Apportioning Responsibility in Tobacco Cases
by
Andrew Bard Schmookler *

As the tobacco companies' position becomes increasingly indefensible, some commentators are still asserting that the nicotine industry should be able to maintain its immunity to liability claims by individuals. The states may be able to sue successfully for their tobacco-related Medicare costs, this argument goes. But individuals should remain unsuccessful in the courts because it has long been known that smoking is bad for one's health, and people are responsible for their own choices.

This reasoning lets the tobacco companies too easily off the moral and legal hook.
I'll concede that individual smokers must bear responsibility for their own choices. (Let's disregard for this discussion the industry's having targeted minors, people whom we regard as less than fully responsible for their choices, in order to lure them into nicotine addiction.) But the logical fallacy is to leap from the idea that the smoker is responsible to the conclusion that therefore the industry is free of responsibility.

Responsibility is not an all-or-nothing thing.

The hit man is certainly responsible for the murder he commits, but so is the guy who hired him.

The rioters can be prosecuted for their mayhem, but "incitement to riot" is also --rightly-- considered a crime.

And when it comes to the use of deception and manipulation to seduce others into making wrong choices, we in the audience of Shakespeare's Othello think Othello justified when, while also blaming himself for his unjust killing of the fair Desdemona, he runs his sword through and deceitful Iago.

The tobacco company is in the position of Iago.

For decades, the evidence increasingly reveals, it worked to create false beliefs in people in order to manipulate them into behavior that served the companies even at the cost of the welfare of those making their choices.

It is only partly true that everyone "knew" what they needed to know about tobacco and health to make responsible choices. As with responsibility, so also is knowing a matter of degree. True, there were scientific studies and then warning labels on cigarette packs. But there were also doubts, deliberately and deceptively planted. And these doubts had effects on what people "knew" and thus on the decisions they made.

If there were no such effects, then what was the point of the industry's spending so many millions disseminating their lies? That whole campaign of deliberate disinformation --about tobacco's addictive nature and its health effects-- would have been a foolish waste of money. And whatever else the tobacco honchos may be, they are not fools when it comes to the spending and making of their money.

The tobacco industry's deception had effects, and these effects hurt the people they deceived. We as a society cannot afford to say that those who perpetrated such destructive deception have no moral or legal responsibility to those whom they willfully injured.

Okay, you may say, so they are responsible, but if the smokers and the tobacco companies are both responsible, how do we handle the awards in suits in a situation as ambiguous as this? Do we just split the damages 50-50, or 25-75, or vice versa?

Wouldn't any apportionment be arbitrary?

Good questions, and I have a proposed answer.

What is needed is that we make an assessment: by what proportion would the sales of cigarettes in America have been reduced if the tobacco industry had been honest instead of deceitful about the health-related effects of their products? Not an entirely easy question to answer, perhaps, but an approximate judgment can be made. After all, it turns out that the industry itself contemplated taking the honest course, and rejected it because of their calculations of how much business it would cost them. Perhaps we can find their figures and use them.

Once we have such an estimate, we can solve the problem of apportionment. Whatever ----the proportion of cigarette consumption that is the direct result of the industry's deception, that can be taken as a good index of how much of the damage done by cigarettes to people's health can be laid at the door of the liars rather than of those who were influenced by the lies when they chose to smoke.

That percentage, then, becomes the key to assessing damages (other than punitive) for which tobacco companies should be held liable by individual smokers. If the total damages to an individual are $1 million, and the deception is estimated to have boosted sales by 10%, the company's responsibility is $100,000 in that case.

In a morally sound society, people must pay the consequences of their own bad decisions. But that includes not only those who foolishly made self-destructive choices. It also includes those who selfishly --for their own profit-- manipulate other people to do those foolish and self-destructive things.

*Andrew Bard Schmookler is the author of Living Posthumously: Confronting the Loss of Vital Powers, just published by Henry Holt and Company.