Litigation as Public Health Policy: Theory or Reality?

Rosenberg G.N. , The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991).

This analysis borrows from P.D. Jacobson Warner K.E. , “Litigation and Public Health Policy: The Case of Tobacco Control,” Journal of Health Politics, Policy & Law, 24 (1999): 769–804.

Rosenberg , supra note 1;.

Rosenberg G.N. , “The Real World of Constitutional Rights: The Supreme Court and the Implementation of the Abortion Decisions,” in Epstein L. , ed., Contemplating Courts (Washington, D.C.: Congressional Quarterly, 1995).

Rosenberg, a proponent of the constrained view, argues that the presumed political and social changes stemming from civil rights, abortion, and environmental litigation have been illusory. Rosenberg, supra note 1. Instead, Rosenberg concludes that changes in public opinion and action by elected officials, rather than court decisions, are required to engender significant social change. Id.

See also Rosenberg , “The Real World of Constitutional Rights,” supra note 3.

Rosenberg's conclusions and model remain controversial, however. For example, McCann criticizes the approach for ignoring “the many more subtle, variable ways that legal norms, institutions, actors and the like do matter in social life.” See McCann M.W. , “Causal Versus Constitutive Explanations (or, On the Difficulty of Being So Positive),” Law and Social Inquiry, 21 (1996): 457–82, at 472. For our purposes, Rosenberg's framework simply provides a useful starting point.

McCann M. W. , Regulation and the Courts: The Case of the Clean Air Act (Washington, D.C.: Brookings Institution, 1983);.

Scheingold S.A. , The Politics of Rights: Lawyers, Public Policy and Political Change (New Haven: Yale University Press, 1974).

Horowitz D.L. , The Courts and Social Policy (Washington, D.C.: Brookings Institution, 1977): at 257. Rosenberg studied the effects of judicial decisions in civil rights, abortion, and environmental cases. See

Rosenberg , supra note 1;.

Rosenberg , “The Real World of Constitutional Rights,” supra note 3.

Horowitz reached similar results in studying the effects of leading cases in police practices, education, juvenile justice, and the Model Cities program. See Horowitz , supra, at 357. Melnick studied environmental litigation as well as welfare, education for handicapped persons, and the food stamp program. See

Melnick R.S. , Regulation and the Courts: The Case of the Clean Air Act (Washington, D.C.: Brookings Institution, 1983);.

Melnick R.S. , Between the Lines: Interpreting Welfare Rights (Washington, D.C.: Brookings Institution, 1994).

Komesar N.K. , Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (Chicago: University of Chicago Press, 1994).

Portions of this and the next subsection are adapted from Jacobson Warner , supra note 2.

Christoffel T. , “The Role of Law in Reducing Injury,” Law, Medicine & Health Care, 17 (1989): 7–16. Parmet and Daynard also support the deterrent value of public health litigation on the theory that it forces the industry to make safer products or fewer unsafe products.

See Parmet W.E. Daynard R.A. , “The New Public Health Litigation,” Annual Review of Public Health, 21 (2000): 437–54.

Teret S.E. Jacobs M. , “Prevention and Torts: The Role of Litigation in Injury Control,” Law, Medicine & Health Care, 17 (1989): 17–22.

Of course, these industries' ability to hire top legal talent and spend lavishly to investigate cases and present highly compensated expert witnesses also affects how their cases are decided.

Affected industries claim that this litigation harms consumers by keeping safer products, particularly contraceptives, off the market. There is a large and contentious literature as to whether products liability litigation actually deters product development. See, e.g., Garber S. , “Product Liability, Punitive Damages, Business Decisions and Economic Outcomes,” Wisconsin Law Review (1998): 237–91.

Daynard R.A. , “Tobacco Liability Litigation as a Cancer Control Strategy,” Journal of the National Cancer Institute, 80 (1988): 9–13.

