MIAMI — A jury in northwestern Florida awarded a staggering $23
billion judgment late Friday against the country’s second-largest tobacco
company for causing the death of a chain smoker who died of lung cancer at the
age of 36.
The company, the R. J. Reynolds Tobacco Company, promised a prompt appeal.
Michael Johnson Sr. died in 1996 after smoking for more than 20 years. In 2006,
his widow, Cynthia Robinson, of Pensacola, sued R. J. Reynolds the maker of the
Kool brand cigarettes her husband had smoked, arguing that the company had
deliberately concealed the health hazards its product caused.
The four-week trial ended Wednesday. The jury deliberated for 18 hours over two
days, first awarding $17 million in compensatory damages and then emerging at 10
p.m. Friday with a $23.6 billion punitive judgment.
“When they first read the verdict, I know I heard ‘million,’ and I got so
excited,” Ms. Robinson said in a phone interview Saturday. “Then the attorney
informed me that was a ‘B’ — billion. It was just unbelievable.”
She said Mr. Johnson, a longshoreman and hotel shuttle bus driver to whom she
was married from 1990 until his death six years later, began smoking around age
13. He often lit a fresh cigarette with the butt end of another.
“He really did smoke a lot,” she said.
He had two children, who are now 23 and 29.
“The damages awarded in this case are grossly excessive and impermissible under
state and constitutional law,” J. Jeffery Raborn, vice president and assistant
general counsel for R. J. Reynolds, said Saturday in a statement. “This verdict
goes far beyond the realm of reasonableness and fairness and is completely
inconsistent with the evidence presented. We plan to file post-trial motions
with the trial court promptly and are confident that the court will follow the
law and not allow this runaway verdict to stand.”
Such efforts by the industry are often successful. In October 2002, a Los
Angeles jury awarded $28 billion in punitive damages against Philip Morris USA.
In August 2011, an appeals court reduced the punitive damages to $28 million.
The Florida case was among the thousands of the so-called “Engle progeny” cases
that stemmed from a 2006 court decision ruling that smokers could not file
class-action suits but were free to do so individually.
That decision reversed a $145 billion verdict in a class action awarded in 2000
on behalf of a Miami Beach pediatrician, Howard A. Engle. An appeals court
voided the award, saying it was excessive and the cases of individual smokers
were too disparate to be considered as a class.
The plaintiffs petitioned the Florida Supreme Court, which upheld the
decertification of the class but permitted individuals to sue, which set the
stage for Ms. Robinson’s lawsuit.
Friday’s verdict was the highest granted to an Engle progeny case.
Ms. Robinson was represented by Christopher M. Chestnut, based in Georgia, and
Willie E. Gary and Howard M. Acosta, both based in Florida.
“The jury just got it,” Mr. Chestnut said. “The jury was outraged with the
concealment and the conspiracy to conceal that smoking was not only addictive
but that there were deadly chemicals in cigarettes.”
He said the jury seemed most persuaded by 1994 C-Span footage of tobacco
industry executives claiming smoking did not cause cancer and was not addictive,
and by 60-year-old internal documents showing the company knew otherwise.
Scott P. Schlesinger, a Fort Lauderdale, Fla., lawyer who has sued big tobacco
but was not involved in the Robinson case, said a verdict this large is not
typical.
“There have not been multibillion-dollar punishments in the Engle cases for one
reason: We are afraid to ask for them. We are afraid of what will happen in the
appellate process,” he said. “This verdict is important because it goes back to
an ongoing saga that goes back to 1990. People have been filing suit one by one,
and we have been winning about 70 percent of them.”
September 4, 2012
The New York Times
By WILLIAM YARDLEY
Charlie Rose, a former United States representative from rural North Carolina
who fought to protect the tobacco industry and its farmers when political and
regulatory pressure on the industry were on the rise and smoking in steady
decline, died on Monday in Albertville, Ala. He was 73.
The cause was complications of Parkinson’s disease, said his wife, Stacye
Hefner.
Mr. Rose, a Democrat some called Mr. Tobacco, was first elected to the House in
1972. His southeastern North Carolina district was covered with tobacco farms,
but the crop’s economic and geographic footprint shrank over the next two
decades of his tenure.
Mr. Rose (no relation to the television interviewer of the same name) worked to
ease the transition and successfully fought to preserve government price
supports for tobacco even as the government was warning of its potentially
lethal health effects.
