American Tobacco Litigation: Lessons for European Product Liability
| Author | Joshua Horgan |
| Position | LL.B (Law and European Studies), University of Limerick; LL.M candidate (European and Comparative Law) |
| Pages | 28-43 |
AMERICAN
TOBACCO
LITIGATION:
LESSONS
FOR
EUROPEAN
PRODUCT
LIABILITY
JOSHUA HOGAN*
Smoking
is
a
custom
loathsome
to
the
eye,
hateful
to
the
nose,
harmful
to
the
brain,
dangerous
to
the lungs,
and
in
the
black,
stinking
futme
thereof
nearest
resembling
the
horrible
Stygian
smoke
of
the
pit
that
is
bottomless.'
In
the
area
of
product
liability,
tobacco
litigation
currently
presents
one of
the
most
interesting opportunities
in
the
comparison
of
legal
doctrines
between
and
among systems
of
law.
Is
it
not
astonishing that
although
the
doctrine
of
product
liability
has
expanded
remarkably
over
the
past
50
years,
the
world's
most
dangerous consumer
product,
the
cigarette,
has
remained essentially
untouched?
Cigarettes
cause
millions
of
deaths
every
year, including
more than
400,000
in
the
United
States
2
and
500,000
in
the
European
Union.
For
years,
personal
injury
plaintiffs
in
the
US
were
unsuccessful
in
their
efforts
to
hold
cigarette
companies
liable
in
tort
for
the
diseases
that
cigarettes
caused
4
However,
from
the
mid-1990s
onwards
the
trend
changed.
Both smokers
and
passive
smokers won
some
lawsuits.
In
addition
to
this,
the
50
States
and the
tobacco industry
entered
into
agreements
obliging
the
tobacco industry
to
pay almost
$250
billion
to
cover
some
of
the
expenses connected
to
medical
treatment
of
tobacco
related diseases.
5
The
American experience has inspired
plaintiffs
in
many
other countries
and
lawsuits
against
the
tobacco
industry
are
being
raised
or
planned
in
Canada,
several
Latin-American
countries, Ireland,
England,
Finland, Germany,
the
Netherlands, France,
Spain, Israel
and
Australia.
6
"
LL.B
(Law
and
European Studies), University
of
Limerick;
LL.M
candidate (European
and
Comparative
Law), University
of
Limerick.
James
I,
A
Counterblaste
to
Tobacco
(London,
1604).
Sugarman,
"The
Smoking War
and
the
Role
of
Tort
Law"
in
Cane
and
Stapleton
eds.,
The
Law
of
Obligations,
Essays
in
Celebration
of
John
Fleming
(Clarendon Press,
1998),
at
343.
3
Ryan,
"Tobacco
control
issues
in
the
European
Union"
(2000)
6(1)
Eurohealth.
It
is
estimated
that more than
17,000
Irish
people
die
each
year
due
to
smoking-related
illnesses.
4
Galligan,
"Litigation
and
Compensation:
A
Primer
on
Cigarette Litigation
under
the
Restatement
(Third)
of
Torts:
Products Liability"
(1998)
27
Sw
UL
Rev 487.
5
Kjonstad,
"Tort
Liability
for
the
Tobacco Industry"
(2000),
at
73,
in Papers
from
PEOPIL
Paris
Conference,
16-17
June
2000
(visited
8
February
2002).
6
Ibid.,
at
73.
The Irish government
has
consulted
with Steve
Berman,
who
represented
14
States
in
a
suit
against
the
American
tobacco
industry,
which eventually
led
to
a
settlement
of
over
$200
billion,
in
relation
to
the possibility
of
taking
a
similar
suit
in
Ireland.
See
Fahy,
Q
2002 Joshua
Hogan
and
Dublin University
Law
Society
American
Tobacco
Litigation
This
article
will
compare
basic
concepts
in
European
and
American
product
liability
law,
inquiring
into
points
of
contact
and contrast, with
reference
to
how those
concepts correspond
with
underlying
realities.'
It
is
hoped
that
a
comparative analysis
that
draws
upon
the
rich
repository
of
ideas,
arguments
and
potential solutions
formulated
in
American
courts
may
provide
a
forecast
of
potential
issues
concerning tobacco
litigation
in
the
European context. The
Liability
for
Defective
Products
Directive
8
(hereinafter 'the
Directive')
is
a
remarkable piece
of
legislation
designed
to approximate
the
laws
of
the
Member
States
on
product
liability.
It
should
be
remembered
that
in
the
very
richness
of
its
rationales,
American
product
liability
law
exhibits
many
of
the
internal
tensions
present
in
bodies
of
law
applicable
to
diverse
communities,
9
and
is
therefore
especially relevant
for
the
operation
of
a
nascent
European
system
that
straddles
both
common
and
civil
law
jurisdictions.
While
the
Directive
supplements rather
than
replaces
the
existing
national
remedies,
0
the
strict
liability regime
that
it
introduces,
and the
similarities
it
bears
to
the
American regime,
make
it
likely
to
be
fundamental
to
future
European
tobacco litigation.''
As
the
process
of
comparison
proper
can
start
only
when
reports
on
the different
legal
systems
in
question
have
been
completed,
12
this
paper
begins
with
a
brief
sketch
of
the
current
state
of
American
and
European
product
liability
law.
Second,
the
particular
issues
which
have
proven
problematical
in
the
United
States
in
relation
to
liability
for
cigarettes
will
be
examined.
Similarities
and
differences
in
the
American
and
European
systems
will
be
set
out
so as
to
determine
what
the likely
European
response
to
these
issues
will
be.
Finally,
this paper
will
reflect
on
howk
differing
American
and
European conceptions
of
the
role
of
torts
liability
in
society
may affect
future
tobacco
litigation.
"US
lawyer meets
Minister
about
suing
US
tobacco
firms"
The
Irish
2001.
In
1997,
the
English
Law
Commission published
a
Consultation
Paper
proposing
that
the
National
Health Service
be
given the
right
to
recoup
its
costs,
arguing that the
tobacco
industry
is
being
unduly
enriched
by
NHS
funds.
Law
Commission, Damages
for
Personal
Injury:
Medical,
Nursing
and
Other Expenses
(Stationery
Office,
1996).
See
Leech, "Recoupment
of
NIS
Medical
Treatment
Costs
after
Compensation
Claims"
(1997) 147
New
Law
J663.
7
Shapo,
"Comparing
Products
Liability: Concepts
in
European
and
American
Law"
(1993)
26
Cornell
Int'l
L
J
280.
,
Council
of
25
July
1985
on
liability for
defective
products,
OJ
L307,
12
November
1988,
amended
by
Council
Directive
99/34/EC,
OJ
L283,
10
May
1999.
9
Shapo,
loc.
cit.,
at
280.
10
McMahon and Binchy,
Irish
Law
of
Torts
(2 d
ed.,
Butterworths,
1990), at
186.
"
To
date
however,
its
performance
has
been lacklustre
-
at
the
time
of
writing,
perhaps
only
thirty
cases
have
been
decided
in
national
courts
under
the
Directive,
with
a
further two being
considered
by
the
European
Court
of
Justice. The
ECJ
has
issued
two
rulings
on
the
Directive
in
actions
against France
(Case
Commission
v.
France
ECR
1-1)
and
the
United
Kingdom
(Case
Commission
v.
UK
ECR
1-2649).
12
Weir
trans.,
Zweigert
and
KOtz,
Introduction
to
Comparative
Law
(3
rd
ed.,
Oxford
University Press,
1998),
at
43.
2002]
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