Self Deception and Jury Awards

October 31, 2006 | By | 6 Replies More

This annoys me.

In 1971, Dick Van Dyke starred in a movie called  Cold Turkey.  It was a comedy about a dying town attempting to win a prize sponsored by a tobacco company that was betting against any town remaining “smoke free” for a certain length of time.  Van Dyke played the local minister who pushed the town into going “cold turkey” to win the prize.  He himself had to start smoking to make it fair.

It was funny and sad and filled with many truths about tobacco and habits and addictions that everyone understood to be true!

I grew up in the 50s and 60s and no one around me was unaware that smoking was bad for you.  No one around me was unaware that it was addictive.  Maybe they didn’t use that specific word for it, but they knew.

Comes the 80s and 90s and now the 21st century, and you would think that the tobacco industry had successfully kept people for a century in the dark about the ills of smoking.  As if their word on the subject could ever be trusted.  As if no one had ever realized–through the power of logic and reason–that smoking was a Bad Thing and that people could “trust” a company like Philip Morris to be honest about their product.

I’m being partly disingenuous, but not a lot.  My point is, people pretty much realized without having to be told that smoking was both addictive and bad for your health long before the current spasm of public outcry over what the tobacco company knew or didn’t.

So a jury in the state of Oregon awarded a widow eighty million dollars in punitive damages against a tobacco company for her husband’s death.  It’s going to the supreme court, not to argue whether she should receive some compensation, but to argue about the reasonable size of said compensation.

I have a problem letting people off the hook for personal responsibility in this.  People lie to themselves all the time about their personal proclivities, but that doesn’t mean the rest of us should abet such dishonesty.  And just because smoking is a nasty habit doesn’t mean it is any more representative of the tug of war between personal choice and public custom.

The question to be asked is whether or not individuals would smoke had, say, Philip Morris or any of the others come out and said, up front, “if you use this product it will eventually kill you.  It is habit forming.”  At a time when it was “cool” to smoke, I rather doubt that would have had much impact, but I could be wrong–it’s difficult to determine psychological tendencies hypothetically.  (Although Ralph Nader successfully demonstrated that convertible automobiles are far more deadly than hardtops, so much so they were taken from the market, but people don’t care! So now they’re back.)  You may fault–and expect damages to the community–from tobacco companies for hiding research about how dangerous their product is, but if people would have done it anyway I think we have to stop kidding ourselves about how responsible these companies are for individual deaths.

I repeat–everyone knew, in the way people generally know, from common sense and observation.  It was, we may say, an “open secret” for a long, long time.  The culture itself lied about it, lied to itself, joked and made light of it, because people wanted to do it anyway.

I don’t smoke.  Never did.  In the boy scouts, a few of us stole the scoutmaster’s cigarettes on a camp out and snuck into the woods to light up.  The first kid who did it turned green in a minute or so and puked.  I’ve never been a fan of physical discomfort, so I left.  The idiot kept trying it until he learned to like it.

Whose fault is that?  I recognized that this was a dumb thing.  I never tried it.  But for reasons other than taking a cigarette company’s word for it, others went through the ritual of overcoming the body’s normal rejection of smoking to develop the habit.  It’s harder to develop a smoking habit than a cocaine habit–you have to force your body to accept the smoke; with cocaine, one snort (that doesn’t hurt at all) and you’re there.  But people do it anyway.

I’m not a fan of smoking.  But I think slapping the cigarette companies with these ridiculous damages for individual deaths is a bad idea.  For one, that’s not what is currently reducing popular consumption of smoking–the culture has changed and cultural pressure is doing it, regardless of the law.  For another, it’s one more way of letting people believe–teaching them to believe–that the ills which befall them are not their fault.  That they have less responsibility to think and decide and act on reason.  That if they do certain things and the results are bad, then they can blame someone else.  I think this is a bad way to achieve any kind of a goal.

But it’s hard to take a culture to court.  Next best thing, I suppose, is a cultural institution.

But if we’re going to hammer the tobacco industry into the dirt, let us be honest to ourselves about it.  As I said, we all knew, for decades.  If we chose to accept the obvious nonsense in tobacco ads rather than do the hard work of making a reasonable decision, that’s on us.  If we wish now to absolve ourselves and make a whole industry a sacrificial lamb to a new public piety, then let us be openly venal and admit our hypocrisy–we want someone else to pay for our stupidity.