“There’s no way you could represent that district and not be in support of
tobacco farmers,” said Merle Black, a professor of politics at Emory University.
In the 1990s, the Clinton administration considered a significant increase in
the federal tobacco tax to help pay for the ambitious health care overhaul
proposed by the first lady, Hillary Rodham Clinton. Mr. Rose, the chairman of
the House Agriculture Subcommittee on Peanuts and Tobacco, led the opposition.
“In the past, the Reagan and Bush administrations were pretty reasonable about
taxing tobacco,” Mr. Rose said in an interview in 1995. “But I think all of us
who represent tobacco states knew that the growing concern about smoking and
health was going to someday lead to this type of attitude and reaction in the
White House. This talk of $2 a pack is scaring us to death, and that’s putting
it mildly.”
The health care plan did not pass, and the federal tobacco tax has yet to reach
$2 per pack — it is now $1.01 — but Mr. Rose was correct that change was coming.
He retired from Congress in 1996, two years after Republicans took control.
Charles Grandison Rose III was born Aug. 10, 1939, in Fayetteville, N.C. He
graduated from Davidson College and received his law degree from the University
of North Carolina at Chapel Hill. He worked as a chief district court prosecutor
before he was elected to the House.
Ms. Hefner, whom he married in 1995, is the daughter of former Representative
Bill Hefner of North Carolina. The couple moved to Albertville several years ago
to be close to Ms. Hefner’s family.
Besides Ms. Hefner, Mr. Rose is survived by a sister, Irene Owen; a brother,
Fred Rose; four children, Charles, Louise, Kelly and Parker; and a stepson,
Joseph Hawk. Two previous marriages ended in divorce.
Mr. Rose was more liberal than many other Southern Democrats of his era, on
issues including civil rights, and he was well regarded by other members of
Congress for helping modernize the House by installing computers in offices and
television cameras in the House chamber.
But he also faced ethics charges. In 1988, the House ethics committee issued him
a “letter of reproof” for failing to disclose that he had converted campaign
money for his personal use. In 1994, Mr. Rose agreed to pay $12,500 to settle a
civil action brought by the Justice Department related to the same issue.
Mr. Rose and Ms. Hefner started a lobbying firm after he left office and
represented a range of clients, including oncologists and R. J. Reynolds, the
tobacco company, with which the firm still has a contract.
This article has been revised to reflect the following correction:
November
14, 2011
9:00 pm
The New York Times
By STANLEY FISH
I’m sure
you’ve noticed those TV ads for pharmaceutical products that include an
incredibly long list of side effects and possible hazards recited by a cheerful
voice as men and women are shown living the happy lives made possible by a drug
that can inflict on them everything from bloating and joint pain to death. This
combination of positive and negative communications is mandated by the
government requirement that drug manufacturers must disclose all the risk
factors attending the product they are hawking.
The result is what one might call the “battle of information.” The drug
companies are providing information about the benefits of their product, and
under duress (it would not be their choice to do this) they are also providing
information about the dangers of that same product. It is their hope that the
positive message will have more impact than the negative one, and that hope is
supported by the fact that they get to tell their happy story in images (look
what this drug can do for you), while the other, distressing story (hear what
this drug can do to you) is conveyed by words. The companies are counting on the
fact that not all information-delivery systems are equal and, as the old proverb
goes, a picture is worth a thousand words.
The same dynamics are on display in a case decided on Nov. 7 in the United
States District Court for the District of Columbia, but the positions are
reversed: it is the government that is deploying images and the drug companies —
in this case tobacco companies — that are standing up for words.
FDA, via/European Pressphoto AgencyAn example of an ad campaign warning people
about smoking.
The case — R. J. Reynolds et al v. United States Food and Drug Administration —
concerns the F.D.A.’s plan to augment the textual warnings on cigarette packages
with graphic color images, including diseased lungs, a cadaver on an autopsy
table and a man blowing smoke from a hole in his throat. The tobacco companies
requested an injunction on the implementation of the plan until certain
constitutional matters could be resolved in the courts. They argued that the
“mandatory graphic images unconstitutionally compel speech”; for were they in
place every cigarette package would be a “mobile billboard” for a message the
companies did not choose to proclaim, but one they were required to display and,
in effect, pay for. (This of course would not be materially different from the
list of risk factors drug manufacturers are required to insert in ads they pay
for.)
