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Rose Cipollone started smoking in 1942, when she was 16 years old. Each morning, on her way to Washington Irving High School in Manhattan, she bought three Chesterfields at the candy store near the el station at 116th Street and Third Avenue. Smoking them, she would later explain, made her feel like the movie stars she read about in True Story and Photoplay.
''I thought that it was cool to smoke, and grown up, and I was going to be glamorous or beautiful,'' she would recall. ''I thought I would be Joan Crawford or Bette Davis.''
Forty-two years after she began smoking, Mrs. Cipollone, who had lived in Little Ferry with her husband since 1961, died of lung cancer. For most of that time, she had smoked more than a pack of cigarettes a day - first Chesterfield; later, as fashions changed, L & M, Virginia Slims, Parliament and True.
Although Mrs. Cipollone is dead, a lawsuit that she brought, against three of the country's largest cigarette manufacturers, remains very much alive in Federal District Court in Newark. . . .
A sure sign of growing interest in these lawsuits, legal experts say, is the increasing willingness of lawyers to take on the cases. The expenses of the lawyers can be recouped only if they prevail in court or get settlements.
In addition to the cases in New Jersey, there are already suits in New York, Texas, Tennessee, Massachusetts, West Virginia and several other states, and many more seem certain to to be filed if even one of the present suits prove successful.
''You can use whatever analogy you want - flies to honey, vampires to blood - but we've got a glut of lawyers out there just looking for someone to sue,'' said John F. Banzhaf 3d, a professor at George Washington University Law School.
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If there were any hazard in cigarettes manufactured by this defendant, which this defendant denies, Rose D. Cipollone was on notice of the same and able to protect herself. If Rose D. Cipollone consumed cigarettes, she did so solely by reason of her own choice.Liggett Group court papers in the Cipollone case. It's always instructive to look back once in awhile. This 1985 NYT article is a perceptive look at Cipollone and the litigation climate of the day.
The Washington Legal Foundation, a self-described "advocate for freedom and justice," published one of its occasional quarter-page ads in the New York Times the other day. The headline: "Bull Market for Plaintiffs’ Lawyers."
"At least one industry—Litigation, Inc.—is expanding at a fast pace," the group's chairman, Daniel J. Popeo, declared in the May 4 op-ed ad. He characterized this newly-invented industry as a "parasitic," "unregulated," "multi-billion-dollar" business in "pursuit of riches [that] restrains U.S. economic recovery."
The ad appeared under a logo, "IN ALL FAIRNESS". But fairness to those who read Popeo's rant requires some background. I have in mind the long-standing ties that he somehow overlooked between WLF and the tobacco industry. . . .
It is thanks primarily to plaintiffs' lawyers who sued tobacco companies that damning, truth-telling internal documents that would otherwise have remained secret if not destroyed have surfaced in recent decades. . . .
A 1968 Philip Morris draft memo, for example, revealed an industry-wide "gentleman's agreement" barring cigarette companies from doing in-house biological research on the health hazards of smoking. The memo became public 20 years later in U.S. District Court in Newark, N.J., during the trial of a landmark smoker-death lawsuit titled Cipollone v. Liggett Group. It was among two dozen highly damaging industry documents that plaintiff's lawyer Marc Z. Edell and colleagues Cynthia Walters and Alan Darnell had obtained during years of costly pre-trial discovery and put into the public record. (I covered the nine-week 1988 trial for the Washington Post.)
The 32-year-old WLF and the tobacco industry have long been on the same wavelength regarding legal issues. When WLF attacks plaintiffs' lawyers as a class, it automatically targets those lawyers whose lawsuits have repeatedly brought to light devastating facts about the industry's conduct. . . .
In the five years 1995-1999, Philip Morris gave WLF $1,250,000; in the four years ending in 1998 the Tobhacco Institute donated an additional $125,000. (Click here for funding details.)
In 1996, the R.J. Reynolds Tobacco Company Foundation made an "unrestricted" $75,000 grant to WLF. . . .
Just in 2008, Philip Morris International sold 850 billion cigarettes outside the United States. Its profit was $16.3 billion—40,750 times the award that the Cipollone family—and their lawyers—never saw. PMI was not pursuing riches? Perhaps WLF will buy another op-ed ad so Popeo can tell us what else it was pursuing. Justice, maybe?
Plaintiffs' lawyers have not been alone in going after tobacco. State attorney generals have . . .
The WLF ad makes no mention of tobacco. It is silent, too, about corporate lawyers who defend the industry and, more broadly, pharmaceutical and other companies that have committed crimes or engaged in grave misconduct. The silence invites an inference that, in stark contrast to those "parasitic" plaintiffs' lawyers, corporate defense lawyers are honorable professionals, gentlemen through and through. That's not how Kessler saw tobacco lawyers.
"At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes," Kessler wrote. Both in-house counsel and outside law firms "devised" and "coordinated" strategy, directed scientists' research in favor of the industry, destroyed documents and "took shelter behind baseless assertions of attorney client privilege."
It should be noted that WLF gets significant funding from right-wing foundations, including those in the names of Lynde & Harry Bradley, John M. Olin, and Sarah Scaife. And perhaps this should be noted, too: advocacy ads that bring desperately needed revenue to news organizations can pollute the well of public knowledge.
[A]dvocacy ads that bring desperately needed revenue to news organizations can pollute the well of public knowledge. Morton Mintz, in a scathing rebuke of the Washington Legal Foundation's May 4 anti-trial lawyer ad in the NYT.
