Another Round of Tobacco Litigation

Published October 14, 2006

I’m in the class of all U.S. “light” cigarette smokers–estimated at some 40 million Americans–certified on September 25 by Judge Jack Weinstein in federal district court in New York City in the class-action lawsuit against eight tobacco companies.

The named plaintiffs allege they and the rest of us unnamed smokers were duped by widespread tobacco company advertising into believing “light” cigarettes were healthier for us than regular ones. Smokers wouldn’t have bought them–or wouldn’t have paid the full price for them–if they had not been duped, or so the plaintiffs allege.

The suit is over the alleged economic losses suffered by smokers who allegedly overpaid for an “inferior” product. Medical and health costs are irrelevant to and not recoverable in this case.

Tobacco companies apparently knew smokers who chose “light” cigarettes smoked more of them, puffed more frequently, and held them in a way to cover the vents in the filter, all of which led to “light” cigarettes being no safer than regular cigarettes. It’s not clear tobacco companies ought to be held responsible for how customers change their habits in response to what would otherwise be safer products. And never mind that the Federal Trade Commission, charged with policing deceptive business practices, had authorized the use of the term “light.”

I started smoking a brand of “light” cigarettes made by one of the defendants because I like their taste. I’m obviously stupid to smoke, but not stupid enough not to notice the prominent Surgeon General’s warning on cigarette packages–even on light cigarette packages–about the health risks of smoking. The plaintiffs allege, though, and the judge endorsed, the theory that smokers–including me–were deceived by the avalanche of light cigarette advertising because many or most of us lack “sophistication” on health matters.

The problem, though, is that I honestly can’t remember thinking, “Wow, I think I’ll run off and get me some of those smaller coffin nails”–or words even remotely to that effect And the slang term “coffin nails” may not be sophisticated, but its use by me and other “unsophisticated” smokers does demonstrate that we got the point about health risks. And this illustrates quite vividly one of the many reasons why Judge Weinstein’s decision was wrong.

The case was brought under the Racketeer Influenced and Corrupt Organizations Act–a/k/a RICO–and seeks to recover billions of dollars in damages on behalf of all of us allegedly duped “light” cigarette smokers. To succeed, this RICO case will require proof that all “light” cigarette smokers suffered economic losses “by reason of” the defendants’ fraud–in other words, that we relied on the health advertising in making our decision to purchase “lights.”

But class action litigation is warranted only when there is a common question of law or fact. Thus, the plaintiffs had no choice but to allege that all light cigarette smokers were financially duped by alleged health misrepresentations. But I was not duped, and I am not alone … and even the plaintiffs–and the judge–recognize this.

Judge Weinstein got around this fatal flaw by buying into two of the named plaintiffs’ arguments. First, he endorsed the theory that smokers like me who claim they were not influenced by health representations and who claim they just prefer the taste of light cigarettes were actually victims of mass hypnosis induced by mass advertising–or some sort of subliminal influence like that. The actual quote from Judge Weinstein is that “some smokers’ preference for the taste of ‘light’ cigarettes was actually ‘an additional health reassurance reinforcement.'”

Second, the judge said that “evidence” of the influence of tobacco company advertising could be provided to the jury through data as to all “light” cigarette smokers extrapolated from surveys of a small number of them. These statistics would be admissible before the jury, he wrote, even though he conceded they amount to “somewhat dubious arguments and questionable proofs.”

The overarching principle, the judge wrote, is that there should be a remedy for all wrongs. It would be too cumbersome, he wrote, to litigate individually the claims of each of the “tens of millions” of “light” cigarette smokers, and the money involved per individual litigant is too small to warrant it. For these reasons, he wrote, the class must be certified, and the jury could and must act as “the ultimate focus group of the law.”

And, as to the thorny issue of to damages, in seeming contradiction of his theory that it would be too cumbersome to litigate all of the separate liability cases, he opined that “light” cigarette smokers’ economic damages claims could be litigated individually–all of the tens of millions of them–with testimony as to how long we smoked “lights,” how much we paid per pack, and so on and so forth.

So this is what Judge Weinstein has wrought: Months of trial by a jury acting as a focus group on liability, followed by millions of individual trials on economic damages. We may as well revert to trial by ordeal, tossing the tobacco companies into a pond with millstones around their figurative necks. If they sink, the verdict is “guilty.”

Maureen Martin ([email protected]) is senior fellow for legal affairs at The Heartland Institute and managing editor of Lawsuit Abuse Fortnightly.