Smoke signals

Print edition : August 28, 1999

THROUGH most of the 1990s, proceedings in tobacco-related cases in United States' courts followed a set pattern: the plaintiff, usually an individual or a social service organisation, took on the might of the tobacco industry, citing what often seemed da mning medical evidence of harm done to smokers or to those forced to work in a smoke-laden environment.

After weeks of arguments and a procession of experts presented by both sides, the jury went into a brief huddle, only to come out to announce a verdict that favoured the defendant. The tobacco industry's attorney stepped outside the court, smirking in fr ont of a battery of cameras. "We have a justice system that works," one of them said, "Our juries are intelligent. They are not conned by frivolous publicity-seeking plaintiffs. They have sent a clear message."

The first-ever such lawsuit against a tobacco company was filed in 1954 by a lung cancer victim in the U.S. It dragged on for 13 years before it was dropped. In 1964, the Surgeon General released a report that, for the first time, linked smoking with lun g cancer. A year later, health warnings became mandatory on cigarette packets sold in the country - a requirement that was later imposed in dozens of other countries including India.

By 1971, airlines began segregating smokers in separate sections of the aircraft and the U.S. took the lead in banning broadcast advertisements for tobacco products. In the 1980s, the tobacco companies won dozens of lawsuits filed by smokers dying of lu ng diseases. In a bizarre case in 1983, a smoker, Rose Cipollone, dying of lung cancer, was ordered by a court to pay $40,000 in damages - a verdict that was later overturned. Rose died soon after and her son withdrew the case because he could no longer afford to keep it going.

This was a scene that was played out time and again. The tobacco companies had enormous financial clout which enabled them to drive its opponents to penury. In July 1997, U.S. based tobacco companies came to an agreement with the Attorneys General of 40 States, whereby they promised to pay over $200 billion over the next quarter century into a fund to cover medical costs, help people to quit smoking and pay damages to affected smokers. They also agreed to remove cigarette advertisements from hoardings, sporting events and supermarkets and shut down cigarette vending machines. The agreement shielded the companies from cases, but did not restrict individuals from suing them.

And that is what they faced in early 1999, when hearings began in a Miami court. Five of the largest companies were taken to court by the first-ever class action suit filed on behalf of 500,000 sick smokers in Florida suffering from lung cancer, emphysem a and other diseases. On July 7, a jury found the five companies guilty of making a defective product and found them "engaged in extreme and outrageous conduct... with the intent to inflict severe emotional distress".

The jury agreed with the smokers on every count: that the industry deceived them about the dangers of smoking; suppressed research results; terminated research that would have produced safer cigarettes and targeted children with their advertisements. The final figure of punitive damages could well exceed the $200-billion settlement that the tobacco companies reached with the States - that is, if the jury verdict is not overturned in appeal. But the finding is still being seen as a startling reversal of a hitherto unchanging pattern. It was the first major defeat for tobacco companies.

Readers of John Grisham's thrillers might have felt a sense of deja vu while reading about the Miami court proceedings. His The Runaway Jury etched a startlingly prescient scenario: a jury which for the first time returns a finding in favo ur of a dead smoker.

Meanwhile, a special federal court has been set up in the U.S. to hear cases filed by countries such as Guatemala, Nicaragua, Bolivia and Thailand against American cigarette manufacturers. And in mid-August, six smokers with lung cancer filed a class ac tion suit in the Australian Federal Court on behalf of 40,000 fellow-smokers against the 'Big Three' cigarette manufacturers - Philip Morris, Wills and Rothmans.

Groups of sufferers from environmental smoke hazards - such as airline flight attendants forced to serve in the smoking areas of aircraft - have in the past sued cigarette manufacturers, with mixed success. But in the roster of legal moves in support of the innocent non-smoker, the recent Kerala court judgment has its own special place. It was the first instance when the judiciary has acted in favour of all passive smokers of a State without receiving a specific complaint against a tobacco manufacturer or trader.

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