Kelder G.E. Jr. Daynard R.A. , “The Role of Litigation in the Effective Control of the Sale and Use of Tobacco,” Stanford Law & Policy Review, 8, no. 1 (1997): 63–87, at 71.

See Glantz S.A. Begay M.E. , “Tobacco Industry Campaign Contributions Are Affecting Tobacco Control Policymaking in California,” JAMA, 272 (1994): 1176–82;.

Taylor P. , The Smoke Ring: Tobacco, Money, and Multinational Politics (New York: Pantheon Books, 1984).

See, e.g., Stigler G.J. , “The Theory of Economic Regulation,” Bell Journal of Economics and Management Science, 2, no. 1 (1971): 3–21. Through the disclosures of internal documents emerging from litigation, the tobacco industry appears to have lost some of its ability to capture Congress, though its influence remains significant.

Lytton T.D. , “Lawsuits Against the Gun Industry: A Comparative Institutional Analysis,” Connecticut Law Review, 32 (2000): 1247–75, at 1250.

Rosenberg , supra note 1, at 97.

According to Rosenberg, courts may produce social change when the three constraints discussed earlier are overcome, and when one or more of the following conditions are also present: (1) when other actors offer positive incentives to induce compliance; (2) when other actors impose costs to induce compliance; (3) when judicial decisions can be implemented by the market; and (4) when judicial decisions provide cover or leverage for implementers to act. Rosenberg, supra note 1, at 97–103.

One study found that smoking control advocates have been slow to engage in the implementation and enforcement process. See Jacobson P.D. Wasserman J. , “Tobacco Control Laws: Implementation and Enforcement,” Journal of Health Politics, Policy and Law, 24 (1999): 567–98.

More generally, see Nathanson C.A. , “Social Movements as Catalysts for Policy Change: The Case of Smoking and Guns,” Journal of Health Politics, Policy and Law, 24 (1999): 421–88.

Paulson A , “Smith & Wesson Agrees to Landmark Gun Safety Settlement,” CNN Website (March 17, 2000), at <http://www.cnn.com/2000/ALLPOLITICS/stories/03/17/gun.lawsuit/>. For its efforts, Smith & Wesson was virtually blackballed in the gun manufacturing industry and among hunters, eventually leading to its bankruptcy. In contrast, other gun manufacturers resisted the urge to settle and saw their sales increase as a result.

See, e.g., Meier B. , “Gun Makers' Use of Safety Device Is Erratic,” New York Times, March 19, 1999.

See Schuck P.H. , “The New Ideology of Tort Law,” The Public Interest, 92 (1988): 93–109;.

Capron A.M. , “The Burdens of Decision,” Hastings Center Report, 19 (May/June 1990): 36–41;.

Horowitz , supra note 6;.

Melnick , Regulation and the Courts: The Case of the Clean Air Act, supra note 6;.

Melnick , Between the Lines: Interpreting Welfare Rights, supra note 6.

See Id.

See id. On the other hand, Parmet and Daynard argue that far from being anti-democratic and paternalistic, public health litigation facilitates democratically determined policy and allows the popular will to be expressed.

See Parmet Daynard , supra note 9.

Melnick R.S. , “Tobacco Litigation: Good for the Body But Not the Body Politic,” Journal of Health Politics, Policy and Law, 24 (1999): 805–10, at 810.

Kapp M.B. , “Tobacco Litigation, Round Three: It's the Money and the Principle,” Journal of Health Politics, Policy and Law, 24 (1999): 811–14.

Turley J. , “A Crisis of Faith: Tobacco and the Madisonian Democracy,” Harvard Journal on Legislation, 37 (2000): 433–81, at 452.

Id. at 453.

Id. at 466.

Sullum J. , For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health (New York: The Free Press, 1997): at 177–80. Given that the states' litigation was specifically designed to avoid questions of individual responsibility, it seems likely that Sullum would not only oppose litigation as policy, but litigation to recover damages as well.

See Id. at 181–219.

See, e.g., Jacobson Wasserman , supra note 20.

