's degree, was well-read (a rash assumption about holders of master's degrees), so he knew the "controversy" about cigarettes and freely asame. American fell to 9-9, 2-5.
Virginia Union 75, Bowie State 37: Sysumed the risk -- if there is a risk. Besides, the companies will ask, what about the fact that millions of smokers do quit? Monzione will argue that Galbraith was incapable of quitting and hence the companies are liable under the "thin skull doctrine."
That doctrine says that if you accidentally strike a person on the head, striking a blow too light to injure most persons but a blow that injures the struck person because he has an unusually thin skull, you are liable. You are liable because the law says you must take the plaintiff as you find him. It is not his fault his skull is thin.
Galbraith's "thin skull" was, supposedly, his personality. Monzione will present a psychological portrait of Galbraith as an addictive personality who, as a convert to Mormonism, was driven to irrationality by guilt about his inability to quit smoking.
Product liability law has come a long way from caveat emptor -- let the buyer beware. That doctrine severely limited manufacturers' liabilities in the days when courts thought expanded liability would jeopardize American industrialism.
What is bothersome about some of today's product liability cases is less that they broaden manufacturers' liability than that they seem to deny the individual's responsibility for his behavior. Indeed, when Belli lost a cigarette case in Louisiana, the judge suggested that if Belli had won he would have soon wanted Elsie the Cow held liable for heart disease caused by cholesterol.
But in the current case, Belli and Monzione are emphasizing addiction, understood as a chemical dependency suffered by persons who know it is injuring them. Monzione wants smokers on the jury because they, as authors of countless New Year's resolutions to quit smoking, understand addiction.
This case is coming to trial just as a queasy Congress is gingerly coming to grips with the new budget, which proposes an end to tobacco programs. Those programs subsidize production of a substance that goes into the product that has Monzione seeking huge punitive sums to deter companies from causing "a growing epidemic of death and loathesome illness." But, then, Congress is addicted to such programs.