Even the Odious Have Legal Rights

As a society, we've allowed our hatred of tobacco companies to erode the integrity of our judicial system and the Constitution's promise of due process. Indeed, in the context of tort law and civil trials, Big Tobacco is not unlike those "enemy combatants" stashed away at Guantanamo -- defendants so odious the rest of us hardly care if the system's ordinary rules are stretched or suspended to go after them.

Cut to Madison County in Illinois, affectionately known by Chamber of Commerce types as the nation's top "judicial hellhole." It's where George W. Bush went early in the year to give a speech on tort reform. Bush talked a lot about medical malpractice but didn't mention the most notorious class-action case ever tried (as opposed to settled by a panicked corporate defendant) in that county. No surprise there; doctors make more sympathetic poster children for the cause of tort reform than tobacco peddlers.

Philip Morris -- which renamed itself Altria a few years back to sound like some Swedish relief agency that cares deeply about impoverished children in Africa -- was one corporate defendant that valiantly stepped into the Madison County judicial ring. It wasn't pretty. The 2003 trial, Price vs. Philip Morris, led to a $10.1-billion judgment, and the ensuing wrangle over the size of the bond it had to post in order to appeal nearly bankrupted the company.

The Supreme Court of Illinois heard the appeal last November and could rule on it any day. It's surprising it has taken this long -- the opinion need only be a pithy: "You've got to be kidding us. Reversed." The trial was a crude abuse of the class-action system -- cases meant to allow a large group of individuals in a similar situation to file a common lawsuit.

Relying on state anti-fraud laws, creative plaintiff attorneys alleged that all Illinois buyers of either Marlboro Lights or Cambridge Lights cigarettes over the last three decades -- about 1.14 million people -- had been defrauded by claims that the cigarettes contained lower tar and nicotine levels. The wonderfully vague anti-fraud law provided an end run around the difficulties of "certifying" a large class when personal health injuries are at issue. Relying on the anti-fraud statute also meant Philip Morris wasn't entitled to a jury trial (which corporate defendants don't usually want unless they find themselves in a place like Madison County).