LaFrance A.B. , “Tobacco Litigation: Smoke, Mirrors and Public Policy,” American Journal of Law and Medicine, 26 (2000): 187–203, at 188–89.

See Melnick , supra note 26.

Turley , supra note 28, at 467–68.

Id. at 473.

Engle v. RJ Reynolds Tobacco, No. 94-08273 CA-22, 2000 WL 33534572 (Fla. Cir. Ct. Nov. 6, 2000).

For reasons beyond the scope of this article, bankruptcy is highly unlikely, even if the Engle award is upheld on appeal (a result expected by few observers). But even if bankruptcy were to occur, it seems unrealistic to assume that tobacco products would not be available in the United States, since new entrants would emerge. For a thorough and compelling critique of the bankruptcy strategy, see Correia E. , Limitations on Tort Liability, paper presented to the Advocacy Institute, Washington, D.C., 1998.

See Jacobson Warner , supra note 2.

Mather L. , “Theorizing about Trial Courts: Lawyers, Policymaking, and Tobacco Litigation,” Law & Social Inquiry, 23 (1998): 897–936.

Not all gun manufacturers are involved in producing all types of guns. The Violence Policy Center compiles data collected by the federal Bureau of Alcohol, Tobacco and Firearms on the number and type of firearms produced by gun manufacturers each year. Gun manufacturers can be divided essentially into “old line” manufacturers and smaller, unsavory manufacturers like the Ring of Fire companies. Founded by a handful of people, the Ring of Fire companies dominate domestic manufacturing of cheap handguns. See Violence Policy Center, Firearms Production in America: A Listing of Firearm Manufacturers in America with Production Histories Broken Out by Firearm Type and Caliber (Washington D.C.: Violence Policy Center, 2000).

See also Diaz T. , Making A Killing: The Business of Guns in America (New York: New Press, 1999) (noting that the “Ring of Fire” manufacturers from Southern California produce a large proportion of guns used in crimes).

See Bureau of Alcohol, Tobacco and Firearms, Annual Firearms Manufacturing and Export Report (Washington, D.C.: Department of the Treasury, 1996). At least three years elapse between the collection of data by the bureau and when the data become available to the public.

See Diaz , supra note 41, at 29. Diaz draws on information from the Bureau of Alcohol, Tobacco and Firearms' (ATF) National Firearms Tracing Center, and makes the important note that these figures only represent guns related to crimes and reported by law enforcement authorities to the ATF.

Even in the single victory, the recovery was insufficient to cover attorneys fees, forcing the plaintiff's attorney to abandon the litigation. Cipollone v. Liggett Group, Inc., 893 F.2d 541 (3d Cir. 1990).

aff'd in part and rev'd in part, 505 U.S. 504 (1992). In any event, the $400,000 jury award was later reversed on appeal.

Id.

For details, see Moore M.C. Mikhail C.J. , “A New Attack on Smoking Using an Old-Time Remedy,” Public Health Reports, 111 (1996): 192–203;.

Kelder Daynard , supra note 14.

Most of these cases are either on appeal or still in progress, so it is unclear whether the tobacco industry will be forced to pay large damage awards.

For the full text of the agreement and the full recitation of public health initiatives, see, e.g., Washington State Attorney General's Office, Tobacco Information Zone, at <http://www.wa.gov/ago/tobacco/ag_summary.htm> (last visited April 13, 2002).

Campaign for Tobacco-Free Kids, the American Cancer Society, the American Heart Association, and the American Lung Association, Show Us the Money: An Update on the States' Allocation of the Tobacco Settlement Dollars (January 15, 2002), available at <http://tobaccofreekids.org/reports/settlements/2002/fullreport.pdf>.

