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Commentary | PERSPECTIVE ON TOBACCO

Plaintiffs Should Try Sharing in the Blame

If smokers admit some fault and seek only partial recovery, manufacturers are more likely to pay.

July 11, 1999|RICHARD L. CUPP Jr. | Richard L. Cupp Jr. is a professor at Pepperdine University School of Law

A wise observer of courtroom dramas once noted that jurors often view the issue of assumption of risk in civil lawsuits as a grand morality play. On the courtroom's stage, the plaintiff portrays the defendant as negligent or even evil, and the defendant similarly attacks the plaintiff's shortcomings in willingly accepting a risk and then suing over it. The jury is left to script the drama's outcome by balancing the parties' moral failings.

Although the observer's insight predated modern tobacco litigation, nowhere is the analogy to a morality play more appropriate. The dilemma faced by the jury that on Wednesday provided a landmark verdict for smokers in Engle vs. R.J. Reynolds Tobacco Co. is illustrative. It will be revisited frequently by other juries for years to come.

In Engle, a Florida class action, the jury completed the first phasee of a multiple-stage trial by ruling against the five largest tobacco companies on several general issues related to their misconduct toward consumers. With good cause, the plaintiffs' lawyers portrayed the industry as a paradigm of corporate evil. In closing arguments, one of the plaintiffs' lawyers implored the jury to punish the industry for four decades of "fraud and lying and deceit."

Of course, the manufacturer's attorneys were equally passionate in denouncing the plaintiffs. Much of its criticism centered on failing to accept responsibility for choosing to smoke. The impact of manufacturer's attacks on smokers' moral standing will be felt more strongly in the remaining phases of the trial. Unlike the recently concluded first phase, which focused primarily on the industry's misconduct, the remaining phases will center on the smokers' injuries and conduct.

Assumption of risk is a flexible concept that asks whether the plaintiff subjectively appreciated a risk and voluntarily encountered it. What constitutes true "appreciation" of a risk, and what it means to "voluntarily" encounter it, are susceptible to wide interpretation. Depending on the jurors' rough sense of justice in balancing the parties' blameworthiness, they often interpret assumption of risk broadly or narrowly to achieve a result they perceive as fair.

Jurors' sense of fairness is influenced by shifting societal perceptions. As the tobacco industry's wrongs have come increasingly to light, attention paid to smokers' culpability may be somewhat less intense than in earlier times. In recent years, many states, including Florida, have made it easier for jurors to avoid an all-or-nothing decision by adopting the concept of "comparative" assumption of risk. Under this approach, jurors are allowed to reduce the plaintiff's award, rather than eliminate it entirely, if they find that both parties share blame. Courts created comparative assumption of risk in part due to concerns that jurors often refused to consider assumption of risk when they knew it would eliminate a partially worthy plaintiff's claim entirely.

Sadly, our public discourse on tobacco litigation too frequently resembles the outdated all-or-nothing approach to culpability. Many, looking only at individual responsibility, seem to believe that smokers' knowledge of some danger is all that matters, and that because smokers are blameworthy, courts and legislatures should refuse to intervene. This is misguided. Even if smokers and tobacco companies were equally blameworthy (which seems questionable), doing nothing would not treat them equally. Rather, it would allow manufacturers to engage in horrendous misconduct without deterrence or punishment. On the other extreme, anti-tobacco industry activists often inappropriately portray smokers as powerless victims. Seeking justice requires balancing the moral failings of both sides.

In the remaining acts of the Engle vs. R.J. Reynolds Tobacco Co. morality play, the jurors will be forced to confront the balancing issue more directly in deciding an appropriate level of damages. The smokers' lawyers would be wise to openly acknowledge their clients' share of blame and should invite the jurors to award only partial compensation. The jurors likely will decline to award plaintiffs full damages regardless of their lawyers' approach, and freely admitting that the plaintiffs don't deserve full compensation will temper many jurors' distaste for them.

Millions of smokers pay for their share of the blame with their lives. If large numbers of them simply acknowledge their fault and seek only partial recovery, tobacco manufacturers likely will pay for their share of blame with many more billions of dollars.

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