Monday, October 14, 2002

Money for Puffing

A jury in California recently ordered Philip Morris to pay a whopping $28 billion settlement to a 64-year-old woman with lung cancer. She started smoking 50 years ago, and she blames her choice on the company's failure to warn her of the risk.

I'm not sure when the tobacco companies started putting health warnings on their products, so it might well have been less than 50 years ago. And it's also possible that the companies had internal studies indicating that smoking was even more damaging than was publicly known at the time, so I'll leave that to the jury as well. What really irks me about this and similar cases is the presumption that anyone who starts smoking is utterly incapable of stopping, regardless of what new information emerges. Nicotine addiction is regarded as a force so powerful that it erases all control and responsibility on the part of the addict. Yet there are probably millions of people who have stopped smoking over the last 50 years. No, it's not easy, but the difficulty doesn't erase the responsibility.

There's an old rule of common law known as the "last clear chance" doctrine that would seem to apply here. The paradigmatic case involves a victim who gets hit by a train while walking on the subway tracks. The victim should not have been there, but the train engineer nonetheless has a responsibility to stop the train if he sees the (potential) victim. If the engineer fails to take this "last clear chance" to stop the accident, then he (or his employer) will be held liable for at least part of the resulting damage. Normally, this doctrine is used to limit the contributory negligence of plaintiffs, thereby placing greater liability on defendants. But if you apply the same reasoning in the case of smoking, the doctrine points in the other direction. It seems to me that the smoker is in the position of the train engineer. Even if the tobacco company did something wrong (withholding relevant health information), the smoker herself had the last clear chance to prevent the damage. Shoot, she had the last *one hundred* clear chances to prevent the damage, even if we estimate that you can only try to stop smoking once every six months.

I'm not a lawyer, so perhaps I'm misinterpreting or misapplying the last clear chance doctrine. But my overall point can be made independently: your responsibility to do the intelligent thing, to take action to avoid becoming a victim, does not end just because somebody else has already done something wrong.

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