Unfair to Philip Morris!

James J. Kilpatrick
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Posted: Apr 13, 2006 10:41 AM

The U.S. Supreme Court seldom is concerned with "justice." Its concern is with law, and law and justice are not necessarily the same thing. But if the high court wished to strike a blow for old-fashioned justice, it could agree to hear Case No. 05-1256, now pending on a petition for appeal.

The case is Philip Morris USA v. Mayola Williams. It involves an award of breathtaking damages to the widow of a fellow in Oregon who died in 1997. Officially, the cause of his death was cancer of the lung. In truth, Jesse Williams died of stupidity -- his own stupidity. He has plenty of company in the grave.

The facts are not disputed. Williams began smoking in 1950 while serving in the Army in Korea. By 1955 he was into a pack a day of Marlboros. He climbed up to three packs a day before his death. As a child, he had been taught that smoking was unhealthy. He and his wife taught their children the same lesson. She repeatedly begged him to quit. His doctor urged him to quit. He kept on smoking. And he died.

His widow sued. In 2001 a jury awarded her $21,485 in compensatory damages, $500,000 in "noneconomic" damages and $79.5 million in punitive damages. Philip Morris naturally appealed the verdict, and the U.S. Supreme Court understandably sent the case back to Oregon for reconsideration. The Oregon Supreme Court dutifully reconsidered, and two months ago it affirmed once again.

"This is by no means an ordinary case," said the Oregon court. "Philip Morris' conduct here was extraordinarily reprehensible, by any measure of which we are aware. ... (It) engaged in a massive, continuous, near-half-century scheme to defraud the plaintiff and many others, even when Philip Morris always had reason to suspect -- and for two or more decades absolutely knew -- that the scheme was damaging the health of a very large number of Oregonians -- the smoking public -- and was killing a number of that group. Under such extreme and outrageous circumstances, we conclude that the jury's $79.5 million award comports with due process. ..."

Suppose we paraphrase: For two or more decades, Williams and every other sentient human being on the planet Earth "absolutely knew" that smoking is damaging to a smoker's health. Williams, on the record, was neither deaf, dumb nor blind. He could read -- and undoubtedly did read -- about the perils of nicotine addiction. Nobody made him buy a single cigarette. Philip Morris wasn't killing him. At three packs a day he was killing himself. Like a million other smokers, he could have quit if he really wanted to.

My usual rule in this column is to keep "me" out of it. This case merits an exception. I began smoking Lucky Strikes as a high school student at 16. Later, I enjoyed Chesterfields, Pall Malls, Camels, even Kools. Repeatedly I tried to stop. After my wife's death in 1997, I fell in love with an old friend, columnist Marianne Means. She too was recently widowed. Before long, I proposed. She said "yes, but." She would marry me, yes, but please, would I stop smoking? So I stopped. Stopped cold. I have not touched a cigarette since Jan. 1, 1998.

Thus this humongous award strikes me as utterly unwarranted. So Philip Morris promoted its cigarettes? So what! Cigarettes were and still are a legal product, as legal as beer, bonbons, and bets in Las Vegas. Were the Philip Morris ads deceptive? I'm familiar with the evidence in other tobacco cases, and long ago concluded that the manufacturers' ads could not have deceived a single rational adult.

It is the nature of man to take risks. The philanderer, bent on committing adultery, knows he is doing wrong. So, too, with the unsatisfied wife, out for a romp in a neighbor's bed. There's an adrenaline effect. Many of us drive too fast, gamble too much, eat too much, drink too much, stay out too late. Knowingly, we skate on thin ice. And when we exercise bad judgment -- as Williams consciously did -- we ought not to be hugely rewarded for it.

In writing columns, I long ago made it a rule never to cry "outrage" more than twice a year. Let me use half my quota for 2006: This gargantuan award is an outrage. Philip Morris doesn't owe Mrs. Williams a dollar, a dime, or a single red cent.