Reaching Equilibrium in Tobacco Litigation

Aaron Twerski

Brooklyn Law School

James A. Henderson Jr.

Cornell Law School

June 1, 2010

South Carolina Law Review, Vol. 62, 2010
Brooklyn Law School, Legal Studies Paper No. 192

Recent pro-plaintiff developments in tobacco litigation may lead to the conclusion that such litigation will go on endlessly and threaten the financial viability of the tobacco industry. This article takes the opposite position. Although the industry may take some near-term losses, it is far more likely that tobacco companies will survive short-term losses and that tobacco litigation will reach a stable equilibrium within the next fifteen to twenty years. The threat of third-party payer claims is no longer viable. Courts have unanimously rejected them. With the exception of cases pending in Florida and West Virginia, there are few individual personal injury claims pending throughout the United States. Both the Florida and West Virginia trial plans are subject to serious constitutional challenge. Two possible serious threats to the tobacco industry remain – punitive damage awards and cases for economic loss based on fraudulent marketing of light cigarettes. The former are likely to come under serious constitutional scrutiny and the latter cases are viable only as class actions. Under the Class Action Fairness Act (CAFA), new cases will end up in federal courts which have been hostile to class certification in cigarette litigation. The relatively few pre-CAFA class actions that have been certified in state courts will have to grapple with difficult issues in attempting to assess damages.

Number of Pages in PDF File: 35

Keywords: products liability, tobacco

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Date posted: June 1, 2010  

Suggested Citation

Twerski, Aaron and Henderson, James A., Reaching Equilibrium in Tobacco Litigation (June 1, 2010). South Carolina Law Review, Vol. 62, 2010; Brooklyn Law School, Legal Studies Paper No. 192. Available at SSRN: https://ssrn.com/abstract=1618959

Contact Information

Aaron D. Twerski (Contact Author)
Brooklyn Law School ( email )
250 Joralemon Street
Brooklyn, NY 11201
United States

James A. Henderson Jr.
Cornell Law School ( email )
Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
(607) 255-2303 (Phone)
607 255-7193 (Fax)

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