For the first time in more than 300 cases since 1954, a tobacco company has lost a damage claim in court in a suit charging that smoking had caused death or disabling illness. A federal court jury in Newark awarded the husband of a longtime smoker $400,000 damages for the loss he suffered in his wife`s 1984 death from lung cancer.
But Monday`s verdict by the six-member jury stopped a long way short of providing the clear path for a successful assault on the tobacco industry that antismoking groups and plaintiff lawyers in the 100-odd cases pending around the country had hoped would emerge from the suit.
Instead, the jury`s finding was narrowly limited. And coming off five days of deliberations, it had the feel of a misguided and irrational compromise. At least some jurors, apparently moved by his emotional testimony, obviously thought Antonio Cipollone deserved compensation for any contribution the Liggett Group`s cigarette products made to the loss of his wife. But the jury clearly was convinced that Rose Cipollone hastened her own death by smoking even while knowing it could be harmful to her health.
Given the jury`s position on responsibility, it is hard to understand its award to Mr. Cipollone on the finding that before warning labels went on packs in 1966 Liggett had failed to live up to the express warranty of its advertising by proclaiming, for instance, that L&Ms were ”Just What the Doctor Ordered.” Even then, he was given no punitive damages. And no damages at all were awarded to his wife`s estate. She was judged to have been 80 percent to blame for her own fate. Under the New Jersey law used in the suit, she would not have been entitled to damages unless Liggett were held at least 50 percent responsible.
Two other tobacco companies that manufactured brands smoked by Mrs. Cipollone after 1966 were exonerated, as was Liggett, of charges that they had fraudulently misrepresented the dangers of smoking and had conspired to conceal them. A spokesman for Liggett, which has announced it will appeal, called the verdict ”a major victory.”
Although it was hailed as a breakthrough by those seeking to hold the tobacco industry responsible for smoking-related deaths and disabilities, the decision had to be disappointing to many who thought they had a chance of making the conspiracy case.
The urge to punish someone for what most medical experts believe is the awesome toll connected with smoking is understandable. The Newark jurors have wrongly succumbed to that urge, even while reaffirming in their broader findings, as have so many others in the past, that in this free society our peers expect a reasonably informed individual to accept the ultimate responsibility of a free, even if unwise, choice. If it were otherwise, Congress would be morally bound to protect us from our smoking selves. And if we really wanted such protection and the good members failed us, we`d have to sack the lot of them.
