Fighting Big Tobacco

[Update: A longer article of mine on the Manville Trust case is now available at the ePluribus Media Journal.]

At the beginning of this week, Federal Judge Jack Weinstein of the Eastern District of New York in Brooklyn handed down a ruling stating that a class-action suit can go forward against the tobacco companies based on their making people think that “light” cigarettes are safer than others.

It is a needed ruling.  And I really should know–I spent two months in Judge Weinstein’s courtroom as a juror on another tobacco case almost six years ago.

Anthony Sebok at FindLaw has a good piece on the current ruling.  If you are interested in the case I was on, where the Manville Trust sued the tobacco companies to try to get them to help pay for lung cancer caused by a synergy of tobacco and asbestos, look here for a reprint of a Reuters story on the outcome.

We never came to a verdict.  In a bizarre end, a mistrial was declared.  Two jurors refused to see that, if we followed the RICO law the suit was brought under, we could not find against the tobacco companies.  They may be awful, but they had not done what they were charged with.

They wanted to punish the tobacco companies so badly that they brushed aside the evidence (and it was substantial) that there had been no “conspiracy” among the tobacco companies to commit fraud.  We heard lots of testimony: Jeffrey Wigand, about whom the film The Insider was made, a Nobel laureate, a former Surgeon General.  And the papers we were given?  More than anyone ought to have to read or look through.  I ended up knowing more about the ins and outs of the tobacco business (going back to about 1953) than I would have thought possible.

It was clear: the tobacco companies were dishonest, venal, greedy… oh, pick whatever words you want, and they will fit–except “illegal.”  They stayed within the law–at least, on every point we were allowed to consider.

The difference between “light” cigarettes and others was never part of the lawsuit.  No one questioned the fact that both are deadly, and equally so.  It simply wasn’t a relevant fact to the outcome of the case.

Yet it did come up.  The plaintiff lawyers did try to use it to show the pattern of dishonesty the tobacco companies exhibit–and that might be one of the reasons the two jurors refused to vote in favor of the tobacco companies.  They knew the companies are evil, and wanted to punish them, no matter what (what they were attempting is sometimes called “jury nullification”).  The rest of us felt that we were charged with judging the tobacco companies under the specific points of law presented to us by Judge Weinstein–no more, no less.

However, all of us would have loved to be able to go after the tobacco companies for their patent dishonesty regarding “light” cigarettes.  We had seen the proof, had heard the testimony from tobacco executives: “light” cigarettes are every bit as dangerous as any other.  Yet the companies continued to promote them as though they were somehow healthier.  I’m sure millions of people kept smoking in the false belief that they were less likely to get lung cancer because they smoked “light” cigarettes.  I’m sure hundreds of thousands (if not millions) died as a result.

In my smoking days, I would justify continued smoking by buying “low tar” brands–and I know I was not alone.  I did not know, then, that there was no difference.  Probably, I would have stopped sooner, had I not assumed that they must be safer–or the government (which I assumed was watching the tobacco industry like a hawk) would stop the deception.

As we saw during the trial, there was no conspiracy among the tobacco companies to hide the dangers of tobacco.  They couldn’t–the data were already public.  They had no further data that they squirreled away (and it wouldn’t have mattered if they had–the dangers had been clearly laid out by others).  Everyone knew, buy the mid-1960s (from the early 1950s, really), just how dangerous tobacco is.  What the tobacco industry did was simply to refuse to admit that there were problems with their products, and to drag their heels in funding and conducting research (which really wasn’t needed anyway–the facts were out there).  They didn’t know anything about the dangers of tobacco any earlier than anyone else, and certainly never engaged in a conspiracy to keep that knowledge from the public.

They did, however, conspire (tacitly, at least) to keep people from discovering that there is no difference, health-wise, between “light” cigarettes and others.  That much was very, very clear.

So, I hope the class-action RICO case based on this fact goes forward–and smashes the tobacco companies as completely as possible.  They may not have broken the laws they were accused of breaking in the case I sat as juror on, but they are an evil bunch, and did conspire to keep us smoking as long as possible in the face of the mounting evidence that smoking was killing us.

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