We should also take a lesson from Prohibition.  Everyone knows drinking too much is a bad thing.  Always have known it.  People do it anyway.  Making the alcohol industry pay for it turned into a pretty ugly thing.

Let me say in advance that all the bad things that can be said about smoking, the tobacco industry, and so forth I more or less agree with.  My issue here is with self-deception and the metrics of liability.

 

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Category: American Culture, Civil Rights, Communication, Consumerism, Culture, Current Events, Health, Law, Media, Politics

About the Author ()

Mark is a writer and musician living in the St. Louis area. He hit puberty at the peak of the Sixties and came of age just as it was all coming to a close with the end of the Vietnam War. He was annoyed when bellbottoms went out of style, but he got over it.

Comments (6)

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  1. Deb says:

    I'm not sure that I can agree that "everybody knew" it was bad, nor that "everybody knew" it was addictive. I grew up around people that generally didn't finish high school, seldom, if ever, read, and spent many hours each day working at back-breaking jobs in pulp wood forests, cotton fields, and mines. The same might not be true today, but in the 50s and 60s, maybe early 70s, no one I knew understood that tobacco was addictive, nor that the tobacco companies were deliberately putting things into cigarettes to make them more addictive. They all thought they could quit if they wanted to, that it was just a matter of will power. I've never been a smoker, and I made that decision when I saw the problems my mother would have if she ran out of cigarettes before my father came home from work. My mother would have me and my siblings all turning over sofa cushions, going through jacket pockets, old purses, etc., trying to find a cigarette butt or enough tobacco to smoke somehow. I could not express that as an addiction any more than my mother, but it is clear to me now that is just what it was.

    People also didn't really understand it was unhealthy. I think the fact that they had to force their body to accept the smoke, as you point out, should have been a clear indication, but it wasn't. People would tell me that their coughing was from bad air in the mines, or being half sick with hard work and bad weather, little good food, etc. They told me cigarettes gave them a lift, made them feel better. I understand that nicotine does in fact expand your blood vessels. At any rate, I have a lawyer friend that insists today she thinks better when she smokes.

    When I grew up, people had no idea that smoking was bad for the others around them. My parents were caring people, tried to insure we had healthy lives, good nutrition, immunizations, good meals, etc., but they each smoked 4-5 packs a day around us kids. I remember my mother feeding the baby a bottle with a cigarette in her mouth. Her only concern was spilling ash on the baby, so she covered it with a diaper (back when they were cloth). I was a 'car sick' child. My family put a lot of miles on the road, with me always sick in the back seat. I was grown before I realized that the smoking my parents were doing in the front seat was making it much, much worse.

    We all delude ourselves, and only the most thoughtful attempt to analyze and eliminate our delusions. Cigarette smokers would be no different in that regard. But I do believe many people did not understand the implications of smoking, and were not simply delusional. They were misguided, at the very least.

  2. Bob says:

    Both thoughtful posts.

    I am a casual smoker. I enjoy smoking, but can take it or leave it at will. I smoke about 2 packs a year.

    I know about the dangers of smoking, but those "statistical" dangers have little impact in the moment when a choice is being made to smoke or not. On the other hand, it's apparent to the smoker that they are doing harm to themselves. The sore throat, the cough, the phlegm, it's obvious stuff. (both experienced and observed in others)

    So while people in years past may have varied in the degree to which they knew about the long term dangers of smoking, they knew it was at least somewhat harmful – and did it anyway. They also knew it was addictive, in the same way Deb did – by seeing other smokers in action.

    Unless the tobacco companies outright lied about the products safety (not just implied) then the burden has to rest on the individual. The cigarette ads I've see didn't lie. They claimed virtues *relative to other brands* – smoother, lower tar, cooler, better taste, better filter.