Settlement negotiations of individual litigation may also lead to changes in industry behavior. For example, the plaintiffs in Mangini v. R.J. Reynolds Tobacco Co., 875 P.2d 73 (Cal. 1994) sued to enjoin the Joe Camel advertising campaign as a violation of California's unfair and unlawful business practices laws. After the court allowed the claim to go forward, the parties negotiated a settlement ending the Joe Camel campaign in California. No doubt, this litigation played an important contributing role in the decision to end the Joe Camel campaign nationally, but cynics have observed that the campaign had run its course anyway.

King C. Siegel M. , “The Master Settlement Agreement with the Tobacco Industry and Cigarette Advertising in Magazines,” N. Engl. J. Med., 345 (2001): 504–11.

The evaluation is being conducted by the Research Triangle Institute (RTI) under contract to the American Legacy Foundation.

The Tax Burden on Tobacco: Historical Compilation, vol. 35 (Arlington, Virginia: Orzechowski and Walker, 2000).

For a similar analysis, see Daynard R.A. , “Implications for Tobacco Control of the Multistate Tobacco Settlement,” American Journal of Public Health, 91 (2001): 1967–71.

See Patterson P.C. Philpott J.M. , “In Search of a Smoking Gun: A Comparison of Public Entity Tobacco and Gun Litigation,” Brooklyn Law Review, 66 (2000): 549–607.

Insurance Litigation Reporter, 11, no. 29 (2001): 678.

LaFrance , supra note 33, at 190.

See, e.g., Anderson v. Fortune Brands (In re Kings County Tobacco Litig.), 723 N.YS.2d 304 (N.Y. Sup. Ct. 2000);

Nunnally v. R.J. Reynolds Tobacco Co., Mississippi (unreported jury verdict cited in Geyelin M. , “Jury in Mississippi Finds RJ Reynolds Not Responsible for Death of a Smoker,” Wall Street Journal, July 13, 2000, at B18);.

Apostolou v. American Tobacco Co., 722 N.YS.2d 796 (N.Y. 2001);

Little v. Brown & Williamson Tobacco Corp., No. C.A. 2:98-1879-23, 1999 WL 33291385 (D.S.C. Mar. 3, 1999);

American Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997);

Mehlman v. Philip Morris, Inc., New Jersey (unreported jury verdict.cited in “Jury Clears Tobacco Firm in Smoker's Cancer Death,” Wall Street Journal, May 17, 2000, at B9).

Boeken v. Philip Morris, No. BC 2226593 (Cal. Super. Ct. June 6, 2001).

Henley v. Philip Morris, No. 995172, 1999 WL 221076 (Cal. App. Div. Super. Ct. April 6, 1999).

William-Branch v. Philip Morris, No. 9705-03957 (Or. Cir. Ct. 1999).

See Fairclough G. , “Tobacco Firms Ordered to Pay Ex-Smoker,” Wall Street Journal, March 21, 2000, at A3.

Whiteley v. RJR and Philip Morris, No. 303184 (Cal. Super Ct. March 27, 2000).

See Testerman J. , “Jury: Tobacco to Blame in Death,” St. Petersburg Times, October 13, 2000, at 1B.

Engle v. RJ Reynolds Tobacco, No. 94-08273 CA-22, 2000 WL 33534572 (Fla. Cir. Ct. Nov. 6, 2000).

Broin v. Philip Morris Companies, 641 So. 2d 888 (Fla. Dist. Ct. App. 1994).

“As of May 23, 2001, approximately 3,020 lawsuits (referred to as the Broin II cases) have been filed, and are still pending, in Florida, by individual flight attendants, for personal injury as a result of illness allegedly caused by exposure to secondhand tobacco smoke in airline cabins. In these lawsuits, filed pursuant to the terms of the settlement of the Broin v. Philip Morris class action (10/9/97) each individual flight attendant will be required to prove that he or she has a disease caused by exposure to secondhand smoke in airplane cabins.” Reynolds RJ , Other Significant Litigation, at <http://www.rjrt.com/TI/Pages/TILitigationLitSumOther.asp> (last visited May 7, 2002). See also

Rabin R.L. , “The Third Wave of Tobacco Tort Litigation,” in Rabin R.L. Sugarman S.D. , eds.,

Regulating Tobacco (New York: Oxford University Press, 2001): 176–206, at 193–95.

