Cover Story

Smoking guns

Blame-shifting lawsuits are on the rise against the tobacco industry and gun manufacturers as plaintiffs seek to punish companies for how people use their products. So far, the judicial system seems unwilling or unable to kick the habit.

Issue: "Smoking guns," March 6, 1999

Just 48 hours before Valentine's Day, Patricia Henley got a whole lot of loving from a San Francisco jury. The 52-year-old lifelong smoker was awarded a record-breaking $50 million in punitive damages, to be paid by the tobacco companies accused of causing her inoperable lung cancer.

Court-watchers said that eye-popping sum would surely lead to similar lawsuits in other states. Last week, that prediction came true as a Portland, Ore., jury was seated in a $110 million lawsuit brought by the family of Jesse Williams, a 40-year fan of Marlboros who died of small-cell carcinoma in 1997. The family members contend that Philip Morris "exploited Williams' inability to stop smoking," and therefore should compensate them for his death at age 67.

The two suits are part of a larger trend. In courtrooms across the country, lawyers are seeking to persuade jurors that corporations-tobacco companies and gun manufacturers in particular-should be held responsible for the foolish and sometimes evil choices made by individuals. "Lead us not into temptation," the plaintiffs are praying to corporate America. "But if you do, be prepared to pay."

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Patricia Henley said her temptation started with her first puff at a high school dance. She was 15 at the time. That puff led to a three-pack-a-day habit that lasted for 35 years. For 30 of those years, every pack that Ms. Henley ripped open included the Surgeon General's warning that she was, in effect, killing herself. And even before that, the health hazards of smoking were well known: California had anti-smoking programs in place as early as the 1950s. Still, Ms. Henley said, despite all the warnings, the cigarette industry had addicted her and she simply could not quit.

Of course she did quit two years ago, when her lung cancer was first diagnosed. And that put her in the company of 46 million other Americans who have made the choice to stop smoking, just as they once made the choice to start.

Still, the jury bought Ms. Henley's devil-made-me-do-it argument in a big way. The award was more than three times what the plaintiff's lawyers had asked for-and it could have been bigger yet. The jury foreman said after the trial that one juror had suggested an award of $1 billion to teach the tobacco companies a lesson. "I accused them toward the end of losing touch with reality," the foreman said. "I mean, the numbers just flowed out of their mouths."

Anti-smoking activists were ecstatic. Along with predicting a tidal wave of lawsuits, they also voiced hope that the tobacco companies would finally stop making their killer product so attractive to gullible buyers.

"I would imagine that the tobacco executives are meeting at this very hour trying to figure out if it's too late to clean up [their] act," said Richard Daynard, a Northeastern University law professor who has worked with states that sued the cigarette makers. "I think really for the first time in their history they're going to have to sit down and say maybe we should go for safer cigarettes, maybe we should go to plain packaging."

Plain packaging? To those looking to shift the blame for their actions, the warm reds and refreshing greens of cigarette labels are hypnotic, evidently. Like the serpent in the garden, they're supposedly too beautiful to resist.

On Feb. 13, a day after the San Francisco verdict, a jury in Brooklyn handed down a judgment at least as shocking. For the first time ever, jurors found a group of gun manufacturers directly responsible for three deaths in the city. They went on to award $560,000 to the family of one of the victims, sending shudders down the spines of those who hold, in the words of a Boston Globe columnist, an "antiquated interpretation of the right to bear arms."

The verdict was heartening to Chicago mayor Richard Daley, whose city is suing the gun industry for $443 million. The claim: Gun manufacturers, knowing full well that handguns are illegal in the city, flood dealers in nearby suburbs with more guns than they could possibly sell for local use. Atlanta, Miami, New Orleans, and Bridgeport, Conn., have recently filed similar lawsuits, and legal experts predict a dozen more cities could join the money chase by this summer.

The Windy City already has one of the toughest gun laws in the country, a near-total ban on owning or merely possessing a handgun within city limits. Yet, much to the chagrin of those who believe that basic human goodness is corrupted by environmental factors, Chicago's gun control law has failed to control Chicagoans' fallen nature. Quite the opposite, in fact. Last year, Chicago logged more handgun-inflicted homicides than any other city in America.

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