I was under the impression that the tobacco industry had settled all the claims against it. I was mistaken. The major tobacco companies settled with 46 states in 1998. Claims by individual smokers were not covered. A recent case that brought this fact to my attention and required me to do some research to alleviate my ignorance is Greene v. Philip Morris USA Inc. (Massachusetts, No. SJC-13330, 5/9/2023), https://www.mass.gov/files/documents/2023/05/09/w13330.pdf.
Individual lawsuits against cigarette manufacturers were almost universally unsuccessful from the 1950s through the 1980s. Then,
[i]n the 1990s, plaintiffs began to have limited success in tobacco lawsuits, partly because some cigarette company documents were leaked showing the companies were aware of the addictive nature of tobacco. The first big win for plaintiffs in a tobacco lawsuit occurred in February 2000, when a California jury ordered Philip Morris to pay $51.5 million to a California smoker with inoperable lung cancer.
Around this time, more than 40 states sued the tobacco companies under state consumer protection and antitrust laws. These states argued that cigarettes contributed to health problems that triggered significant costs for public health systems. In these lawsuits, the tobacco companies could not use the defense that had proven so successful in lawsuits brought by individuals – that the smoker was aware of the risks and decided to smoke anyway.
In November 1998, the attorneys general of 46 states and four of the largest tobacco companies agreed to settle the state cases. Terms of the settlement are referred to as the Master Settlement Agreement [MSA]. [Among other things], [t]obacco companies agreed to refrain from engaging in certain advertising practices, particularly ad campaigns that marketed cigarettes towards kids, [and] agreed to pay annual sums of money to the states to compensate them for health-care costs related to smoking (a minimum of $206 billion over the first twenty-five years), https://www.nolo.com/legal-encyclopedia/tobacco-litigation-history-and-development-32202.html (emphasis added).
The MSA was and is controversial. And there have been many changes in the tobacco industry and much disputation about that $206 billion annual payment since 1998. For a well sourced, well written, up-to-date article on the MSA, see https://en.wikipedia.org/wiki/Tobacco_Master_Settlement_Agreement.
The above-cited source goes on to describe the post-2000 history of individual smoker lawsuits:
In 2006, the Florida Supreme Court threw out a class action lawsuit brought on behalf of 700,000 smokers and their families against tobacco companies. In its ruling, the court found that tobacco companies knowingly sold dangerous products and kept smoking health risks concealed, but that the case could not proceed as a class action. Instead, the court ruled that each case must be proven individually. This ruling paved the way for over 8,000 smokers and their families to bring individual lawsuits against the tobacco companies. By 2015, according to RJ Reynolds regulatory filings, the company faced jury verdicts totaling almost $300 million, although many of those cases are in various stages of appeal. (Emphasis added.)
In short, tobacco companies have been litigating thousands of lawsuits by individual smokers for the past 22 years (and counting). I have no idea what the total number is, nor whether there is any pattern to the outcomes; my research has not revealed any source of such data. Probably one would have to collect and collate data from many different sources to come up with meaningful statistics, which unfortunately I don’t have time for. But here’s a hint:
For over half a century, the world’s largest cigarette manufacturers have relied on Shook, Hardy & Bacon. Our lawyers have defended more than 6,000 cases involving a range of evolving claims and novel legal theories – truly litigation of the highest stakes – in state and federal courts in all 50 states. We have tried more than 150 cases and won a majority of them…. The firm is currently defending more than 3,000 cases and serves as national counsel for Philip Morris USA and Philip Morris International, providing litigation and regulatory counsel. https://www.shb.com/services/practices/product-liability/tobacco
Clearly, if Shook Hardy has defended more than 6,000 cases and only took 150 or so to trial, it settled almost all of them.