The companies also claim that “the purpose and effect of the warnings is to
drown out Plaintiff’s own constitutionally protected speech and replace it with
the Government’s emotionally-charged anti-smoking message.”
“Emotionally-charged” is the key phrase here. The companies do not object to
particular images, but to the use of images at all because they speak to the
emotions and, in this instance, are “designed to shock, disgust and frighten”
rather than “provide purely factual and uncontroversial information.”
But is the producing of an effect, even of an effect that is visceral, unrelated
to the communication of information? Maybe yes if we’re talking about a horror
movie where the eliciting of shock, disgust and fear is the entire point. That’s
what people go to horror movies for — to experience an emotional rollercoaster
that is unattached to any cognitive message.
In the case of the tobacco warnings, however, the emotions intentionally
produced by the graphic images bring a cognitive message home. It is in fact a
horror-message — if you smoke, all kinds of horrible things are likely to happen
to you — and it is the government’s judgment, expressed in its brief, that the
print warnings we are now accustomed to have become “stale” and no longer
“convey [the] relevant information in an effective way,” no longer, that is,
convey the message.
Of course, the tobacco industry has lived with print warnings for a long time
and is fully aware of how humdrum they have become. What alarms them is the
specter (another kind of horror show) of warnings that might really convey the
relevant information effectively. What alarms them is not that the proposed
images distort the truth, but that they tell it. “Ultimately,” the government’s
brief concludes, “plaintiff’s objection to the pictorial health warnings is not
that they are false, but that they are true.”
Given that the conveying of true information about the risks of a legal product
has been held constitutional even when the government burdens a manufacturer’s
delivery of its message, one would have expected the government to prevail. But
is does not. Judge Richard J. Leon issued the injunction sought by the tobacco
companies and gave as a reason the illegitimacy of images as conveyers of
information: “[T]he government’s emphasis on the images’ ability to provoke
emotion strongly suggests that the government’s actual purpose is not to inform,
but rather to advocate a change in consumer behavior.” And again, “the graphic
warnings cross the line from information to advocacy.”
This is wrong in both directions. Images can inform and the bare recital of
information can advocate by appealing to the emotions. The line Leon wants to
draw is, at best, a blurry one, as is his contrast (borrowed from the
plaintiff’s brief) between images “calculated to provoke the viewer to quit” and
“disseminating purely factual and uncontroversial information.” It takes only a
second’s thought to undermine the contrast. Is the factual and uncontroversial
assertion that “ smoking can kill you” (one of the new print warnings) without
persuasive intent or effect? “Oh, I just thought I’d tell you that smoking kills
and can harm your children. Nothing hortatory on my mind, just sayin’.” And just
as the information that smoking kills is offered with the intention to “provoke”
the informee to quit, so is the image of a cadaver on a slab offered with the
intention of conveying a piece of factual and uncontroversial information —
smoking kills.
Leon regards that image as non-factual and therefore controversial because, he
says, the government does not offer “a single shred of evidence to support the
proposition that smoking causes autopsies.” But the proposition is not that
smoking causes autopsies, it’s that smoking causes death, and there’s plenty of
evidence of that. In order to draw from the image the conclusion he wants to
reach, Leon must read it in an obtusely literal way as claiming that every time
a cadaver lies on an autopsy table it has been brought there by smoking.
The claim, however, is at once narrower in scope and less controversial, in fact
not controversial at all: if you continue smoking, one of the things likely to
happen is that you’ll end up on a slab. The image of the cadaver stands in for
death, for the proposition that smoking kills. It is an example of metonymy, a
figure of speech in which a thing or concept — in this case death — is not
presented directly but by reference to something — the condition of being in a
morgue — with which it is closely associated. As a figure of speech, metonymy
operates at a remove from the object it points us to; it requires an inference.
But the inference, once made (and it is no trick at all to make it), puts us in
direct and forceful contact with an uncontroversial fact.
If Leon’s objection to the image were taken seriously, if assertions of fact
could be made only in the absence of figures of speech — no metonymies,
allusions, metaphors, comparisons, similes, patterned repetitions and a thousand
other deviations from an impossible literalism — the account of even a single
fact would fill 300 pages. As John McEnroe is fond of saying, “you cannot be
serious.”