Staron v. McDonald's Corp., 51 F.3d 353 (2d Cir. 1995).

Jacobson ED Warner K.E. , “Litigation and Public Health Policy Making: The Case of Tobacco Control,” Journal of Health Politics, Policy and Law, 24, no. 4 (1999): 769–804, at 790–91.

Id. at 791.

See Morgan D. , “What in the Wide, Wide World of Torts Is Going On? First Tobacco, Now Guns: An Examination of Hamilton v. Accu-Tek and the Cities' Lawsuits Against the Gun Industry,” Mississippi Law Journal, 69 (1999): 521–59.

See, e.g., Kelley v. R.G. Industries, 497 A.2d 1143 (Md. 1985).

In Kelley, the court imposed liability for manufacturing Saturday Night Specials. However, the Maryland legislature subsequently enacted legislation prohibiting strict liability against gun manufacturers. See Morgan , supra note 70.

See Meek J.G. , “Anti-Gun Forces Continue Battle over Liability: Despite New Orleans' Loss, Municipalities Elsewhere Fight On,” L.A. Daily Journal, December 12, 2001.

Burnett Sterling H. , “Suing Gun Manufacturers: Hazardous to Our Health,” Texas Review of Law and Politics, 5 (2001): 433–94, at 440.

Id. at 436 n.5.

Morial v. Smith & Wesson, 785 So. 2d 1 (La. 2001), cert. denied, 122 S. Ct. 346 (2001).

See Patterson Philpott , supra note 54, at 603.

City of Cincinnati v. Beretta U.S.A. Corp., Nos. C-990729, C-990814, C-990815, 2000 Ohio App. LEXIS 3601 (Ohio Ct. App. 2000).

Hamilton v. Accu-Tek, 47 F. Supp. 2d 330 (E.D.N.Y 1999); 62 F. Supp. 2d 802 (E.D.N.Y 1999). Based on the New York Court of Appeals' answers, the Second Circuit then reversed the jury verdict.

Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21 (2d Cir. 2000).

Hamilton v. Beretta U.S.A. Corp., 222 F.3d 36 (2d Cir. 2000).

Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055 (N.Y. 2001). While courts have accepted the remoteness doctrine in gun litigation, they have rejected it in tobacco litigation. Victor Schwartz has examined the remoteness doctrine — claims of harm to third persons that are too remote to permit recovery — in light of the cigarette litigation, and argues for its application in the tobacco litigation.

See Schwartz V.E. , “The Remoteness Doctrine: A Rationale for a Rational Limit on Tort Liability,” Pepperdine Law Review, 27 (2000): 759–68.

Specifically, Schwartz asserts that if smokers cannot prove direct harm, they should not be able to recover for indirect economic harms. Id. at 765–66.

Schwartz warns that abandonment of the remoteness doctrine might result in an avalanche of litigation and pave the way for Medicaid or Medicare to sue McDonald's because it entices children to eat high fat foods that contribute to arteriosclerosis. See Id. at 767.

Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21 (2d Cir. 2001).

Merrill v. Navegar, Inc., 28 P.3d 116 (Cal. 2001).

Merrill v. Navegar, Inc., 89 Cal. Rptr. 2d 146 (Cal. Ct. App. 1999).

Merrill v. Navegar, Inc., 28 P.3d 116 (Cal. 2001). A strong dissent argued that, since the defendant indeed breached its duty of care, the case should have been permitted to go to trial.

Id. at 151 (Werdegar, J., dissenting).

See Hill A. , “Ready, Aim, Sue: The Impact of Recent Texas Legislation on Gun Manufacturer Liability,” Texas Tech Law Review, 31 (2000): 1387–435.

Camden County Board of Chosen Freeholders v. Beretta U.S.A., 273 F.3d 536 (3d Cir. 2001).

