October 29, 2014
Individual smoking related tobacco claims can be brought in California. As recently as July 30, 2014, a Los Angeles County jury returned a damage verdict in the amount of $17,736,700 against Lorillard Tobacco. This was a products liability case brought by the widow of a lung cancer victim who died despite having given up cigarette smoking as long ago as 1988.
The fundamentals of all claims against big tobacco for lung cancer-related injury and death is grounded in the law of strict products liability and fraud.
Tobacco litigation in California lay dormant from 1988 to 1998 during a time when the California legislature unwittingly conferred on tobacco an immunity against suit.
Presently there are no legal impediments to a smoker maintaining an otherwise viable products liability case against the tobacco manufacturer for smoking-related disease.
Major tobacco companies spent decades, literally from the 50s to the 90s denying not only the link between smoking and cancer but even into the 90s they continued to vigorously deny this deceit.
In November 2012, a United States Federal judge in the final phases of the long-running racketeering case against leading tobacco manufacturers found they had violated the Federal racketeering laws by engaging in a decade's long scheme to deceive the public about the dangers of smoking. One of the penalties she imposed was a requirement that cigarette makers issue corrected statements about the dangers of their products on television, in newspapers, on product packaging and retail displays.
The cigarette companies purposefully designed cigarettes with enough nicotine to create and sustain addiction. When you smoke, the nicotine actually changes the brain, that is why it is so hard to quit. In a chilling preamble to the Court's ruling, the judge observed that "more people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes and alcohol combined."
In the recent California verdict, the surviving spouse claimed her husband's consumption of two brands – Kent and Newport cigarettes (both Lorillard brands), were a substantial contributing factor to his developing lung cancer. The evidence against Lorillard, and similarly so with other tobacco companies, is that in the manufacturing of a cigarettes, menthol is added not just to allow an otherwise harsh product to be inhaled more easily but also to enhance nicotine impact. Big tobacco not only originated the distribution of a dangerous and lethal product in its natural state, but by manipulation and adulteration through additives, amplified its addictive character. The manufacturers thus elect to enhance nicotine delivery in order to increase consumer addiction and increase profits.
The evidentiary record so damning to big tobacco is well-established in the multiple cases that have gone to trial across the United States. This body of evidence is now in the public domain.
As powerful as this evidence is against big tobacco, each and every tobacco case is vigorously and aggressively fought. Up until 1999, tobacco had a pretty good record of convincing juries that it was the smoker who was to blame. They love to hide behind "volenti non fit injuria" – translation from Latin to English: "to a willing person, no injury is done." This is a common-law doctrine vigorously advanced in the defense of these cases. This defense comes undone, however, when the jury learns of tobacco's deceit and its aggressive pursuit of additives to enhance the addictive character of the cigarette.
Those plaintiffs with the most compelling cases are those who started smoking in the 1960s before the warnings went on the cigarette packs. For instance, in the case tried in Los Angeles this past summer, the jury allocated 50% of the responsibility to the smoker who, in that case, had begun smoking the defendant's cigarettes in 1973, after the warnings had gone on the labels. The balance of the responsibility was assigned to big tobacco, Lorillard included.
A short bit of history to put things in perspective. Before rolled cigarettes, lung cancer was almost non-existent. A British physician, Richard Doll, in 1950 established a causal connection between smoking and lung cancer. A second study was published by him in 1954.
At the same time as Dr. Doll was publishing his study in the British Medical Journal, big tobacco commenced its campaign to "create public doubt "about the health hazards. Big tobacco formed the Tobacco Industry Research Committee (TIRC) which was a public relations organization whose mission statement was to assault anyone who assaulted tobacco. They called Dr. Doll's report a "bold untruth." By 1960, the World Health Organization issued a report stating smoking was a cause of lung cancer. Despite this, TIRC, on behalf of big tobacco, continued its "propaganda" mission.
Big tobacco in 1991 asserts the causes of lung cancer were "unknown" and in a 1962 press release to CBS advise the public "the causes of lung cancer are still unknown."
Big tobacco began closing down their research laboratories, or moved them overseas, to hide research that could show cigarettes addictive and cancer-causing characteristics. It did not want to be subject to subpoena.
In essence, what big tobacco was doing throughout the 60s, 70s and 80s was working hard to create a "false controversy" about the health hazards of smoking knowing all the while from their scientists that it was addicting and cancer-causing.
The tobacco industry worked hard to create the perception in the mind of the public that the warnings on the cigarette packs were "political" more than anything else. This campaign served big tobacco well as it's growing and vast community of smokers being heavily addicted became ready believers in this propaganda. Unfortunately, for many it became a fatal addiction.
As late as 1994, tobacco's chief executives testified before Congress denying the addictive or harmful effects of tobacco and it's cancer-causing properties. The records and files of these companies establish the deceit of this testimony to Congress under oath.
For not very good reasons, the California legislature in 1987 past Civil Code section 1714.45 which conferred immunity on any product that is known to be unsafe, consumed voluntarily and is in an unadulterated form. Wisely, in 1997, the legislature amended Civil Code section 1714.45 to remove tobacco from that protection. Thus, since 1998 big tobacco is again subject to suit in California.
The elements of damage in a personal injury tobacco case are medical expenses, past and future, lost earnings, past and future and a sum for non-economical damages (pain and suffering) past and future. With any lung cancer plaintiff, attorneys handling such cases must press hard to secure an early trial date given the shortened life expectancy. Punitive damages are damages which are designed not to compensate the victim but to punish the defendant. These are available only in personal injury tobacco cases. California law prohibits the recovery of punitive damages in wrongful death actions. The evidence is so powerful and compelling with regard to the devious nature of the behavior of big tobacco and its conscious and callous disregard for health and safety that jurors, more often than not, award substantial sums as and for punitive damages. The reprehensibility of the conduct is manifest in the record of every case tried.
If you, a family member or a colleague have been diagnosed with lung cancer, we would invite you to reach out to us for a consultation to determine the propriety of maintaining an action on your behalf against one or more tobacco manufacturers.