But apparently Judge Leon is serious and one can only wonder why. The answer
given on some left-wing blogs is that he is in the pocket of the tobacco
industry. But a more generous and analytic answer might point to a very old
philosophical/theological tradition in which he enrolls himself, perhaps
unwittingly. That tradition is marked by two related oppositions. The first
opposes the verbal to the visual and stigmatizes the latter as the medium of
deception and false appearances. Aristotle’s distrust of spectacle (opsis)
founds an anti-theatrical prejudice that finds a high (or low) watermark in
Stephen Gosson’s “School of Abuse” (1579) and Ben Jonson’s invectives against
the set designer Inigo Jones. The theological counterpart to this prejudice is
derived from the second commandment (“thou shalt not make unto thee any graven
image”) and 1 John 2:16: “For all that is in the world, the lust of the flesh,
and the lust of the eyes, and the pride of life is not from the Father, but is
from the world.” The fruits of these texts can be seen in the periodic eruption
of iconoclastic frenzy.
The second opposition in the tradition is located within the realm of the verbal
itself. The literal, identified with pure observation and description, is
opposed to the rhetorical, identified (again) with deception and with a
surrender to the lure of surfaces and to base emotional appeals.
Either singly or in combination, the two binaries — words vs. images and
literal, information-bearing words vs. words aiming to persuade — have led to a
search for what Thomas Kuhn has called a “neutral observation language,” a
super-literal language uninflected and uninfected by the distortions of any
human, or as Leon terms it, “subjective” perspective. Although there have been
innumerable attempts to come up with such a language — from the efforts to
recover the language of Eden, to the linguistic reforms (no figures of speech)
proposed by England’s Royal Society in the 17th century, to the 20th century
logical positivists, to the construction of artificial languages with
universalist ambitions like Esperanto — it has never been found and never will
be found. One could say, then, that Judge Leon’s reasoning and the decision it
leads to are based on a linguistic mirage, a will o’ the wisp, although the
damage the decision might allow to be done, if it is upheld, is no mirage at
all.
November 7,
2011
The New York Times
By DUFF WILSON
A federal
judge on Monday blocked a Food and Drug Administration requirement that tobacco
companies put big new graphic warning labels on cigarette packages by next
September.
In a preliminary injunction, Judge Richard J. Leon of United States District
Court in Washington ruled that cigarette makers were likely to win a free speech
challenge against the proposed labels, which include staged photos of a corpse
and of a man breathing smoke out of a tracheotomy hole in his neck.
The judge ruled that the labels were not factual and required the companies to
use cigarette packages as billboards for what he described as the government’s
“obvious anti-smoking agenda!”
The 29-page ruling was a setback for Congressional and F.D.A. efforts to bolster
the warnings on tobacco packages. The agency has said they are the most
significant change to health warnings in 25 years.
The Justice Department is reviewing the ruling, a spokesman, Charles S. Miller,
said. The F.D.A. declined to comment, a spokeswoman said.
If the ruling is appealed — as both sides expect — it would join a different
federal judge’s ruling on similar issues on appeal and raise the possibility
that the issue will be decided by the United States Supreme Court.
Floyd Abrams, a New York lawyer and First Amendment specialist who argued the
case for Lorillard Tobacco of Greensboro, N.C., praised the ruling. He said the
companies had just objected to “grotesque” images, but not to new words of
warning.
“It’s basically rooted in the notion that compelled speech by the government is
presumptively unconstitutional,” Mr. Abrams said. “The only exception that could
fit here is the one which says that the government can require warnings to be
placed on products including tobacco products, but that the warnings must be
factual and uncontroversial in nature.”
Five tobacco companies had challenged the selection of nine specific graphic
warnings as an unconstitutional intrusion on commercial free speech. The judge
agreed with them on almost every point, saying the companies would suffer
irreparable harm if the provision were enforced before it was fully decided in
courts, a process that is likely to take years.
“It is abundantly clear from viewing these images that the emotional response
they were crafted to induce is calculated to provoke the viewer to quit, or
never to start, smoking: an objective wholly apart from disseminating purely
factual and uncontroversial information,” Judge Leon wrote.
“At first blush, they appear to be more about shocking and repelling than
warning,” Judge Leon added in a footnote.
Antismoking activists called on the Justice Department to appeal immediately.
“This ruling presents a direct and immediate threat to public health,” Charles
D. Connor, president and chief executive of the American Lung Association, said
in a statement. “The tobacco industry’s efforts to halt the replacement of
cigarette warning labels that are 25 years old, ineffective and hidden on the
side of packages, will result in more lives lost to tobacco.”
