For plaintiffs, litigation against the cigarette industry offers the hope of providing monetary damages and restitution for past wrongful actions by these companies. For public health, litigation against cigarette companies holds the promise of forcing these companies to alter their products and marketing practices to prevent future violations of the law.^1,2

One of the key areas of dispute in tobacco litigation today is whether cigarette companies manufactured and marketed products that the companies knew to be defective, and whether they could and should have taken more aggressive steps to market less hazardous products.³ Product defect claims have typically focused on how cigarette companies designed their products to induce and maintain nicotine addiction, the use of additives that increased addiction and health risks, and misleading and fraudulent marketing claims especially those related to filters and low tar cigarettes.^{4,5,6,7,8,9,10,11} Plaintiff attorneys have also typically sought to demonstrate that cigarette companies failed to make a reasonable, good faith effort to develop and market less harmful tobacco products and in fact may have deliberately conspired to suppress such efforts (the so-called Gentlemen’s Agreement).^12–14

Plaintiffs’ product defect claims have been among the most difficult charges to prove to a jury, even with the millions of pages of internal tobacco industry documents now available to support charges of wrongful actions by cigarette companies. For example, in a recent class action lawsuit brought on behalf of smokers in Louisiana, the jury found that the tobacco companies had conspired to distort the truth about the dangers of smoking and marketing cigarettes to minors, but did not find that the companies had designed and marketed a defective product.¹⁵

This paper examines how cigarette companies have defended themselves in four recent court cases against charges that their cigarettes were defective and argues that they could and should have done more to make cigarettes less hazardous.

METHODS

The data for this paper come from the opening statements made by defendants in four recent court cases: two class action lawsuits (Engle 1999, and Blankenship 2001) and two individual litigant cases (Boeken 2001, and Schwarz 2002). The plaintiffs received positive jury verdicts for plaintiffs in three of the four cases (Engle, Boeken, and Schwarz). Those three positive verdicts have been appealed. Copies of the opening statements from each case were obtained from the Tobacco Deposition and Trial Testimony Archive which is available online at: http://tobaccodocuments.org/datta/.^16–20

We chose to review the Engle and Blankenship cases because both were class action lawsuits that involved all of the major cigarette companies (Philip Morris, RJ Reynolds, Lorillard, Brown and Williamson, Liggett Group) and their affiliated research and trade organisations (Council for Tobacco Research, Tobacco Institute). The Engle case is historic because it represented the longest jury trial in US legal history (nearly two years) and resulted in a $145 billion dollar jury verdict against the tobacco industry. In contrast, the Blankenship case resulted in a jury verdict for the tobacco industry. The Blankenship trial took place two years after the Engle verdict, which we thought might alter the arguments used by defendants in the case. Thus, we were interested in contrasting the opening statements in the two cases. The two individual cases we chose to review were both against Philip Morris. The Schwarz case involved a plaintiff who smoked a low tar cigarette brand (Merit), while the plaintiff in the Boeken case smoked a full flavoured cigarette (Marlboro). In selecting these two cases we were interested to see if differences in the cigarette brand smoked by plaintiffs would alter how Philip Morris might seek to counter charges about product defect and safe cigarette research.

The transcripts of opening statements included 427 pages of material. Each transcript was reviewed by one of the authors (KMC) and statements about product defect claims, product testing, and safe cigarette research were excerpted into a separate smaller document. Excerpted statements from each case were subsequently coded into the following eight subject categories: (1) safe cigarettes and defective products; (2) nicotine control/manipulation; (3) nicotine addiction; (4) consumer awareness of nicotine addiction and product risks; (5) safe cigarette research; (6) industry partnership with the public health community; (7) consumer acceptability; and (8) product testing. The first four subject categories relate to plaintiffs charges regarding the marketing of defective cigarettes, while the latter four coding categories relate to plaintiffs contention that the defendants failed to develop and market less hazardous cigarettes.

The coded, selected excerpted statements were shared with the other two authors (AB, CD) who then reviewed the original full transcript of each opening statement to ensure that the excerpted material was accurate and fairly reflected the statements made by defendants about product defect claims, product testing, and safe cigarette research. Any inconsistencies in coding of statements missed in the initial review were discussed among the three authors so that the material presented in this paper is based on the consensus of the three people who independently reviewed each transcript.

RESULTS

Table 1 displays the arguments made by defendants in their opening statements in each of the four cases on the following four topics that relate to cigarette companies alleged marketing of defective products: (1) safe cigarettes and defective products; (2) control and manipulation of nicotine in cigarettes; (3) nicotine addiction; and (4) consumer awareness of nicotine addiction and product related health risks. As is evident in table 1, the arguments made by defendants were consistent across all four cases and, in the two class action lawsuits, were consistent between the different tobacco companies. In each case, the defendants acknowledged that there was no such thing as a safe cigarette, but argued that while cigarettes were an inherently dangerous product there was nothing in the design of cigarettes that make them even more dangerous than they might otherwise be. For example, in opening arguments in the Blankenship case jurors were told, “Just because a product is risky does not make it defective. In our society there are lots of risky products that are not defective. Guns can shoot you, knives can cut you, and we all unfortunately know what eating too much fatty food can do to you. But that doesn’t make those products defective. Those are inherent risks of those products.”¹⁸