In fact, the most persuasive exhibits in the case were no secret at all: magazine ads that the tobacco companies published in the 1950s and '60s. Among them were ads that appeared in 1954 issues of LIFE, in which such Hollywood stars as Barbara Stanwyck and Rosalind Russell gave testimonials for L&M's new "miracle product," the "alpha cellulose" filter that is "just what the doctor ordered." Several other brands made similar claims at the time in response to increasing nervousness about smoking and health. R.J. Reynolds said, "More doctors smoke Camels than any other cigarette."
Cipollone chose L&M, she explained before her death, partly because of the testimonials by celebrities in the company's ads. Said she: "I remember they used to be so glamorous. They always used to wear evening gowns." Defense lawyers sought to establish that Cipollone was an intelligent woman who made a decision to keep smoking despite plenty of signs that it was risky. As evidence, they introduced 115 articles from TIME, 47 articles from Reader's Digest and even lyrics from popular songs like the 1947 hit Smoke, Smoke, Smoke, which included the words "Puff, puff, and if you smoke yourself to death."
What was difficult for Cipollone's lawyers to prove was that she was helplessly addicted. . . .
The biggest impact of the Cipollone verdict may be political rather than financial. Concedes Maxwell, the Philip Morris chairman: "The industry suffered some public relations damage during the trial. By describing the documents as secret, the plaintiffs made it sound as though we were doing something sinister or underhanded." The case could inspire Congress to enact new limits on tobacco -- for example, an extension of a smoking ban to all domestic airline flights instead of just shorter hauls. Predicted Representative Robert Torricelli, a New Jersey Democrat: "The impact in Congress, state legislatures and town halls is going to be rather profound." If that is so, Cipollone's late-awakening rebellion against tobacco is likely to endure longer than she could have imagined.
JUSTICE STEVENS delivered the opinion of the Court with respect to Parts I, II, III, and IV, concluding that 5 of the 1965 Act did not [505 U.S. 504, 505] preempt state-law damages actions, but superseded only positive enactments by state and federal rulemaking bodies mandating particular warnings on cigarette labels or in cigarette advertisements. This conclusion is required by the section's precise and narrow prohibition of required cautionary "statement[s]"; by the strong presumption against preemption of state police power regulations; by the fact that the required 4 warning does not, by its own effect, foreclose additional obligations imposed under state law; by the fact that there is no general, inherent conflict between federal preemption of state warning requirements and the continued vitality of common-law damages actions; and by the Act's stated purpose and regulatory context, which establish that 5 was passed to prevent a multiplicity of pending and diverse "regulations," a word that most naturally refers to positive enactments, rather than common-law actions. Pp. 517-520.
JUSTICE STEVENS, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR, concluded in Parts V and VI that 5(b) of the 1969 Act preempts certain of petitioner's failure-to-warn and fraudulent misrepresentation claims, but does not preempt other such claims or the claims based on express warranty or conspiracy. . . .
To summarize our holding: the 1965 Act did not preempt state-law damages actions; the 1969 Act preempts petitioner's claims based on a failure to warn and the neutralization [505 U.S. 504, 531] of federally mandated warnings to the extent that those claims rely on omissions or inclusions in respondents' advertising or promotions; the 1969 Act does not preempt petitioner's claims based on express warranty, intentional fraud and misrepresentation, or conspiracy.
To summarize our holding: the 1965 Act did not preempt state-law damages actions; the 1969 Act preempts petitioner's claims based on a failure to warn and the neutralization [505 U.S. 504, 531] of federally mandated warnings to the extent that those claims rely on omissions or inclusions in respondents' advertising or promotions; the 1969 Act does not preempt petitioner's claims based on express warranty, intentional fraud and misrepresentation, or conspiracy.Supreme Court Justice Stevens, in the 1992 Cipollone case; he may have to overturn himself in Good.
LEAD: Members of Congress said yesterday that a New Jersey jury's verdict finding a cigarette manufacturer liable in the lung-cancer death of a woman could revive prospects for a wide range of Federal anti-smoking legislation.
Members of Congress said yesterday that a New Jersey jury's verdict finding a cigarette manufacturer liable in the lung-cancer death of a woman could revive prospects for a wide range of Federal anti-smoking legislation.
Even as the two sides in the trial argued over the meaning of the decision, some members of Congress said it had provided an important psychological victory for opponents of smoking that could affect the debate about the issue on Capitol Hill. . . .
At a news conference in Manhattan, the general counsel of Lorillard, Arthur Stevens, said the jury had rejected the theory that the internal company documents proved the existence of a conspiracy. ''There were no smoking guns among the papers,'' he said.
Mr. Stevens excoriated Judge H. Lee Sarokin of Federal District Court in Newark, who presided over the trial, saying he had been biased in his statements. ''He demonstrated in his dismissal opinion an extreme bias and practically laid out the guidelines for what the jury could find,'' Mr. Stevens said. Finding on Conspiracy Charge
Question
Do federally mandated cigarette warnings pre-empt the Cipollones' common law claims against cigarette manufacturers?
Conclusion
In a complicated 7-to-2 decision, the Court held that federally mandated warnings do not bar smokers from suing manufacturers under state personal-injury laws. The justices ruled that such suits cannot be based on claims that cigarette advertising failed to warn smokers of smoking dangers. But the justices also ruled that individuals may press claims alleging that the tobacco companies made fraudulent or inaccurate statements in their advertising or that the companies conspired to mislead people about the health hazards of smoking.
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IN THE SUPREME COURT OF THE UNITED STATES
THOMAS CIPOLLONE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF ROSE D. CIPOLLONE, Petitioner v. LIGGETT GROUP, INC., ET AL.
No. 90-1038
October 8, 1991