A Morality Play’s Third Act: Revisiting Addiction, Fraud and Consumer Choice in 'Third Wave' Tobacco Litigation

Abstract

Tobacco products liability litigation may be compared to a morality play, with judges and juries responsible for scripting which party is the most deserving of blame. Historically the tobacco industry fared exceptionally well, with a perfect record of never paying a tort judgment through two significant “waves” of products liability litigation. However, a third wave of lawsuits in the 1990s has altered the script, as evidenced by the nearly $400 billion settlement tentatively agreed to in June 1997. Regardless of whether the settlement is approved by Congress, most of the hundreds of third wave lawsuits (all but the state Medicare lawsuits and class actions) will continue. This Article analyzes how changing social perceptions about the tobacco industry, erosion of the assumption of risk doctrine, and new evidence regarding addiction and industry fraud will affect third wave case. It concludes that these factors may combine to produce a large number of mixed verdicts in third wave lawsuits, in which attribution of moral blame to both smokers and to the tobacco industry will often result in awards of partial damages.

Keywords: tort, tobacco, products liability, litigation, lawsuit, judge, jury, assumption of risk, addiction, third wave, morality, smokers, cigarettes