The American public is angry very angry with cigarette makers. In the increasingly acrimonious tobacco wars, one thing is brilliantly clear: The American public, in the form of jurors, is angry very angry with cigarette makers. This animosity was never more evident than in a San Francisco courtroom Monday, when a jury awarded $20 million in punitive damages to a former smoker who is dying of lung cancer. In light of recent awards, that sort of payback doesn’t have much shock value in and of itself but this case had a catch: Leslie Whiteley, whose lung cancer has spread to her brain, started smoking R. J. Reynolds’ and Philip Morris’s cigarettes after they were explicitly labeled as hazardous. Her lawyers claim the companies committed fraud by misrepresenting the dangers of cigarettes a charge the presiding judge allowed.
For years, there’s been an assumption in tobacco lawsuits: A plaintiff who started puffing before government-dictated warning labels were added to each package” cautionary statements were initiated in 1965 and beefed up in 1969” could claim ignorance of the hazards of cigarettes with a relatively straight face. After those dates, in particular 1969, all bets were off. This situation was seemingly solidified in 1992 when a Supreme Court ruling granted virtual immunity to cigarette makers against smokers who’d picked up the habit after 1969 and claimed they’d never been adequately warned about the dangers of cigarettes. This ruling, of course, was a great comfort to tobacco giants like Philip Morris and R. J. Reynolds; it created a firewall between younger plaintiffs and massive monetary damages.
the cigarette makers’ products clearly labeled as hazardous.
All this meant that Whiteley’s lawyers faced a daunting challenge. With the cigarette makers’ products clearly labeled as hazardous, could the plaintiff’s attorney’s convince a jury to disregard Whiteley’s role in her own illness and blame the tobacco companies for somehow misrepresenting the inherent dangers of their product? The answer is yes. They made the case that by not admitting until recently that cigarettes are dangerous for years the industry’s Tobacco Institute maintained that the many reports about cigarettes did not prove their toxicity the companies had sought to mislead consumers. That said, though, the jury’s verdict may have much less to do with Whiteley’s attorney’s mastery of advocacy than with the public’s increasing antipathy toward Big Tobacco. “If you look at the restrictions in the letter of the law, as set forth by the Supreme Court, the plaintiff didn’t have much of a case,” says TIME legal reporter Alain Sanders. “That the jury came back with such an enormous decision against the cigarette companies shows that these corporations are in big trouble.” Their legal maneuvers may have bought them some breathing room with judges, adds Sanders, but they’ve still got a lot of work to do in terms of wooing Joe Public. It’s not all bad news for the cigarette companies, though; only two of five previous similar jury awards have survived the appeals court. And needless to say, that’s exactly where this decision is headed.