by Allan Brandt
Cullman proved to be a sophisticated and canny witness, insisting under sharp cross-examination from Marc Edell that the industry was sincere in its commitment to resolve the smoking and health issue. At the same time, however, he confirmed the industry’s position that the link between smoking and lung cancer had never been proven. He brought to the witness stand years of experience in responding to such questions. On Face the Nation in 1971, Cullman told a national television audience, “I do not believe that cigarettes are hazardous to one’s health.” When asked by a reporter about studies linking smoking to low birth-weight babies, he notoriously answered, “Some women would prefer smaller babies.” Cullman’s public views had not changed much since 1971. At the Cipollone trial, he said, “There is still only a statistical association. It has never been proven. Very deep thinking medical men, I think, would concur in that.”89 It fell to Cullman to attempt to explain or rebut the incriminating documents that Edell had introduced into evidence. Confronted by documents showing knowledge of carcinogens and the results of addiction research within Philip Morris, Cullman simply replied that he was “not aware” of the particular correspondence. These documents could not be made to disappear, but such a defense could perhaps undercut their generalizability.
At the end of Edell’s presentation of his case, the industry again moved to have the case dismissed. This was denied. In a ruling that reflected his outrage and candor, Judge Sarokin offered a stinging rebuke to the companies. “A jury might reasonably conclude,” he wrote,that defendants in particular, and the industry in general, intentionally and willfully ignored the known health consequences to consumers from the sale of their products; that their so-called investigation into the risks was not to find the truth and inform their consumers but merely an effort to determine if they could refute the adverse reports and maintain their sales. . . . [T]he evidence presented also permits the jury to find a tobacco industry conspiracy, vast in its scope, devious in its purpose and devastating in its results.90
Industry lawyers claimed that Sarokin’s judgment (which did not go to the jury) was excessive and sought his removal. Nonetheless, he did dismiss the failure-to-warn claims against Philip Morris and Lorillard since Cipollone had not smoked these brands until after 1966, when the federally mandated warnings appeared on packages. He also dismissed the plaintiff’s claim that the companies could have produced a safer cigarette, noting that Edell would have had to establish that Cipollone would have used such a product if it had been marketed, which could only be speculated.
Donald Cohn, representing Liggett & Myers, emphasized in his closing argument that Cipollone had smoked for pleasure, fully aware of the hazards. An “intelligent, strong-minded woman,” she did not want anyone—including her husband—telling her to quit, according to Cohn, and “was in control of her life.” Attacking plaintiff’s claims of nicotine addiction, Cohn asserted “It’s a free country. No one forces you to smoke.” He argued that Liggett & Myers had no legal responsibility to warn smokers in the period before mandatory labeling since it was “well-known” that smoking carried risks. “We didn’t conceal anything,” he concluded. “We didn’t misrepresent anything.”91
The industry lawyers effectively tried to have it both ways. While denying that smoking was harmful, they nonetheless argued that, knowing of its harms, Cipollone should have quit. As attorney Peter Bleakley posited:If you accept that it is relevant that there is a statistical association between cigarette smoking and cancer, then you have to accept the evidence on the record of this case that Mrs. Cipollone could have reduced that risk, probably to the level of a nonsmoker, after fifteen years, but in any event very, very substantially by quitting.
Bleakley then reiterated a notion that Cohn and Northrip had already raised, telling the jury, “You are not the conscience of the community in this lawsuit. You are the judges of the facts in this lawsuit, and you apply the facts to the law that will be given to you by the Court, and your job is to decide whether Mr. Cipollone gets money. That is what this case is all about.”92
There was a weekend between the defense’s closing and his own, and Edell made good use of it. In a strong closing, he blasted the motives of tobacco manufacturers. “What you have seen in this case is an evil-minded conspiracy intended for one purpose and one purpose alone—profits on their part, deceit of the public on the other.” He also tried to unravel the defense strategies. “If everybody knew all the way back here, in the 1930s, 1940s, if everybody knew [about the hazards of smoking], why weren’t they doing research if everybody knew? On one hand they said there is not enough research. Not enough scientific research to warrant doing research, but, on the other hand, they say everybody knew. Do you want to know the truth of the matter? That is nothing more than a fabricated legal defense.”93
The defense, Edell said, had deflected attention from the big picture and focused it on Cipollone. “They put Rose Cipollone on trial,” he said. “She did something wrong. They argued to you freedom of choice. . . . If you don’t know what your options are or risks are, it is not free and informed choice.” He then turned the issue of choice on its head, arguing:Well, the defendants had a choice, too. Theirs was an informed choice because they knew what the facts were, and they chose a carefully orchestrated strategy designed by public relations counsel, designed by lawyers. . . . It boggles the mind.
