THE JUDGMENT Wednesday by a jury in Florida in a huge class-action lawsuit that the tobacco industry is liable for smoking-related illnesses is a dramatic reminder that the tobacco wars are far from over. The jury, after months of testimony, concluded that the cigarette makers had engaged in "outrageous conduct" by hiding the health consequences of smoking. If their decision is upheld on appeal, it will likely mean the industry will have to pay sizable damages.
This is, of course, a big if. The courts have not generally been friendly to tobacco class actions, deeming the class of smokers too broad and diverse to be encompassed within a single piece of litigation. Moreover, the practical consequences of affirming this case would be a major logistical logjam: While the jury has ruled on the matters that the class has in common, the tens of thousands of class members will each have to have their damages assessed separately.
Still, there is some reason to be optimistic that the class will not ultimately be decertified. Before the case went to trial, the Florida court of appeals approved the class, and the state supreme court refused to hear the matter. While it could reconsider that decision now that the jury has ruled, it is not as though the issue is novel.
The verdict also points to the absurdity of the current move in the Senate to block funding for a Justice Department suit against the industry. Sen. Judd Gregg (R-N.H.), chairman of an appropriations subcommittee, is trying to cut off $20 million in funds the department requested for the action. Senate language may also suggest that other money may not be used.
But even if this verdict is ultimately reversed, it shows that the industry is vulnerable in court to strong presentations of the fraud it long perpetrated on Americans. That means it's not out of the woods either for other individual actions for damages or for a suit from the federal government. To forbid the Justice Department even to try to recover Medicare money spent by American taxpayers as a result of industry behavior would be to ask the public at large, rather than the industry and its shareholders, to pay for smoking-related medical costs -- a kind of tax on the industry's behalf. The judgment in Florida suggests there is another way.