In the first quotation above, I emphasized the fact that “some cigarette company documents were leaked showing the companies were aware of the addictive nature of tobacco,” resulting in “limited success” by plaintiffs in the 1990s. In the decades since then, discovery by plaintiffs’ attorneys has unearthed documents that provide much more information about what the tobacco companies knew and when they knew it. In particular, the tobacco companies’ internal documents prove that they knew that smoking causes cancer, contrary to their decades-long “nothing to see here, folks” PR campaign and multiple public statements by tobacco executives. I presume this is why Shook Hardy has settled 97.5% of its tobacco cases. I am at a loss to understand why it didn’t settle today’s case, Greene v. Philip Morris.
Patricia Greene developed lung cancer after smoking Marlboro cigarettes for decades. She underwent a difficult course of treatment, including chemotherapy, radiation therapy, and multiple brain surgeries to treat metastatic disease. The jury returned a verdict for the plaintiff on the theory of civil conspiracy. In addition, the trial judge found the defendant liable under Massachusetts’ consumer protection law and awarded treble damages for the defendant’s willful and knowing deception of the public – specifically, its fraudulent claim that light (low tar and nicotine) cigarettes were safer than regular cigarettes.
I will be quoting at length from the Supreme Judicial Court’s opinion. We all know, in a general way, about the tobacco industry’s campaign of deception. But it’s ancient history – it started 70 years ago, and it ended 25 years ago with the signing of the MSA. I haven’t thought about it in a long time, and I’ll wager my readers haven’t either (unless they’re tobacco plaintiff or defense lawyers). So it’s shocking to see the evidence marshalled the way the SJC has done:
In December of 1953, the executives of the largest American tobacco companies, including Philip Morris, met in New York City to discuss a coordinated response to published studies substantiating a link between smoking and lung cancer. Although they internally admitted “that their own advertising and competitive practices have been a principal factor in creating a health problem,” they committed to a “united front against the claims that…cigarette smoking causes cancer.” To that end, they hired a public relations firm to undertake a “positive…entirely ‘pro-cigarettes’” campaign…. [Footnote to the emphasized sentence: The attendees were also well aware of the addictive nature of cigarettes. One executive noted, “It's fortunate for us that cigarettes are a habit they can't break.”]
A primary strategy of the coordinated campaign was “to overwhelm” the voices of those who challenged cigarettes as unhealthy “with mass publication of opposed viewpoints.” Its first salvo was a full-page statement published in over 400 newspapers in January of 1954, titled “A Frank Statement to Cigarette Smokers,” and signed by fourteen cigarette and tobacco companies, including Philip Morris. Contrary to the understanding reflected in the signatories’ internal company documents, the statement told the public that “there is no proof that cigarette smoking” caused cancer….
For decades, the cigarette companies continued to publicly deny that smoking caused cancer or was addictive, even as their internal documents showed otherwise. The record is rich with examples…. In a 1976 interview, a Philip Morris executive denied that any research existed that could prove that its products caused cancer, implored viewers to “read both sides” of the issue, and promised that “if the company, as a whole, believed cigarettes were really harmful, we would not be in the business.” In 1994, Philip Morris's president testified before Congress that there was no proof that smoking was addictive or caused cancer….
….Philip Morris's head of sales determined in 1964 that, given the persistent health-based opposition to cigarette smoking, it would be advantageous for the industry to “give smokers a psychological crutch and a self-rationale to continue smoking.” One form of “crutch” was alternative product lines, which included “filtered” or “light” cigarettes…. Internal Philip Morris market research…show[ed] that many consumers believed light cigarettes to be healthier than regular cigarettes. This belief, however, was misplaced: research by Philip Morris showed that smokers of light cigarettes would adjust their manner of smoking [by inhaling more deeply for a longer period], resulting in equal or greater amounts of tar and nicotine consumption compared to smoking nonlight cigarettes…. (Footnotes omitted; emphasis added.)