Defendants argued that cigarettes were designed for taste, not nicotine delivery. Variation in nicotine delivery between products or within the same brand over time was attributed to efforts made to satisfy consumers’ demand for lower tar cigarettes that taste good. As an illustration of these arguments, jurors in the Engle case were told, “…blending tobacco is an art; it’s not nicotine driven science…the tar deliveries are a result of blend…nicotine follows tar…companies blend for taste because that’s what smokers want.”^19,20 On the question of nicotine addiction, the defendants argued that while nicotine was an important factor in smoking behaviour, there was nothing done to cigarettes that would prevent someone from quitting. In the Engle case jurors were told, “…there is more to smoking than just nicotine…46 million people have quit smoking…most by simply deciding to quit.”^19,20

In each case the defendants argued that the plaintiffs knew in advance that quitting smoking could be difficult and that the inherent health risks of cigarette smoking were well known, therefore there could be no fraud. In the Schwarz case, the plaintiff had started smoking when she was 18 years old. In opening arguments jurors were told, “She started smoking as an 18 year old. She knew it was dangerous.”

Table 2 displays arguments made by defendants in each of the four cases on the following three topics: (1) research undertaken by cigarette companies to develop less hazardous cigarettes; (2) cooperation between cigarette companies and members of the public health community to develop a less hazardous cigarette; and (3) efforts made by cigarette companies to develop a safer cigarette. As illustrated in table 2, the arguments presented on these subjects, all of which pertain to the alleged failure by cigarette companies to develop and market less hazardous cigarettes, were generally consistent across all four cases and between different companies. In each case the defendants emphasised in their opening statements the amount of money that had been expended on research to develop less hazardous cigarettes. In the Engle case, jurors were told, “…many resources were devoted to developing safer cigarettes with lower tar and nicotine levels.”^19,20 The defendants described research on cigarette design as being complex and highly technical. In each case, the defendants used a chart illustrating the reduction in machine measured tar levels of cigarettes that occurred between the mid 1950s and late 1990s. The defendants provided a detailed chronology and description of specific design alterations introduced by cigarette companies with the implication that these design modification contributed to a reduction in the inherent risks of smoking by lowering tar levels. In the Engle case jurors were told, “…incredible success was achieved in lowering tar and nicotine… Dr. Wynder believed when all this began that a 40% reduction in tar would be significant…the reduction in tar doesn’t represent 40%...it represents almost 70%.”^19,20

In each case, the defendants referred to the National Cancer Institute’s Tobacco Working Group as a partnership between the federal government and the tobacco industry to develop a safer cigarette. For example, in the Engle case, jurors were told, “They [cigarette companies] went about trying to remove or lower some of the components or compounds in smoke. Initially on their own, then came a period of time when they did it in a partnership. You may be surprised to learn that this partnership was with the United States Government. It was called the TWG or Tobacco Working Group…the goal of the TWG was to pursue all efforts to create a safer cigarette.”^19,20

In each case defence attorneys told jurors that additives used in cigarettes were common to other foods, were divulged to the federal government, and were routinely tested and found to be safe. For example, in the Schwarz case jurors were told, “All of their ingredients have been disclosed to the government…the federal government has never requested removal of any ingredient in Philip Morris cigarettes.”¹⁷

A common theme in each case was the idea that in order to have a safer cigarette it must be acceptable to a large number of consumers. For example, in the Engle case jurors were told, “It’s very important that we develop a low tar product that will have large acceptance by a vast majority of the people who smoke. Because if you develop a low tar product…where only 1 or 2 percent of smokers will use, you really haven’t done much.”^19,20

DISCUSSION

The findings from this study reveal that cigarette companies’ counter arguments to charges that their products were defective and that they should have done more to research and market less hazardous tobacco products have been presented consistently across different cases and by different companies. Essentially the arguments boiled down to three claims. First, smoking is risky, but nothing the cigarette companies have done has made cigarettes more dangerous than might otherwise be the case. Second, nothing the cigarette companies have done or said has kept anyone from stopping smoking. Third, cigarette companies have spent lots of money and have worked with the public health community to make the safest cigarette acceptable to the smoker.

