Wednesday, May 17, 2006

Defense Verdict in Seattle Smoking Lawsuit

A Seattle jury yesterday ruled in favor of R.J. Reynolds Tobacco Company in a personal injury lawsuit brought by the husband of a women who died in 2001, 11 years after quitting smoking primarily Winston cigarettes, manufactured by the company.

The suit had been filed by Phillip Kimball in 2003 to recover damages for the death of his wife Carla, in U.S. District Court in Seattle, and the jury verdict was announced after a brief deliberation following this approximately two-week trial.

The apparent reasoning of the jury was that Kimball was aware of the risks of smoking and voluntarily and knowingly assumed those risks, and thus she, not R.J. Reynolds was responsible for her death.

The Rest of the Story

My sense is that this is the trend we are going to start seeing in tobacco litigation, thanks in part to the efforts of several major anti-smoking groups and advocates to shift the public's perspective of responsibility for the smoking problem from the industry over to the individual smoker.

While my personal view is that the tobacco companies should be held responsible for damages to their customers who began smoking prior to the point at which the companies publicly acknowledged the deadly health risks of smoking in their public communications, it is ultimately an opinion and the fate of these trials is going to be determined by how the public views the balance of responsibility in these cases.

And I think it is unquestionably true that the current direction in which the anti-smoking movement is going is leading to a shift in the public's view of this balance - away from industry responsibility and towards personal responsibility. Some people may view that as a good thing, but from the perspective of the prospects for winning these cases, it is devastating.

In essence, what these anti-smoking groups are doing is conducting a massive public relations campaign for the tobacco companies to shift public opinion in a way that favors the industry in tobacco litigation.

In particular, I think the promotion of smoker-free workplace policies, laws banning smoking in homes and cars, widespread outdoor smoking bans, and the promotion of the idea of treating smoking around children as a form of child abuse are all contributing to the deteriorating environment for our efforts to hold the tobacco companies responsible for the effects of their misconduct over the last five decades of the 20th century.

How can we promote the idea that smokers should be banned form workplaces, viewed as child abusers, and treated as criminals for smoking in a parking lot or in their own homes when we are asking juries around the nation to view smokers as victims of an industry that lied and deceived the public about the hazards and addictive nature of their products, undermined public health efforts to inform the public of the risks of smoking, and failed to acknowledge publicly that their products were deadly until just four or five years ago?

The answer is that we can't. We can't have it both ways. If we are going to continue promoting the treatment of smokers as child abusers and criminals, and as individuals who are not worthy of employment because of their informed decision to engage in an unhealthy behavior which they can easily change, then we really need to stop pursuing litigation in which we argue that these very same smokers are not responsible for their decisions and were unable to quit smoking.

The inconsistency in the current anti-smoking position is immense. Regardless of how people feel about the burden of responsibility in these cases, I hope that everyone can see that the position that these major anti-smoking groups have staked out is untenable because it is plagued by a fatal inconsistency.

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