No Recovery, You Owe Us Nothing
For those who fight the tobacco industry, the recent $23.6 billion punitive damages jury verdict in a case tried in Pensacola against R.J. Reynolds was not astonishing. It reflects moral outrage after details about the tobacco industry’s dark past, and present, were disclosed.
Public knowledge of the health risks of smoking has changed dramatically in the last half century, due in large part to the dogged efforts of public health officials to overcome the industry’s power to lie. But the public is still seriously misinformed about the monstrous things the tobacco industry did during those fifty years to protect its profitability. When people learn those things, as they do in smoking and health trials, they are understandably outraged.
The best source of that information is the industry’s own words contained in previously secret documents that the cigarette makers were required to disgorge in the late 1990’s. When we explore those records in lawsuits against the industry, we consistently find how much people truly did not know. While people might suspect that the industry markets to young people, they rarely know the depths to which the industry has targeted (and let’s use the right word) children. Kids, to paraphrase R.J. Reynolds, are the only reliable source of “replacement smokers,” to replace those who quit or die.
While people might have heard that the industry “does things” to cigarettes, they have not seen the source materials that reflect the zeal with which the industry sought to potentiate the effects of nicotine and make it even harder for smokers to quit. Without nicotine, in the right amount, and absorbed the right way in the brain, people do not smoke. But the industry publicly denied that nicotine is addictive until 1999 or 2000, while privately referring to itself as a purveyor of a “drug” or “pharmaceutical.”
Jurors are unlikely–until the story is told to them–to appreciate the cynicism of the cigarette business. Company records liken customers to lab rats, conditioned through addiction to press a lever for the reward of nicotine. Even now the industry pretends that nicotine is just something natural in a plant. Nicotine in cigarettes is totally dependent on manufacturing specifications designed to perpetuate addiction. Cigarette makers have long known how to remove it. They choose not to.
The industry’s own words reveal plans to create false doubt about the health hazards of cigarettes, bribe respected scientists with lucrative research grants, suppress the truth, and support fake science to challenge the idea that cigarettes cause disease. Not so long ago published reports related lung cancer to everything from rain to viruses, baldness, and even being born in March. The industry did that.
In Florida’s Engle litigation, the plaintiffs are people who got sick or died in the 1990’s. Virtually all of them became addicted long before the first caution labels appeared in 1966. Honest critiques of this litigation should be tempered with an understanding of the environment faced by people who started smoking in the 1930s, 40s, 50s or 60s. Smoking is marginalized in many quarters today; not so back when two-thirds of men smoked, and one-half of women.
Alas, the industry hasn’t changed. According to the Surgeon General, 3,800 American kids smoke their first cigarette each day; 1,000 of them become regular smokers every day. The addiction cycle, followed by well-known patterns of disease and death, will haunt staggering numbers in the current generation of “replacement smokers.” Cigarettes are, according to the Surgeon General, still “designed for addiction.” Recent studies confirm that the cigarette of today, with all its supposed design changes touted by industry, is just as deadly and addictive, if not more so.
It is not hard to think about the role that punitive damages play in cases like the one in Pensacola. When a smoker dies, the death does not merely result from recklessness, greed, or arrogance. It is also a death that depends on a lifetime of doing exactly what cigarette makers wanted: early smoking initiation (in childhood); addiction to a highly addictive drug; and maintenance of addiction causing repeated exposure to the thousands of toxins in cigarette smoke.
Cigarette smokers are not blameless. Lawyers know that people who bring lawsuits must speak to their own personal responsibility. But that personal responsibility does not extend to the other 480,000 Americans who die annually from doing exactly what the industry wants, while imposing nearly $400 billion in costs on our economy.
People are justifiably outraged when they learn the truth. The Pensacola verdict proves it.
David Sales, of David J. Sales, P.A., is based in Jupiter and Jimmy Gustafson, of Searcy Denney Scarola Barnhart & Shipley, P.A, is based in Tallahassee.