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Tuesday, October 31, 2006

The Philip Morris Argument: When Life Imitates Law

I don't have any thoughts to offer at present on punitive damages, a la Dan (you know someone has something profound to say if the title involves the word "whither").  But I can't resist offering this snippet from an AP story on today's oral arguments in the punitive damages case:

Williams, according to his widow, never gave any credence to the surgeon general's health warnings about smoking cigarettes because tobacco companies insisted they were safe. Only after falling sick did Williams tell his wife: ''Those darn cigarette people finally did it. They were lying all the time.''

See also the Oregon Supreme Court opinion here for more details. 

Williams died in 1997.  So, taking his claims as true, Williams adamantly refused to believe the Surgeon General and a raft of other voices, speaking out on the medical consequences of tobacco use not only as of the date of the first S-G warning but well before that; he actually explicitly told family members that the cigarette companies would not sell the product if it were dangerous; and only on his deathbed, and for reasons that are not clear to me (after all, tobacco use is a leading cause of lung cancer, but not the sole cause), did he conclude, and again helpfully say out loud in the presence of witnesses, that "those darn cigarette people finally did it.  They were lying all the time."  Not even that they had wronged him, mind you; but that they had done so through an actionable tort of fraud.

Now, I don't mean to be callous, and about the tragic nature of both Williams's death and Philip Morris's shared culpability I hold little doubt.  But surely there is good reason not to believe a word of this.  Another example of the ways in which litigants, forcing the past through the gauntlet that any set of facts must traverse in order to state a successful legal claim, create a narrative that bears about the same resemblance to lived reality that a dressmaker's dummy does to a human being.  One might feel much the same way about people's descriptions, in lawsuits, of their injuries.  Not that one necessarily disbelieves that they have suffered injuries, but their descriptions of those injuries often sounds suspiciously as the injury fits juridical categories rather than lived experience.  (Nor is this all about plaintiffs, of course; the narrative shaped on behalf of defendant employers in defense of their alleged conduct in job discrimination cases is also often stunningly other-worldly.)

If I were an alien from another planet, sent to report back on the nature of human existence, I think the last place I would look would be the law reports.  The novels of Richard Russo, maybe.  But law reports, never.      

Posted by Paul Horwitz on October 31, 2006 at 04:12 PM in Current Affairs | Permalink


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» Round-Up from SCOTUSblog
At Legal Times online, Tony Mauro has this report about today's argument in Philip Morris. CNN.com's Bill Mears filed this report about the same argument (both via How Appealing). Paul Horwitz comments on the argument here at PrawfsBlawg. This morning,... [Read More]

Tracked on Oct 31, 2006 5:08:11 PM

» November 6 roundup from Overlawyered
Election day is tomorrow; the roundtable is still going on our sister website. [Point of Law] One reason the election is important: judicial nominations. Bill Clinton appointed 378 judges; Bush, in six years, 266, with... [Read More]

Tracked on Nov 6, 2006 8:12:00 AM

» The dressmaker's dummy from PointOfLaw Forum
Ted, at Overlawyered, has already briefly linked to this excellent piece by Paul Horwitz on an instance of conveniently recollected testimony in Williams v. Philip Morris, the punitive-damages cigarette case. Horwitz's concluding passage, however, seem... [Read More]

Tracked on Nov 8, 2006 11:29:36 PM


I don't think the statements here fall into the category of inherently incredible.

Posted by: Jim Green | Nov 6, 2006 4:14:46 PM

Jim, one can't evaluate the demeanor of a witness from a distance; that's why appellate courts try to avoid weighing credibility. But one can certainly evaluate the inherent credibility of a statement. (If one couldn't, democracy would be rather difficult, wouldn't it? We'd have a hard time selecting candidates if we were intellectually required to assume that any statements they make, no matter how outlandish, were true merely because we don't know the candidates and haven't had face-to-face conversations with them.)

Posted by: David Nieporent | Nov 6, 2006 3:09:38 PM

Question: how the heck did this get into evidence anyway? Isn't the hearsay rule supposed to keep such unreliable uncross-examinable statements out? Yes, yes, "not offered for the truth of the matter asserted," but the real matter being asserted here is "I smoked because I was deceived by the tobacco companies (though I have acted differently with respect to others)."

We hear so much about the "light cigarette fraud," yet, even as new evidence has come out about the inadequacy of the FTC's mandated tar ratings, the market share of light cigarettes has not declined.

Posted by: Ted | Nov 4, 2006 12:01:46 PM

It always frustrates me when people weigh the credibility of testimony from such distances. Even appellate courts don't weigh credibility yet here we have the opinions of those who could hardly be further removed from the case calling people liars. Not because they know those people or have heard them talk about the issues but because the testimony doesn't fit within and reinforce their own cognitive frames. Surely out of the tens of millions of smokers over the decades there are those who believed cigarette makers claims which are the only proven lies in this case.

Posted by: Jim Green | Nov 2, 2006 2:16:57 PM

Wow, its like one of those fabricated deathbed conversion stories.

Posted by: Patrick | Nov 1, 2006 4:43:51 PM

As they say in the movies, never underestimate the power of denial. I'm no smoker, but I knew plenty of smokers in the 1980s and early 1990s who firmly believed that C. Everett Koop was full of it. Anyone truly addicted to smoking and who had an intellectual interest in research would have no trouble finding anecdotal evidence of chainsmokers living to 90 or 100 and dying of natural causes (not smoking related). I don't so easily dismiss the testimony.

Posted by: Matthew Fletcher | Nov 1, 2006 8:30:16 AM

Williams's widow's claim is especially suspicious given that Williams taught his children not to smoke.

There was a fraud in this case, but it's far from clear that Philip Morris was the perpetrator.

Posted by: Ted | Oct 31, 2006 10:13:06 PM

Aye -- and isn't this just the sort of ill that notice pleading was supposed to eliminate? We still have to "plead" the magic formulas -- only now we can wait until after discovery to do so.

Posted by: Rick Bales | Oct 31, 2006 4:32:55 PM

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