Id. at 540.

See Barrett P.M. , “Gun Makers and Insurers Square Off over Coverage of Legal Bills and Claims,” Wall Street Journal, September 21, 1999, at B10.

See Paulson , supra note 21. According to Hill, some gun manufacturers have begun conducting research on smart guns and other technologies that would enhance safety features to avoid liability for not manufacturing feasible alternative designs that are safer.

See Hill , supra note 85. Within the industry, there is considerable debate about the feasibility of designing safer guns and how well they would work.

Id.

See Patterson Philpott , supra note 54.

See Trapolin E.W. , “Sued into Submission: Judicial Creation of Standards in the Manufacture and Distribution of Lawful Products — The New Orleans Lawsuits Against Gun Manufacturers,” Loyola Law Review, 46 (2000): 1275–308. According to Diaz, law enforcement groups put considerable pressure on Colt and Smith & Wesson to make concessions.

See Diaz , supra note 41. Since law enforcement groups and the federal government are large purchasers of these two companies, pressure to retain government contracts may have been a factor in the decision to make these concessions.

See Id.

See, e.g., Smith v. Bryc$o Arms, 33 P.3d 638 (N.M. Ct. App. 2001).

See, e.g., Lott J.R. , “The Concealed Handgun Debate,” Journal of Legal Studies, 27 (1998): 221–43;.

Kates D.B. Jr. , “Telling the Truth About Guns,” The Public Interest, 104 (1991): 101–06.

For a contrary view, see Black D.A. Nagin D.S. , “Do Right-to-Carry Laws Deter Violent Crime?,” Journal of Legal Studies, 27 (1998): 209–19;.

Webster D.W. , “Flawed Gun Policy Research Could Endanger Public Safety,” American Journal of Public Health, 87 (1997): 918–21.

United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).

As of December 1999, the following thirteen states have enacted legislation: Alaska, Arizona, Arkansas, Georgia, Louisiana, Maine, Montana, Nevada, Oklahoma, Pennsylvania, South Dakota, Tennessee, and Texas. Legislation has been introduced, but not yet enacted in a number of other states: Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, North Carolina, Oregon, South Carolina, Vermont, and Wisconsin.

See The Educational Fund to Stop Gun Violence, “Firearms Litigation,” Stop Gun Violence News, 20 (1999).

Jacobson Warner , supra note 2.

For a more hopeful analysis of the tobacco litigation's policy potential, see Daynard R.A. , “Tobacco Litigation: A Mid-Course Review,” Cancer Causes and Control, 12 (2001): 383–86.

We are indebted to an anonymous reviewer for suggesting this argument.

To be sure, there are certain properties inherent to guns that affect the likelihood and severity of harm (particularly the type of firearm involved). See Cook P. Moore M. Braga A. , “Gun Control” (December 2000) (Faculty Research Working Paper Series, John F. Kennedy School of Government, Harvard University), available at <http://ksgnotes1.harvard.edu/Research/wpaper.nsf/rwp/RWP01-033/$File/rwp01_033_moore.pdf>.

See Bhowmik R. , “A Sense of Duty: Retiring the ‘Special Relationship’ Rule and Holding the Gun Manufacturers Liable for Negligently Distributing Guns” Journal of Health Care Law and Policy, 4, no. 1 (2000): 42–87.

See Lytton , supra note 17.

Cook Moore Braga , supra note 98.

Navegar, 28 P.3d at 138 (Werdegar, J., dissenting).

See also Bhowmik , supra note 99, at 64–65.

Navegar, 28 P.3d at 132.

LaFrance , supra note 33, at 190.

Schwartz G.T. , “Cigarette Litigation's Offspring: Assessing Tort Issues Related to Guns, Alcohol and Other Controversial Products in Light of the Tobacco Wars,” Pepperdine Law Review, 27 (2000): 751–57, at 756.

See Diaz , supra note 41.

Id. at 4, 47–49.

Id. at 24–25.