Having completed its summary of the facts, the court turned to Philip Morris’s argument that there was insufficient evidence to support the jury’s finding of liability for civil conspiracy:
…[T]he concerted action theory [of civil conspiracy] is akin to a theory of common law joint liability in tort. This theory applies to a common plan to commit a tortious act where the participants know of the plan and its purpose and take affirmative steps to encourage the achievement of the result….
Here, the underlying tort Greene alleged was fraudulent misrepresentation – that Philip Morris and its coconspirators misrepresented the health consequences of cigarettes and their addictiveness…. Philip Morris does not on appeal dispute that the plaintiffs introduced sufficient evidence of agreement between it and the other cigarette entities to deceive the public about the dangers of smoking, nor does it dispute the falsity of many of the coconspirators' statements in evidence….
Instead, Philip Morris attacks the causal connection between the conspirators’ acts and Greene’s smoking, especially reliance. It first asserts that the plaintiffs failed to show that Greene actually relied upon any of the coconspirators’ misrepresentations, citing to Greene’s testimony that she started smoking because of Marlboro advertisements that said nothing at all about the risks of smoking, and her admission that she had not read…various [fraudulent] documents prepared by the conspirators….
This view of the evidence is far too narrow. In assessing sufficiency of the evidence, we review the evidence in the light most favorable to the jury verdict…. Through that lens, the evidence showed that the conspiracy, of which Philip Morris was a significant part, undertook a unified, pervasive campaign to hide the true health risks of smoking from prospective and actual smokers, by overwhelming and drowning out the voices seeking to establish the dangers of smoking with mass publication of false and deceptive pseudoscientific statements regarding their safety. The effect was to create a smoke screen [Nicely done. – MPA] of deception and disinformation concealing the true dangers of cigarette smoking, including the dangers of the “low tar and nicotine” cigarettes being marketed to her as a safer alternative, despite the industry’s knowledge of compensation and the mutagenic effects of smoking such cigarettes. A reasonable jury could conclude that Greene was exposed to this smoke screen of misinformation, or at least its over-all effects, as well as the deceptive marketing campaign, particularly that directed at low tar and nicotine cigarettes, and that all of this fraud and deception helped to conceal the dangers of continuing to smoke from her.
Of course, plaintiffs seeking to prove reliance must do more than introduce evidence that falsehoods were in the air, however pervasively: they must establish causation by proving that they themselves relied on those falsehoods….
…[W]e conclude that Greene has met this requirement by introducing evidence of her detrimental reliance on the conspiracy’s misrepresentations regarding filtered [and light] cigarettes. Philip Morris [falsely and knowingly] represented that such products, including Marlboro Lights, delivered lower tar and nicotine and were a healthier alternative to regular cigarettes…. Particularly against the backdrop of her exposure to the conspiracy’s broader disinformation campaign, a reasonable jury could conclude that Greene was exposed to the fraud and deception in the particular marketing and messaging regarding filtered [and light] cigarettes and that she relied on it to justify her continuing to smoke Marlboro Lights….
…The conspirators expressly misrepresented to the public that they would not have been in the business of selling cigarettes if cigarettes were truly dangerous, and Greene explicitly bought into that false messaging. Given the extent of the efforts of the coconspirators to deceive the public and conceal the health risks of smoking – including its highly addictive nature and the comparative dangers of filtered [and light] cigarettes, which were marketed as being lower in tar and nicotine and, thus, a safer alternative when the conspirators knew they were not due to compensation – the jury could have found that Greene would have smoked less, or quit sooner, absent the conspiracy's campaign of fraud and deception. (Citations and internal quotation marks omitted; emphasis added.)
Certainly there are times when the reliance defense is legitimate. The Greene opinion cites a good example – a case in which the Eleventh Circuit found “insufficient evidence of reliance where plaintiff only testified to ‘brief recollection of a Marlboro Man advertisement, but…could not explain what it was about the Marlboro Man advertisement that influenced her desire to smoke.’” That’s a case for a defendant to take to trial. And while hindsight is admittedly 20/20, it seems clear to me that Greene was not such a case.
