Smoking Guns and the Law: Litigation and the Humbling of Big Tobacco

Multinational Monitor, March-April 2005 | Go to article overview

Smoking Guns and the Law: Litigation and the Humbling of Big Tobacco


An Interview with Richard Daynard

Richard Daynard has played a key role in facilitating [the successful litigation against the tobacco industry. Associate Dean at Northeastern University School of Law in Boston, he has been involved in a number of organizations devoted to the study of tobacco and public health policy and implementation. He is president of the Tobacco Control Resource Center and chair of the Tobacco Products Liability Project. He is also chair of the Public Health Advocacy Institute's Law and Obesity Project.

Multinational Monitor: If it is general knowledge that smoking is bad for you, why should tobacco companies be held legally responsible for what happens to smokers?

Richard Daynard: The question is: What was the general knowledge at what point in history; and what did the tobacco companies do to affect the information environment?

That is a sanitized way of saying that these guys deliberately lied, manipulated the media and engaged in a very deliberate disinformation campaign to cloud the question of the extent to which dangers were really proven.

The industry's efforts were particularly effective with kids and smokers. It was effective with kids because they were told all kinds of things are dangerous, and the government and parents were saying all kinds of bad things about drugs and favorite teenage activities. Tobacco companies, in pooh-poohing cigarette health warnings, said this is all a lot of government gobbledygook.

For smokers who are addicted, it is very hard to make the effort to quit, and very hard to quit. Any rationalization to keep them from making the effort or succeeding was likely to be effective. I think there is no doubt that the tobacco companies' disinformation kept a lot of smokers smoking long past the time when they would otherwise have quit.

Another thing they did was develop filtered, low-tar and low-nicotine cigarettes for the purpose of reassuring smokers that they had a relatively safe alternative to quitting. In fact, these cigarettes are no safer for the smoker than the old, unfiltered cigarettes. The companies actually had information in their files that showed they knew that, as smoked, these cigarettes were not going to be any safer. But they put them out there, thinking, correctly, that smokers would be reassured.

MM: When did litigation against the industry begin?

Daynard: The litigation against the industry began in 1954, over 50 years ago. The first cases failed because the courts thought a couple of things. Yes, you can get lung cancer, they believed, but it is a rare disease, sort of like getting an allergic reaction to aspirin or something unanticipatable like that. The other thing they thought, as the evidence of smoking's hazards was starting to come out in the 1950s, was that that was the first time the tobacco companies knew it. In fact, the internal documents indicate that the companies knew well before that, into the mid-1940s.

The cases continued in three waves. The first wave petered out by the early 1960s. Each plaintiff was operating individually, where the tobacco companies had a joint defense. There was sort of a cottage industry, and the plaintiffs were being blown out of the water.

As part of the second wave, we had the Tobacco Products Liability Project, so the plaintiffs were a little more coordinated. But the industry still succeeded with their aggressive defense strategy. There was an infamous memo from an RJR attorney saying, "The way we win these cases, to paraphrase General Patton, is not by spending all of Reynolds' money, but making the other son of a bitch spend all of his." They would basically outspend, outlawyer the plaintiffs' lawyers. There was also hostility in the courts and among juries, who thought that anybody who smoked deserved to get lung cancer--of course, this was the lung cancer the tobacco companies insisted you couldn't get. …

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