Suing the Tobacco and Lead Pigment Industries
Government Litigation as Public Health Prescription
Publication Year: 2010
Published by: University of Michigan Press
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“The most important public health litigation ever in history”— that is how Mississippi attorney general Michael C. Moore described the lawsuit he had filed on behalf of his state against the tobacco industry in 1994. He boasted to a New York Times reporter,
Part I: The Tort System's Early Responses to Product-Caused Diseases
1. The Morning after the Consumer Century
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The 1893 World’s Columbian Exposition, held in Chicago, was America’s way of letting the world know that it had left behind its agrarian childhood and was emerging as a world leader in a new era of industrialized consumerism. Here, the Ferris wheel, Juicy Fruit gum, Shredded Wheat, Quaker Oats, and Pabst Blue Ribbon beer...
2. Product-Caused Diseases Confront the Law of the Iron Horse
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The common law, or judge-made law, typically governs claims filed by victims against those they believe should be held legally responsible for causing their injuries. It relies on basic principles of law established by judges in previous cases, or precedents. The operating premise that lies behind this precedent-based system is that a certain degree of fairness is assured when the court...
3. The First Wave of Challenges to the Individual Causation Requirement
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By the 1970s, the public understood the strong causal link between lung cancer and smoking, the effects of low doses of lead on children in terms of loss of intelligence, and other links between product exposure and detrimental health consequences. At the same time, changes in the law—particularly the adoption of strict products liability...
Part II: Public Products Litigation as a Response to Regulatory Failure
4. The Seeds of Government-Sponsored Litigation
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The inability of victims of tobacco-related illnesses and childhood lead poisoning to recover against manufacturers by using the usual product liability claims might have spelled the end of such litigation. Instead, four developments occurring between the mid-1960s and the mid- 1980s set the stage for a new form of litigation, actions brought by states and municipalities against product manufacturers, which began in 1995...
5. A Failure of Democratic Processes? Legislative Responses to the Public Health Problems Caused by Tobacco and Lead Pigment
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The responsibility for assuring that products are safe for consumers is most often handled in the American political structure by legislatures and the administrative agencies they create. To be sure, any time a court orders a manufacturer to pay damages to consumers or others injured by its products, such judgment produces incentives for manufacturers to avoid creating harmful products...
6. The Government as Plaintiff: Parens Patriae Actions against Tobacco and Gun Manufacturers
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Until the mid-1990s, the manufacturers of tobacco and lead products still had not been forced to contribute financially to resolving the public health problems resulting from the use of their products. To recapitulate, courts most often rejected claims against tobacco manufacturers because of the cigarette consumer’s own conduct in deciding to smoke...
7. Judicial Rejection of Recovery for Collective Harm: Public Nuisance and the Rhode Island Paint Litigation
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The viability of parens patriae litigation seeking to hold manufacturers accountable for product-caused health problems would ultimately be decided not in the tobacco or handgun litigation but in state actions against lead pigment manufacturers. Shortly after the parties in the tobacco litigation finalized the Master Settlement Agreement, Ron Motley...
Part III: A Critique of Public Products Litigation
8. Do Litigation Remedies Cure Product-Caused Public Health Problems?
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Viewed super‹cially, the goal of the parens patriae tobacco litigation was to compensate the states for their expenditures resulting from tobacco-related diseases. Retribution also played a role: Ron Motley, one of the lead attorneys in the tobacco litigation, argued, “These gangsters have gotten a free ride for forty years.”1 The most important goal...
9. Impersonating the Legislature: State Attorneys General and Parens Patriae Products Litigation
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Litigation filed against product manufacturers by state attorneys general attempts to change the structure of either product regulation or government programs seeking to prevent product-caused public health problems. For example, tobacco manufacturers today operate under a set of detailed regulations governing many aspects of their operations, including advertising directed toward young people...
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Nature abhors a vacuum. At the close of the twentieth century, tobacco-related diseases and childhood lead poisoning, along with diseases caused by asbestos exposure, constituted product-caused public health problems of an unprecedented scope. Public health advocates perceived that the ordinary regulatory processes of the legislative branch and the administrative agencies it creates...
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Page Count: 318
Illustrations: 1 Figure
Publication Year: 2010