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Epidemiology of the third wave of tobacco litigation in the United States, 1994–2005

¹ Tobacco Control Law & Policy Consulting, Ann Arbor, Michigan, USA
² Center for Health Promotion and Disease Prevention, Henry Ford Health System, Detroit, Michigan, USA
³ Center for Tobacco Use Prevention and Research, Michigan Public Health Institute, Okemos, Michigan, USA

Correspondence to:
Clifford E Douglas
Tobacco Control Law & Policy Consulting, 3189 Rumsey Drive, Ann Arbor, MI 48105-3437, USA; cdouglas{at}comcast.net

Objective: To describe the epidemiology of litigation against the tobacco industry in the United States during the years 1994–2005 (described as the "third wave" of tobacco litigation). "Epidemiology" refers to the study of the distribution and determinants of disease in populations. We apply the term "epidemiology" to the litigation context for purposes of characterising qualitatively and, to the extent possible, quantitatively the variety of cases litigated against tobacco manufacturers and allied tobacco interests during the third wave and their impact on the tobacco industry.

Methods: The data for this paper come from legal cases identified in the Tobacco Deposition and Trial Testimony Archive (DATTA) collection (http://tobaccodocuments.org/datta), transcripts of testimony and related documents found in DATTA, government-mandated reports filed by tobacco manufacturers with the US Securities and Exchange Commission, investment company reports, reports and analyses published by the news media, a variety of informational documents produced by the Tobacco Control Resource Center at the Northeastern University School of Law, and legal settlement documents provided by the National Association of Attorneys General.

Results: The US tobacco industry faced a far greater number of lawsuits, and a greater variety of types of lawsuit, between 1994 and 2005 than it had in previous years. Plaintiffs won 31 (41%) of the 75 cases that were tried to verdict during the years 1995–2005. Seven plaintiffs have been paid awards totalling US$115 million, including interest, following the exhaustion of appeals. Based on an evaluation of litigation brought against US industry leader Philip Morris, the total number of cases pending peaked in 2000, dropping off modestly since then. For example, 36 class actions were pending in 2000, while 33 were pending in 2005. In the same time period, individual actions fell from a total of 3385 to 2863. While the playing field has been levelled to some degree in the tobacco litigation arena with respect to the resources brought to bear by plaintiffs and defendants, tobacco industry defendants continue to employ far greater financial and human resources than their adversaries.

Conclusions: The third wave of tobacco litigation has represented a sea change in efforts to hold the tobacco industry in the United States accountable in American courtrooms. While tobacco manufacturers continue to do their utmost to make these cases difficult to pursue, many of the cases that have gone to trial have met with success in recent years, which suggests that plaintiffs’ lawyers are now better equipped to persuade juries of the defendants’ culpability.

Abbreviations: DATTA, Tobacco Deposition and Trial Testimony Archive; FDA, US Food and Drug Administration; RICO, Racketeer Influenced and Corrupt Organizations

Keywords: smoking; tobacco industry; legal cases; jurisprudence

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