    So, we have a legal product, with misleading, though non-fraudulent advertising, which is not a necessity in any way. We have individuals who made a choice to smoke without being actively lied to, and against the evidence of smoking's dangers. Note that the cancer link had been suspected long before being definitavely proven: http://medicolegal.tripod.com/cancerstats1925.htm

    Any financial award should be in direct proportion to explictly fraudulent advertising and mitigated by "commonly known dangers". If fraudulent advertising did occur, it was allowed by the FTC, and so government regulation failed. Fines and convictions should be imposed on tobacco companies in proportion to the fraud. Any harm resulting from continuing to smoke once warning labels were established would not be compensated.

    Fraud is illegal, and should be punished. Victims are often not compensated, though if there was a *reasonable* and *proportionate* way to do so, it would be a bonus.

    One thing is obvious to me. The current system of individual mega-million jury awards is not justice, by any stretch of the imagination.

  3. Deb says:

    I disagree with Bob regarding his statement that "the current system of individual mega- milion jury awards is not justice, by any stretch of the imagination." Is it a windfall to the individual? Definitely? Did the individual earn it? Definitely not. But is it punishment to the evil doer? Yes. That is why I will accept the outcome: because it may change what the wrong doer does in the future.

    I have heard, for years, stories about how juries have run amuck and burglars get awards from homeowners when they hurt themselves in the commission of a crime, etc, and I have NEVER been able to find a record of the case. Even if it were dismissed by the court, or settled by the parties, there would still be a record of the case having been filed. Civil cases are not 'expunged' when they are resolved. I have finally stopped looking, after years of attempting to find out where the case was filed, when, etc. When you hear an outrageous story, my bet is on it being a myth.

    I also heard about the runaway juries and how the awards staggered the imagination because it was so unfair and bore so little relationship to the actual bad acts. Generally I did find those cases when I searched for them. But I also found out more facts that the stories didn't cover. Take for example the McDonald's coffee case. So some old lady is clumsy and burns herself with coffee and gets millions of dollars. Sounds like a bad jury. But there is more to the story, I found. Turns out McDonald's knew their coffee was too hot. Several people had been burned, and burned badly extremely quickly because it was so hot. It was so hot that if it spilled, it burned, no matter how quick the customer got it off. Several county health departments had asked them to turn it down, but McDonald's refused. They were on notice that they had a problem "brewing" (pun intended).

    Then one day an old lady gets burned to the third degree within a few miliseconds. The burns are so bad it requires several surgeries. Pretty bad punishment for being clumsy with your coffee, or even not too bright to put it between your legs. What is next, the death penalty for not eating vegetables? This old lady asks McDonald's to pay her medical bills, they refuse, she sues.

    What the jury heard was WHY McDonald's would brew their coffee so hot: Guess why- the hotter the water is, the fewer beans it takes to brew the coffee. Heating the water was cheaper than buying the beans. It was all about profit. Now mind, you, I am all for profit. I have to make a profit in my business or soon I don't have business. It isn't the idea that they wanted to make a profit that bothers me. It is the idea that they wanted to make profit while ignoring human suffering THEY were causing.

    And the jury then considers how to punish McDonalds. They could give the lady her damages. Hospital bills, something for pain and suffering, maybe for permanent damage. That isn't going to be much for McDonald's, though. What is punishment? For an individual, it could be jail, or a fine. Fine me $1000 bucks, I'm very strapped. Fine me $100,000, I'm completely out of business, homeless, etc. But what about McDonald's? The only way to punish a corporation is in their pocket book. And they have big pocketbooks. $1000 fine means nothing to them. $100,000 probably means little. No doubt they paid their high priced lawyers a lot more than that. Back when the stunning award was made by the jury, I did a little research about McDonald's net worth. I've forgotten the figures exactly (give me a break, I'm an old lady), but the rough estimate is that the multimillion dollar award was not even as much as McDonalds gets for ONLY ONE DAY of coffee sales. Doesn't even sound like enough to punish them effectively.

    But guess what. Know what McDonald's did? They turned down the temperature of the water. Permanently. They use a few more beans. They hurt a lot fewer people. Being clumsy doesn't any more necessarily mean permanent muscle damage.