After the verdict in the Engle case, in which one of us (CD) served as co-counsel for the plaintiffs, it does appear that Philip Morris has been increasingly willing to acknowledge some mistakes in how the company defended smoking in the face of mounting evidence about health risks and nicotine addiction. The companies’ scorched earth approach to defending their actions, which characterised the legal strategy in the Engle case and all preceding cases, appears to have been softened in subsequent cases, perhaps as a strategy to defuse the impact of incriminating internal documents and the testimony of company whistleblowers. Whatever the reason for the change in legal strategy, in the Blankenship, Boeken, and Schwarz cases, Philip Morris acknowledged that they had made some mistakes when it came to publicly admitting cigarettes caused disease and could be addictive.^16–18 For example, in the Boeken case the attorney for Philip Morris told the jury, “Looking back, these choices by Philip Morris and the tobacco companies were the wrong choices. They fell out of step. They fought too long. They were stubborn. They did a poor job of listening.”¹⁶ However, while admitting to some mistakes, attorneys representing cigarette companies argued that their actions had no impact on smokers since the risks of smoking were already well known to the public at large and the health message about smoking was still getting through to consumers as evidenced by declining smoking rates. This argument is illustrated in the opening statement in the Schwarz case, where the defence attorney instructed the jurors, “…there was no fraud. You can’t defraud somebody by hiding from them something they already know about.”¹⁷

We believe that there are a number of weaknesses in the arguments used by cigarette companies to defend themselves against the accusation that their products were and are defective. First, cigarette companies are susceptible to charges about how they have designed their products for nicotine delivery, not just taste. Studies are just now emerging in the scientific literature that speak to the question of how different cigarette design features, including additives, influence nicotine delivery.^{4–7,21–24} The safety of additives is also now beginning to be questioned more directly.^24–26 For example, a recent paper by Stanfill and Ashley²⁵ reported on potential carcinogens generated by burning chemical additives used in commercial cigarettes.

In the courtroom, defendants have argued that product additives are only a concern if they are found to add to the already toxic nature of cigarette smoke. For example, in the Schwarz case juror were told, “The point is that the hazards of cigarette smoke are in the burning tobacco-ingredients don’t matter. They don’t increase the hazards. They don’t decrease the hazards.”¹⁷ However, this argument neglects to consider that an additive does not need to necessarily contribute to the toxicity of cigarette smoke to make smoking more dangerous. Flavourings like menthol which are added in part to make cigarettes taste a certain way,²⁴ chemicals (like ammonia) which are added again, at least in part to make smoke less harsh to inhale,^22,23 and design alternations like filter vents intended to make it easier to draw the smoke through the tobacco column all contribute to making cigarettes smoking more acceptable to the consumer, thereby discouraging smoking cessation.⁷

In each case we reviewed, the defendants reminded jurors that the only safe cigarette is one that is acceptable to the consumer. For example in the Blankenship case the defence reminded jurors, “If a cigarette doesn’t taste good to smokers, they won’t trade for it regardless of what the safety benefits might be of it.”¹⁸ Jurors were also told, “…we make the safest cigarette that is acceptable to the smoker.”¹⁸ In the Schwarz case jurors were told, “Philip Morris is doing everything it can to work with the public health community to try to make a better, a less addictive cigarette.”¹⁷

We do not think these arguments are valid. A safer (not safe) cigarette is one that is not especially acceptable to smokers. In other words, a cigarette that is less satisfying and more difficult to inhale, encouraging users to cut down or quit instead of continue smoking, would be far safer than one that is made to be easier to inhale and more acceptable to the smoker to continue using.^10,11 Replacing commercially viable high tar cigarettes with new lower tar versions designed to make it easier for the smoker to take more frequent and bigger puffs can be seen as a step towards making cigarettes more, not less, hazardous. The fact that many smokers switched to filtered and lower tar brand cigarettes under the mistaken belief that these cigarettes were less risky than their higher tar counterparts illustrates how consumers have been mislead by cigarette companies.⁹ Plaintiff attorneys should consider stealing a page from the defendants’ legal strategy by acknowledging that public health officials were mistaken when they encouraged smokers to switch to filtered in the 1950s and 60s and low tar cigarettes in the 1970s. However, the mistake can be attributed to the actions of the cigarette companies that chose not to divulge what they knew about how alteration in cigarette design would contribute to changes in how people would smoke the new filtered and lower tar cigarettes.^{4–9,12–14}

What accounts for the largely successful track record of cigarette companies defending themselves against charges that they have marketed a defective product and could have done more to make cigarettes safer? For one thing, it appears that defence attorneys have successfully persuaded jurors to accept the premise that filtered and reduced tar cigarettes are better or at least no worse than the higher tar, unfiltered cigarettes which they replaced.^27,28 It is noteworthy that the cigarette companies have relied primarily on their own scientists to present the evidence to refute product defect charges. Nearly all of these scientists have training in toxicology and are comfortable presenting data on a wide array of technically complex tests that relate to smoke chemistries and animal testing. These scientists all tend to tell the same story about how cigarette companies have invested millions of dollars to reduce tar yields and make cigarettes less toxic.^29–31 Because of their technical competency these witnesses are likely to be perceived as highly credible experts. Plaintiffs on the other hand have tended to rely on industry whistleblowers^32–37 whose motivation for testifying is often challenged in court, or psychologists,³⁸ medical doctors,^39–41, and/or public officials^42,43 who have little direct experience in designing and testing cigarettes and who may disagree on what constitutes a safer cigarette.

As a counter argument to the cigarette companies’ claim that they have worked hard to make their products safer, plaintiff attorneys should focus on how cigarette design changes have actually made smoking more acceptable to smokers and thereby discouraged smoking cessation.^7,10,11