George Will

WASHINGTON--The Florida appeals court did not confine itself Wednesday to overturning the class-action $145 billion judgment against the tobacco industry. The court also roasted the plaintiffs' attorney. But his behavior, although contemptible, is congruent with the increasingly cynical government policy of keeping tobacco companies prosperous enough to be worth looting.

Three years ago a Miami jury decided that cigarettes, even when used as intended, are often addictive and sometimes lethal. The jury awarded compensatory damages for three people with cancer and punitive damages for 300,000 to 700,000 Florida smokers. This, even though the three had chosen to use this legal product, the health hazards of which have been relentlessly publicized by government for almost four decades. And even though cigarettes, although addictive, are not irresistibly so: There are about as many American ex-smokers as there are smokers.

The appeals court denounced the plaintiffs' attorney's ``pandering'' to the predominantly African-American jury with ``inflammatory and prejudicial'' and ``racially charged'' statements. The attorney incited the jury to nullify the settled law establishing that selling cigarettes is neither tortuous nor otherwise improper. Reproving him, the appeals court tartly noted that ``nullification arguments have absolutely no place in a trial and violate state and federal due process by exposing defendants to liability and punishment based on lawful conduct.''

The plaintiffs' attorney had made much of the fact that a defense witness' resume revealed that he had studied John C. Calhoun, the 19th-century statesman who defended slavery. And the attorney said that disregarding the law on the legality of selling cigarettes would be akin to Martin Luther King's and Rosa Parks' civil disobedience. He said that respecting the right of tobacco companies to stay in business is akin to saying there are ``two sides'' to slavery or the Holocaust.

The appeals court notes that although the plaintiffs' attorney concedes that attorneys cannot explicitly tell juries to ignore the law, he has written a book boasting of his ``subtle way'' of insinuating ``my 'Piss on the Law' theme.''

George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
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