Tobacco products have been the subject of lawsuits brought by states’ attorneys general and large insurance companies. As a result of these lawsuits, the tobacco companies have agreed to pay billions of dollars to settle state health care reimbursement claims for widespread smoking-related injuries. The persons actually affected by smoking-related diseases are, however, unlikely to receive the direct benefits of those settlements.
The avenue to direct consumer compensation is through product liability lawsuits against the tobacco manufacturers. Tobacco-related products liability cases include claims that the products caused cancer, circulatory diseases, respiratory diseases, birth defects, and addiction; contained a foreign substance; or failed to self-extinguish. Such claims may be brought by a single person or by a group of persons with related claims in a class action lawsuit. Products named in such suits include cigarettes, cigars, and smokeless or chewing tobacco.
Earlier, many suits by individual, private plaintiffs against tobacco companies failed because the plaintiffs were unable to prove that the defendants were aware of the harmful effects of smoking many years earlier at the time the plaintiff first began smoking. More recently, there has been a growing body of evidence based on the tobacco companies’ own internal documents that the companies knew of potential adverse consequences from using their products, but kept such information from the consuming public. Liability may now be based on asserted claims of fraud and deceit, negligent misrepresentation, intentional infliction of emotional distress, and violation of consumer protection statutes.
Claims for personal injuries resulting from the use of tobacco products that relate to promotional or advertising communications or the adequacy of warnings are subject to the federal Cigarette Labeling and Advertising Act and must be brought under that Act rather than under comparable state law. However, some related state law claims may still be valid such as conspiracy, breach of warranty, or misrepresentation. Evidence of a consumer’s addiction to tobacco products may be relevant to proving the danger posed by such products in a manufacturer’s duty to warn case. In response to a failure-to-warn claim, however, the tobacco companies may argue that the consumer was contributorily or comparatively negligent for continuing to use tobacco products even after information about their potentially harmful effects became widely available.
Plaintiffs now have a better chance of prevailing in a products liability suit against a tobacco company than they did even a decade ago. More and more evidence is available to demonstrate that the tobacco companies knew of the risks associated with tobacco use but failed to disclose them or, even worse, denied their existence.
The tobacco industry is currently facing a number of suits in various states alleging the tobacco companies had intended to deceive consumers into believing that light cigarettes were less harmful than their regular counterparts. Unlike most tobacco litigation, these are not personal injury suits, but are based on state consumer fraud and deceptive business practices legislation.
Even the federal Justice Department filed a federal civil lawsuit that alleged a conspiracy under RICO by the major tobacco companies to conceal health risks of an addictive and deadly product. However, an appellate court found that the government could not use RICO to go after the companies’ past profits. In August 2006, Judge Gladys Kessler ruled in the case that the tobacco companies violated RICO by conspiring to conceal the dangers of cigarette use and she ordered the companies to issue corrections and change labeling. Her order has been stayed pending appeal, and it is likely that the case will eventually end up in the US Supreme Court.
Tobacco companies are still winning some defense verdicts, especially where juries are unconvinced that smoking was the only cause of the plaintiff’s illness or find that the plaintiff was well aware of the risks of smoking and accepted those risks. Many lawsuits seeking to recover the health-care costs of treating sick smokers or seeking personal-injury damages have either failed or been overturned on appeal. Despite these tobacco company victories, anyone harmed by tobacco products should consult an attorney with experience in tobacco cases about their legal rights and remedies.