Matthew L. Myers, a lawyer and president of the Campaign for Tobacco-Free Kids,
a Washington advocacy group, said Judge Leon had sympathized with tobacco
companies during oral arguments.
“The government has been expecting this decision and will appeal,” Mr. Myers
said. “In addition, many of the same issues are now pending before a panel of
the United States Court of Appeals for the Sixth Circuit because a federal judge
in Kentucky reached a decision different than Judge Leon’s decision today.”
In that case, Judge Joseph H. McKinley Jr. ruled the cigarette makers could be
forced to put graphic images and warnings on the top half of their packages, as
Congress required. But Judge Leon noted that Judge McKinley had not seen the
actual proposed images.
Judge Leon was appointed to the bench in 2002 by President George W. Bush. Last
year, Judge Leon also ruled against the F.D.A. over e-cigarettes, an electronic
device that looks like a cigarette and delivers nicotine, saying they should be
regulated as tobacco products rather than under the stricter regimen as drug
delivery devices. The government has not appealed that case.
The Family Smoking Prevention and Tobacco Control Act of 2009 gave the F.D.A.
authority for the first time to regulate tobacco products. It included a
provision directing the F.D.A. to require larger, graphic warning labels
covering the top half of the front and back of cigarette packs by Sept. 22,
2012, as well as 20 percent of print advertising.
The F.D.A. had studied 36 images and narrowed them down to nine after surveys of
effectiveness. The photos are similar to some included with cigarettes in
Canada. But the tobacco companies argued, and the judge agreed, that the F.D.A.
could not prove the images would make a statistically significant difference in
smoking rates in the United States.
“We are pleased with the judge’s ruling and look forward to the court’s final
resolution of this case,” Bryan D. Hatchell, a spokesman for R.J. Reynolds
Tobacco of Winston-Salem, N.C., makers of Camel cigarettes, said after the
ruling.
Other plaintiffs in the suit are Commonwealth Brands, the Liggett Group, and
Santa Fe Natural Tobacco. The Altria Group, parent company of Philip Morris,
makers of the dominant brand of Marlboro cigarettes, did not join the lawsuit.
Altria was also the only major cigarette maker to support the new legislation.
For thirty years or more the
scandal sheets have printed articles on "The Tobacco Habit" as a mild variation
on their standard treatment of such shockers as prostitution, political graft,
and the traffic in dope. The tobacco companies paid only sidelong heed, with
bold hints that, on the contrary, a cigarette was a relaxant, a soothing syrup
and a social grace.
Their long golden age — twenty years of soaring sales — exploded in a bombshell
prepared by Dr. Ernest Wynder of New York and Dr. Evarts Graham of St Louis.
They reported they had produced skin cancer in 44 per cent of the mice painted
with tobacco tar condensed from cigarette smoke.
This study was hardly as comprehensive as the British study of fifteen hundred
human lung-cancer patients, but it was piquant. The newspapers sat up when the
Institute of Industrial Medicine examined all the tumours reported in the
Wynder-Graham study and declared them to be malignant.
Papers [reported] speeches made by Dr. Wynder and Dr. Ochner, Chief of Surgery
at Tulane University. Dr. Wynder quoted thirteen American and foreign studies to
conclude that "the prolonged and heavy use of cigarettes increases up to twenty
times the risk of developing cancer of the lung."
Dr. Ochner foresaw that the male population of the United States might be
decimated within fifty years by this type of cancer if cigarette-smoking
increases at its present rate. Within an hour of the opening of the Stock
Exchange that day big blocks of tobacco stocks were up for sale.
By the first of this year the horrid truth was out that the sale of cigarettes
in the first ten months of 1953 was off 2.1 per cent. It seems a negligible
fraction. But nothing gets to feel so normal as unrelieved luxury, and a
desperate tobacco executive reflected that if every American smoker used "one
cigarette less a day, our sales would drop by 5 per cent," which is to say three
million packs a day, or an annual loss of $255.5 millions.
The makers of filter-tip cigarettes came out celebrating the providential
insight that had led them to manufacture a cigarette that "filtered out" all
those by implication cancerous tars and fumes. Filtered cigarettes sold as many
in 1953 as they had sold in the preceding seven years.
The Institute of Industrial Medicine means to break down tobacco tars in an
attempt to discover which fraction caused the skin cancer in mice. This ambition
is evidently so beset with chemical and biological problems that it has taken
almost a year to build and set up the necessary equipment.