Edell’s conclusion accused the companies of “outrageous misconduct.” He argued that the companies had acted callously in the “sacrifice of the lives of their loyal customers for dollars. . . . [A]s the first jury ever to see the internal workings of this industry, [you] can say, ‘That is it. We have had enough . . . this is not acceptable behavior.’”94
The case had been heard by eleven jurors, six of whom—three men and three women—were chosen by lottery to render the verdict. Each juror was presented with a seventy-two page charge written by Judge Sarokin, and twenty specific interrogatories. After six days of deliberations, the jurors returned to the courtroom.95 In the end, they seemed unsympathetic to both sides. Despite having heard the most compelling evidence to date about the industry’s activities, they held Cipollone to a high standard of personal responsibility. Edell’s strategy for rebutting the traditional assumption-of-risk defense by depicting Cipollone as addicted to tobacco had not worked. The jury’s decision reflected the deep social ambivalence about smokers and cigarettes in the late 1980s.
The jury did award $400,000 in damages to Antonio Cipollone—the first judgment against the tobacco companies after more than three hundred suits. But they sent mixed signals. Despite awarding damages to her husband, they also found that Rose Cipollone was principally responsible for her death from lung cancer and that the companies were not guilty of fraud and conspiracy to misrepresent the risks of smoking. Because the jury determined that Rose Cipollone was 80 percent at fault (based on their assessment of “personal choice”), recovery on the duty-to-warn claims was barred under New Jersey law. The award of $400,000 in damages stemmed from the jury’s finding that Liggett should have warned consumers before 1966 and therefore had contributed to Cipollone’s smoking, lung cancer, and death. Philip Morris and Lorillard were exonerated on the only remaining claims against them, conspiracy and fraud.
Both sides sought to hide their dismay and declare victory. Edell had been disappointed in the size of the judgment and especially the failure of the jury to find for Rose Cipollone on the issue of express warranty. He said the $400,000 was “fair and just for Tony.” “But I was shocked,” he added, “that they didn’t give an award to Rose on the express warranty.”96 On the industry side, Cohn called it “basically a clear victory for the defendants,” saying it sent a message “loud and clear that Americans have freedom of choice and are responsible for their actions.” A lawyer for Lorillard and Philip Morris, Charles R. Wall, said, “We’re disappointed with the damage award. But we’re very happy to win on the two major issues of conspiracy and fraudulent misrepresentation. And I hardly think
an award of $400,000 is going to cause any rush to the courthouses with new lawsuits.” 97 Edell responded that “the only industry that could lose a $400,000 verdict and claim victory is the same industry that told you that it still hasn’t been proven that cigarette smoking causes lung cancer.”98
The verdict powerfully demonstrated the severe difficulties in bringing suit against tobacco companies. Edell had mounted the most compelling liability case in the history of tobacco litigation. He had gained unprecedented access to internal industry files and incriminating evidence of the companies’ knowledge of the harmful and addictive nature of their product. But by the late 1980s, this may have seemed like old news to jurors, who ultimately held that Cipollone should have known better. Moreover, as the social acceptability of smoking declined, it had become more difficult to make a smoker into a sympathetic plaintiff. With Cipollone gone, the defendants had free reign to characterize her however they saw fit.
It may well have been Edell’s insistence on Cipollone’s addiction that ultimately alienated the jury. Portraying her as diminished or incompetent—as the addiction claim required—did not make her a more sympathetic litigant. And given that so many Americans had managed to stop smoking, claims of addiction were somehow less credible. The industry aggressively hammered home this point, reminding jurors of the multitudes of former smokers. There was simply no cultural reservoir of sympathy for an “addict.”
Both sides, unhappy with the jury’s findings, pursued the case on appeal. In 1990, the Third Circuit Court of Appeals threw out the verdict.99 It set aside the $400,000 finding on the grounds that Sarokin’s ruling that the plaintiffs did not need to demonstrate that Cipollone had specifically relied on the ads in question was in error. According to the appeals court, Liggett should have been able to question whether Cipollone had seen these ads and believed what they said. Once again, the industry could loudly repeat its claim—explicitly meant to discourage new plaintiffs and their lawyers—that it had never paid out a cent in liability actions. “We’re very happy,” exclaimed Cohn. “Now we’re back where we should have been.”100
But as one door closed, another opened. Several other aspects of the appeals court ruling actually cleared the way for future litigations. According to the court, plaintiffs could sue the companies on design claims regarding risk-utility, a claim Sarokin had dismissed. It would, the court asserted, be possible for a plaintiff to claim, for example, that prior to 1966 (when such claims were preempted by the labeling law) that a person was not aware of the harms of smoking. If a jury were to find that it was reasonable for a person to be unaware of the hazards, a company could be held liable for producing a product whose harms outweighed its benefits. This part of the decision led to new assertions of victory on the part of Edell and other plaintiffs’ lawyers bringing tobacco suits. Edell explained, “I definitely lost the verdict, but I got a lot. I got back something that I really wanted to try.”101 The Third Circuit had concluded that Cipollone had “live claims” against the companies on the risk-utility question. But five days after this ruling, Antonio Cipollone died. His son eventually decided to continue the case.
