Catastrophe theory and tobacco litigation

Abstract

While tobacco industry has thus far been successful in fending off product liability suits, thereby reducing litigation activity against it, a possible industry defeat in any of six legal areas would be likely to produce dramatic increases in anti-tobacco litigation. outrage at accumulating evidence of industry fraud and conspiracy increases probability of civil or even criminal liability. Public interest actions may permit courts to enjoin unfair and deceptive marketing techniques. Recent judicial decisions have simplified process of winning tobacco products liability suits. Third party victims, whether of cigarette caused fires or of environmental tobacco smoke, make especially appealing plain tiffs. Smokers are beginning to seek re imbursement for their expenses in break ing their nicotine addiction, while in surance companies and uncompensated health care providers may begin suing cigarette manufacturers for their fair share of health care expenses. (Tobacco Control 1994; 3: 59-64) Since first review of tobacco litigation appeared in Tobacco Control two years ago,1 there have been promising developments but no breakthroughs. Advocates have been ac cused of crying wolf, with sceptics arguing that predictions are better made by extrapo lating from industry's proud record of never having paid a penny to its victims than by analysing potentially favourable develop ments which have yet to produce a payout.2 There is a limited but important class of tobacco cases where plaintiffs have won... but not against tobacco industry. In cases involving employees who have been injured by environmental tobacco smoke (ETS) on job, employers have been required to pay substantial damages. Thus, for example, in 1992 an Austra lian psychologist recovered $85000 from her employer, Department of Health, for having exposed her to ETS from 1974 to 1984, thereby causing her emphysema and aggravating her asthma. The evidence suggested that Health Department should have known from late 1970s about dangers of ETS, and was therefore both negligent and in violation of laws protecting employees from vitiated air and injurious or offensive fumes.3 In 1993, an employee in Honolulu city attorney's office recovered disability compensation benefits for her adenocarcinoma of lung; Director of Hawaii's Disability Compensation Division accepted her evidence that her cancer was caused, at least in part, by her 28 years of workplace exposure to ETS.4 The sceptics' main claim, however, that tobacco industry itself is untouched and thus presumably untouchable, remains to be con fronted. The first thing to notice is how hard industry has worked to maintain its never-paid-a-dollar status. Michael Perts chuk, co-Director of Advocacy Institute, has estimated that industry spends $600 million per year defending 50 or so cases pending against it.5 Time Magazine estimated that industry spent at least $75 million defending Cipollone case alone.6 Indeed, an RJ Reynolds attorney made strategy ex plicit in an internal memorandum: the way we won these cases was not by spending all of Reynolds' money, but by making that other son of a bitch spend all of his.7 Spending far more to defeat each case than would be required to settle case would make no economic sense, however, if stakes were limited to that one case. Rather, what industry fears and must fear is not writing checks to a few plaintiffs, but public collapse of its reputation as being invulnerable to legal claims. The industry's predicament can be ex plained through theory. A mathematical model for dealing with discon tinuous and divergent phenomena,8 catas trophe theory applies to situations charac terised by bimodality, radical instability at point of transition, acute sensitivity to slight changes in initial conditions in determining which of two possible modes is initially assumed, hysteresis (a stickiness to current mode of behaviour, delaying transition), and sudden changes from one mode of be haviour to another. Where catastrophe theory applies, extrapolation from past conditions is extremely hazardous. Like asbestos litigation,9 tobacco litigation is probably bimodal. In current situation, with fewer than 100 cases pending, only especially brave or committed attorneys at tempt to take on cigarette companies, who are playing king of mountain, outs pending each attorney who dares attack them. We can imagine a situation in which plaintiffs' attorneys are no longer frightened of industry: there would then be tens of thou sands of cases, reflecting tremendous toll that cigarettes take.10 It is hard to imagine an Northeastern University School of Law, 400 Huntington Avenue, Boston, Massachusetts 02115, USA RA Daynard This content downloaded from 207.46.13.124 on Sun, 11 Sep 2016 04:57:59 UTC All use subject to http://about.jstor.org/terms