In the past year, two people I was close to have died of lung cancer. It goes without saying that these two were both cigarette smokers. They had bought their first Lucky Strike or Camel or Chesterfield as teen-agers in the 1940s. They had smoked thousands of cartons of dozens of brands -- two packs a day, three packs a day -- until they died.
One tried to quit 20 times. The other had quit, finally, in the hospital because he wasn't allowed to smoke around his oxygen tank.
I don't say this to disqualify myself from writing about smoking, but rather to qualify. As a survivor, I have to ask who is to blame for these two deaths, or for the 350,000 other Americans -- friends, uncles, parents -- who died of smoking-related diseases last year?
The daily newspaper, the medical establishment, even the cigarette packs these smokers opened, carried warnings about the lethal dangers of cigarettes. Some 45,000 studies documented the link between smoking and ill health. Weren't these consumers responsible for what they inhaled? Didn't they kill themselves?
What then about the tobacco industry? Year after year, the people who write for the Tobacco Institute go on rebutting the medical research, trying to convince us that cigarettes are not bad. The companies have spent $1.5 billion a year in advertising to entice Americans, especially young Americans, to smoke. Don't they bear any responsibility for manufacturing and marketing such a lethal product?
These questions of responsibility -- personal and corporate -- will be argued in the courtroom this spring by dying smokers and/or their survivors who are suing tobacco companies. Juries in Massachusetts, New Jersey, Texas, California, Minnesota and West Virginia will decide whether a person who lit his own cigarettes can turn around and collect payment from the company that made them. They will decide whether a manufacturer who denied any smoking risks, can turn around and claim that a customer smoked at his own risk.
The spring rash of cases is not a coincidence. It comes out of the current anti- smoking climate and out of recent changes in the liability law. In the last few years, courts have ruled that a product is unreasonably dangerous when the risks outweigh the benefits. Such a product, they have said, has to carry warnings, very explicit warnings.
"The courts had looked at DES, at asbestos. Why not go after the most dangerous drug of all? The law was all there, ready to be applied to cigarettes," says Richard Daynard, a professor at Northeastern University School of Law who started the Tobacco Products Liability Project, a group of doctors and lawyers working on the strategy for suing tobacco companies.
It is the conviction of these advocates that smokers are not fully to blame for their illnesses. Smoking isn't a free choice, but an addiction. The warnings carried on the cigarette packages vastly understate the dangers of smoking and ignore those of addiction. At the same time, the ads proffer countermessages of health and happiness.
The suit strategy is, Daynard maintains, the latest ammunition of frustrated public interest groups against the tobacco lobby. "We would prefer to have kept the epidemic from happening," says Daynard. "But this compensates the families. It produces a lot of very detailed publicity on just how bad cigarettes are. And, if the cost of litigation could raise the price of cigarettes to $3 or $4 a pack, it would reduce consumption in the next group of potential addicts."
These cases are not going to be easily won. Smoking is an addiction, but there are millions around who have kicked the habit. Few of us are comfortable regardin the smoker as a helpless victim of the weed.
The tobacco industry does, however, have a full measure of guilt for the epidemic of smoking diseases, for the $13 billion annual medical bill. In most states, consumers can recover some damages from the manufacturer of a dangerous product even when they were partially to blame for their own injury. At the very least, cigarette makers should share the cost of the damage.
Ideally, the threat of a suit might even force the tobacco industry to do something truly radical to stop denying the link between smoking and emphysema, lung cancer, heart disease. The least compensation owed to the survivors is the truth.