Tobacco product liability cases (where a smoker who has developed disease due to smoking makes a claim against a tobacco company for inadequately informing them of the dangers attendant with using the product they manufacture) are currently pending in the United States(179) and the United Kingdom.(199) One Australian case, Scanlan v Rothmans of Pall Mall, was withdrawn during preliminary hearings in 1986 due to the rapid decline in health of the plaintiff.(200) Another case concerning a man with a congenital predisposition for emphysema, who unaware of his increased risk took up smoking and subsequently developed the disease, may be brought against WD & HO Wills.(201)
No case has reached a final settlement to date. The American cases have been characterised by protracted preliminary decision and appeal procedures which have turned cases into expensive epics for all parties. The tobacco industry is obviously better placed to meet these costs than the average member of the public; or, as a lawyer for US tobacco company RJ Reynolds has more colourfully observed: '...the way we won these cases was not by spending all of Reynolds's (sic) money, but by making that other son of a bitch spend all his'.(202) As another tactic, US tobacco companies have hired private detectives and conducted deliberately intrusive and intimidatory investigations into the private lives of plaintiffs in the hope of uncovering embarrassing or damaging personal details and frightening them into abandoning the suit.(202)
A recent review of the outlook for tobacco litigation in the US has identified six key areas in which a tobacco industry defeat could occur:(203)
ð Growing evidence of industry fraud and conspiracy regarding health issues could give rise to civil or criminal liability.
ð Cases against unfair or deceptive marketing techniques could be brought by 'public interest' actions (as occurred in Australia's AFCO v TIA case).
ð A simplification in procedures for tobacco product liability cases could encourage more plaintiffs to bring actions.
ð Third party victims of cigarette-caused fires or environmental tobacco smoke could succeed in claiming damages from tobacco companies. (The tobacco companies have the technology to produce cigarettes with a reduced propensity to ignite mattresses and upholstery, but have not done so.)
ð Suits could be brought by smokers seeking reimbursement for expenses incurred in breaking nicotine addiction (for example by the purchase of nicotine patches). An action along these lines failed recently in the US due to expiry of the statute of limitations in that particular case,(204) but a case is now pending in New South Wales.(205)
ð Uncompensated health care providers (such as the national health care service or health insurance companies) could sue tobacco companies for their contribution to incurred costs.
According to the reviewer, a defeat in any one of these areas would precipitate an avalanche of actions on multiple fronts against the industry.(203) There is no doubt that were they to succeed, tobacco product liability suits would bring down the tobacco industry in the same way as asbestos suits have devastated the asbestos industry.
Third party litigation (where an affected individual has sued a third party, for example an employer, rather than a tobacco company) has occurred successfully in Australia (see Chapter 6, Section 4). In these cases, the defendant generally has no concern for the commercial interests of the tobacco industry and the cases reach a rapid conclusion. Suits involving passive smoking in the workplace have nonetheless affected the tobacco industry by precipitating the introduction of bans on smoking in the workplace, which reduce smoking prevalence and overall consumption, ultimately influencing tobacco industry sales (see Chapter 6, Section 8, and Section 14.20 above).