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Editor: C. Calvin Warriner
Profession: Cigarette & Tobacco Attorney

What is the strongest claim that anyone can make against Big Tobacco? It is, "You took my breath away!" The smoke first hits Grand Central Station... the lungs. From there, the rest of the body eventually gets involved. In January 2007, the Florida Supreme Court handed down its final decision in Engle v. Liggett, listing several diseases that link continuous and substantial tobacco use as a highly likely cause of the illnesses. Among those diseases other than lung cancer the Florida Supreme Court listed: aortic aneurysm; kidney cancer; pancreatic cancer; and peripheral vascular disease... Peripheral Vascular Disease.??

Not to de-emphasize its importance to those poor victims who have come down with that smoking related illness, peripheral vascular disease sounds very peripheral to a Jury. What gets to the very bottom of a Jury's soul is the inability to breathe; right now; right in the courtroom, as the Jury stares at an oxygen tank, placed next to a wheel chair, with a hunched figment of a human being strugling to remain seated, gasping for fortified air. You can't see peripheral vascular disease, but you can see the aftermath of lung cancer.

For those claimants with lung cancer, it may be enough to simply show that you were a regular smoker. This is because the vast majority of lung cancers are due to smoking. After all, tobacco claimants are not held to a standard of proving beyond a reasonable doubt, a causal connection between their lung cancer and cigarette smoking. Preponderance is enough. The benefit of the doubt should go to the lung cancer victim who can show years of smoking. The link is physically direct, epidemiologically direct, and morphologically direct. The claimant's argument should not require as many hours of expert testimony, and nothing is left to the imagination about the gravity of the situation. But that has not been enough in the past to satisfy individual causation claims.

The question is, "Can litigation ever make it possible for an individual to run a general causation race, jump over individual causation hurdles, and finally cross the finish line of individual causation?" The answer is, "It will be a marathon of hurdle races." Something is missing from the tobacco litigation landscape.

The missing theories in tobacco litigation are alternative and market share liability. Proof of general causation should be enough to establish individual causation and liability. The costs of accidents or causally related illnesses should be directly related to the cost of manufacture. Those costs should be included in the price of the product. Cigarettes are a dangerous product that can't be made safe. Therefore warnings are fruitless, or at least de minimis, and product design is not the issue. Good manufacturing practices are not helpful, either.

If all smoking is bad for your health, then it should not matter what brand a claimant smoked. The Complaint in City of New York v. The Tobacco Institute, Inc., filed with the Clerk of Court of the Supreme Court of New York states the elements of alternative and market share liability very well:

D. Alternative and Market Share Liability

The different brands of cigarettes smoked by consumers are of substantially similar composition and are commercially fungible. Similarly, the different brands of smokeless tobacco products used by consumers are of substantially similar composition and are commercially fungible.

On information and belief, the health effects of cigarettes produced by different manufacturers are essentially indistinguishable, as are the health effects of smokeless tobacco products produced by different manufacturers.
The passage of time, the lack of information in many cases of the brand of tobacco product used at various points of time by an individual consumer, and the switching of brands by many consumers during the time they used tobacco make it impossible in many cases to identify the manufacturer responsible for any consumer's particular tobacco-related disease.

Upon information and belief, during the relevant time period, defendants, except for defendants [ ], individually and/or collectively, accounted for virtually the entire production of tobacco products in the United States.
Under alternative liability, each defendant tobacco company is, therefore, jointly and severally liable.
Under market share liability, each defendant tobacco company is, therefore, severally liable for its proportionate share of the market.

It seems that alternative or market share liability is the only fair way to put a fair breath of life back into tobacco litigation. That is, the breath taken away from thousands of tobacco claimants...Otherwise...

There ought to be a penalty.