Shortly after the Third Circuit decision, the New Jersey Supreme Court issued a ruling in another tobacco case brought by Edell, Dewey v. Brown & Williamson, that the mandatory labels on cigarette packages did not preempt liability claims from smokers and their families. In a decision that flew in the face of other state and federal rulings, the New Jersey court permitted Claire Dewey’s action against the companies for responsibility in the death of her husband, who died at age forty-nine of lung cancer, to proceed. Even more significantly, the ruling served as a major push toward putting the question of preemption before the U.S. Supreme Court.
The federal and state courts were in obvious contradiction. Edell decided, on the basis of this conflict, to ask the Supreme Court to review, once and for all, the issue of preemption and tobacco litigation. The industry, eager to have the preemption doctrine enshrined, urged the high court to take the case as well.102 A definitive positive ruling on preemption would give the industry critical immunity to fight off new cases. In March 1991, the Court agreed to hear the case, and in October, it was argued before the eight sitting justices (at the time, Clarence Thomas awaited confirmation). In early 1992, the Court asked to have the case reargued before the full Court. This request was widely viewed as an indication that the Court was split, perhaps four to four.103 In this instance, noted constitutional scholar Laurence Tribe replaced Edell, who had argued the case the first time around. On the eve of the second round, the New York Times explained:The Cigarette Labeling and Advertising Act requires uniform national package warnings and provides that “no requirement or prohibition based on smoking or health shall be imposed: on manufacturers that properly label their packages.” It says nothing about lawsuits. To read civil lawsuits into the law would require judicial rewriting by justices touted by Presidents Reagan and Bush as dedicated to “interpreting law, not making it.”
Normally the Court demands the clearest expression of intent to preempt state laws, of a Federal regulatory scheme so pervasive as to occupy the entire legal field. Tobacco makers never asked Congress for such clarity, yet they ask the Court to discover it now. In the name of federalism and judicial restraint, they should not be handed in court something they failed to win in the legislature.104
Just as the Cipollone verdict offered complex mixed messages about tobacco torts, so too would the Supreme Court. Its decision held that the federal legislation, in particular the Public Health Cigarette Smoking Act of 1969 (Cigarette Act), did preempt certain failure-to-warn claims against the industry. This meant—among other things—that all claims about the industry’s responsibility to appropriately apprise smokers of the risk of smoking must focus on the period prior to 1969. With the aging of the population, this ruling radically restricted the pool of potential litigants. But even more importantly, it removed a central claim of most prospective plaintiffs, namely, that the labels did not adequately represent what the tobacco industry knew about smoking.
At the same time, however, the Court found that other common-law claims asserted in the Cipollone case—conspiracy and fraud—had not been barred by the legislation and could be retried. Smokers had the right to recover damages if they could prove that the industry conspired to hide evidence of the harms of smoking, misrepresented these dangers to the public, and breached express warranties in ads and other statements.
The Cipollone decision confirmed the industry’s prescience in 1964 when it reversed field to seek a warning label that would preempt state regulations. The majority opinion, written by Justice John Paul Stevens, defined more specifically what fell under the preemption scope of the federal legislation:The 1965 Act did not pre-empt state-law damages actions; the 1969 Act pre-empts petitioner’s claims based on a failure to warn and the neutralization of federally mandated warnings to the extent that those claims rely on omissions or inclusions in respondents’ advertising or promotions; the 1969 Act does not pre-empt petitioner’s claims based on express warranty, intentional fraud and misrepresentation, or conspiracy.
In examining the legislative history of the 1969 Cigarette Act, the Court interpreted the phrase imposed under state law to expand the original 1965 legislation to now include common-law rules (that is, tort litigation), arguing that the “broader language” of the 1969 version extended that section’s “preemptive reach.” In the congressional debate on the bill in 1969, there had been no discussion of tort liability whatsoever.105
Although they voted with the majority, Justices Blackmun, Kennedy, and Souter signed a separate opinion, which argued that no damage claims were preempted by the act. The language of the 1969 Act, they said, did not make explicit Congress’s intent to preempt state common-law damage actions. They disagreed, therefore, with the other four in the majority—Justices Stevens, Rehnquist, White, and O’Connor—who argued that failure-to-warn and fraudulent misrepresentation claims we
re preempted by the act.
A dissenting opinion, written by Justice Scalia and signed by Justice Thomas, argued that all claims should be preempted. This was surprising given that Scalia and Thomas were widely recognized for protecting the prerogatives of the states against encroachment by the federal government. Nonetheless, they read into the federal cigarette statute a preemption of tort liability claims that was nowhere in the text. By so boldly asserting federal preemption, Scalia and Thomas revealed a certain judicial activism.
As they had done throughout, both sides in the suit again claimed victory. Legal commentators pointed to the complex tensions, if not contradictions, at the basis of the unusual plurality decision. “Cipollone professed to give force to the heavy presumption against displacing state law in the face of congressional silence,” explained a commentator in the Harvard Law Review: However, the Cipollone Court weakened this presumption, first by finding express preemption of inadequate labeling claims despite the failure of the 1969 Cigarette Act’s preemption provision to mention common-law actions, and, second, by not limiting the ability of courts to consider implied preemption in the absence of expressly preemptive language.106