A federal appeals court was asked today to decide whether Congress intended health warnings on cigarette packs to bar lawsuits against tobacco companies for not providing fuller warnings about the risks of smoking.
The argument grew out of a lawsuit brought on behalf of the late Rose D. Cippolone, who was a heavy smoker, and her husband Antonio.
Two of the suit's eight causes of action allege that the defendant tobacco companies denied the public adequate information on the risks of smoking and used massive advertising, marketing and public-relations activities to neutralize and offset the government warnings.
The defendants are Liggett Group Inc., Philip Morris Inc. and Loew's Theatres Inc., successor to P. Lorillard Inc.
Law professor Paul M. Bator, testifying on behalf of the cigarette companies, said Congress never intended to allow "100 different juries in 50 different states" to force changes in the warnings by finding that they are inadequate.
Congress and the industry both wanted a uniform national standard, Bator told the Third U.S. Circuit Court of Appeals. "It is not open to a jury, or to a judge, or to this court to say Congress botched the job," Bator contended. "That is the heart of our case."
Bator, who is on the University of Chicago law faculty, was challenged by Cippolone's counsel, Marc Z. Edell of Morristown, N. J.
What the court decides on the issue could have a major impact on dozens of lawsuits that are part of a new wave of litigation seeking damages from smoking.
The legislative history of the warnings -- required by laws adopted in 1965, 969 and 1984 -- is barren of "an intent to protect the tobacco industry from product-liability lawsuits," Edell argued. Congress did want uniformity, but intended it to be subordinate to "the first purpose" of the laws, the provision of adequate health warnings, he contended.
He said the legislation contains neither an express nor an implied preemption of the right of smokers to seek damages in state courts on the ground that the manufacturers should have, but did not, warn of smoking hazards more strongly than the government warnings on cigarette packs and in advertisements.
Bator said that, if cigarette companies find they must "pay and pay" to dispose of smokers' suits, they will have to change the warnings, despite Congress's intention that they not be changed. Edell disagreed, saying government warnings and more disclosure could co-exist.
R. J. Reynolds Tobacco Co. has published ads calling for an "open debate" about smoking, Edell said. If cigarette makers can do that, they also can run ads giving more information about risks, he argued. And if such ads should be forbidden, nothing would stop the companies from using public-relations activities to accomplish the same purpose, he said.
U. S. District Court Judge H. Lee Sarokin, presiding over the Cippolone case in Newark, N. J., has handed down two related pretrial rulings that have been unfavorable to the industry, including the one argued today.
In one, Sarokin ruled that the First Amendment gives the public 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."
The tobacco companies that are defendants appealed, but no decision has been handed down. Meanwhile, Edell is forbidden to make public hundreds of thousands of pages of documents he obtained in lengthy pretrial discovery.
The other ruling, argued today, rejected cigarette makers' claims that Congress intended to immunize them from liability for wrongful conduct involving warnings beyond those required by Congress. "Had Congress wished to extinguish state causes of action, it clearly could have done so," he wrote.
More recently, a U.S. District judge in Knoxville, Tenn., ruled that injured smokers may not challenge the adequacy of the federal warnings. That case also is being appealed.