    Do I think the old lady deserved the money? NO. Do I wish it was given instead to some worthwhile charities? Yes, definitely. And maybe that is one solution, give those punitive damages to something worthwhile, just to get it out of McDonald's pocket and make them sit up and take notice. But what person, and what lawyer, is going to subject themselves to the public process, being called stupid for being clumsy or inattentive, or risking hundreds of thousands of dollars of the only thing a lawyer has to sell: time, just to get a few thousand?

    The system is flawed, but if the courts won't let these matters be heard as class actions so the award is shared among all those injured by someone's act of violence (which is how I see what McDonald's was doing), then it is the only way we can get those that don't care about us to at least be more careful because it costs them so much to do otherwise.

  4. hogiemo says:

    George Bernard Shaw once said; "Everyone has a right to their opinions but, no one has a right to be wrong on the facts."

    My issue with the post is lack of proof and understanding of the scope of the deceptive acts and practices of a multi-billion dollar industry which has wilfully deceived the public and lied under oath about whether it knew its products caused harm. Just search"tobacco companies' lies" and you'll get 3,380,000 files in 0.19 seconds. As for metrics of liability, the post and its comments don't take into account the actual realities of the legal system.

    The legal system weeds out most suits plaintiff's wish to file. As an attorney I turn down the overwhelming majority of "cases" which people wish to bring because the harm is more appropriately sued upon in small claims court, not recognized under the laws of Missouri or yes, just plain silly. My time is my commodity and I won't waste it with a frivolous suit.

    Larger jury awards are nearly always reduced on appeal, as was the award to the lady hurt by McDonald's. Did you know she had her award cut? No, because that fact doesn't serve the interests of those wishing to strip away consumers' rights to fair compensation for injuries caused by the carelessness of others. The "exploding Pinto" judgment was reduced, again no one heard about it.

    So, what were the facts in the Oregon case discussed earlier? The plaintiff became addicted to tobacco in the 50's and served in Korea. The jury heard the evidence and entered its verdict which was appealed to the Oregon Supreme Court. The Court upheld the verdict because it found Philip Morris' conduct to be "extraordinarily reprehensible" and that the marketing practices of P-M were "false and misleading" where the company "knew that smoking caused serious and sometimes fatal disease but it spread 'false and misleading' information to suggest to the public that doubts remained about the issue."

    OK. so I know what I sell when used for the purpose I sell it for will hurt you or kill you and tell you it won't hurt you or kill you and you use the product the way I intend and for the purpose it is intended and you die. I make billions selling the product, and after I repeatedly lie under oath about knowing it will hurt or kill you, I keep on selling the product and make more billions. Sounds like premeditated murder to me. $80 million isn't enough.

  5. Jason Rayl says:

    I do not dispute that tobacco companies have lied and lied egregriously. My entire point is that people have had the opportunity to KNOW BETTER for a long, long time. "Oh, I've been hacking and coughing, I turn into a craven ogre whenever I try to quit, there's a Surgeon General's warning and my doctor keeps telling me to quit smoking because it's bad for me, I've had a number of friends and relatives–not to mention high-profile celebrities–die from lung cancer, emphysema, and aggravated asthma and everyone shakes their head and says 'well, he/she wouldn't quit smoking,' " but because the tobaco company said there's nothing wrong with it, I'll take their word for it over and above a mountain of personal, anecdotal, and medical evidence? Because, really, a corporation would never lie…

    If I buy a pistol and the manufacturer tells me the bullets cause no real harm and I blow my brains out, my spouse shouldn't get to sue them for my stupidity. A class action suit to get the company to stop lying and pay a general fund penalty for it, fine. But if I persist in behaving stupidly–or even if I persist in behavior I know is bad but I enjoy–then that's on me.

    In what other area do people so completely deny all other evidence and accept the word of the corporation? (Religion, I suppose, but that's not a corporation–oh, wait, maybe it is.)

  6. Erich Vieth says:

    I agree with Jason that people who begin smoking cigarettes in these modern times are knowingly engaging in reckless behavior. I have great sympathy for them when they are diagnosed with cancer, but I am not inclined to award them damages.

    On the other hand, I have a lot more sympathy for those people who took up smoking in the 50's and 60's when tobacco companies were extremely busy hiding the risks of smoking from the public. I've written about what the tobacco companies were up to during that time period here: http://dangerousintersection.org/?p=419

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