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Coffin nails

Retro Week here at the Briefcase is almost over.  Got the briefs done, and next week we'll go back to a full schedule, which will include a look at the Gant decision, the oral argument in the Supreme Court case on strip-searching school students, and the possible ramifications of its decision earlier this year in Oregon v. Ice to consecutive sentencing in Ohio. 

One other decision the Supreme Court made this year was to close the chapter on the Phillip Morris case, where a smoker's family in Oregon got an award which included $80 million in punitive damages.  The Court had reversed the case twice before, but finally allowed the verdict to stand on state law grounds.  Here was my post about the case's first trip to the Court, back in October of 2006:

Today's Moment of Duh comes courtesy of the plaintiff's decedent in the case of Phillip Morris v. Williams, scheduled to be argued soon before the US Supreme Court:

Jesse Williams rationalized about the dangers of smoking cigarettes for more than 40 years. In part, he trusted the tobacco companies when they said that the link between smoking and lung cancer had not been proved. But when Williams was diagnosed with inoperable lung cancer in 1996, he told his wife Mayola, "Those darn cigarette people finally did it. They were lying all the time."

Ya think? 

Williams died, and his widow filed suit against Phillip Morris; in 1999, a jury awarded her $820,000 in compensatory damages and $79.7 million in punitive damages.  The Oregon Supreme Court, citing the tobacco companies' lengthy history of "reprehensible conduct," upheld the judgment.  Now it's on to the Supreme Court, which a few years back ruled that punitive damage awards have constitutional ramifications.  In that case, a doctor was awarded $4 million because of a lousy paint job on his BMW, and the Court threw it out, saying that an award of that magnitude for that minimal an injury violated due process.

I'm not going to get into that.  As the article I cited at the top of this post points out, despite the wailing and gnashing of teeth to the contrary by the "tort reform" lobby, awards of punitive damages are extremely infrequent.  And I'm certainly not going to shed tears for the tobacco industry, the executives of which should be whiling away their time trying to figure out which particular circle of Dante's Inferno they'll be consigned to upon their demise.

But with all due respect to the Widow Williams, anyone who in 1996 doubted the link between cigarettes and cancer probably believed that the Lung Fairy would come and take his damaged one away and bring him a new one.

See, this is the problem that lawyers have.  We know all the arguments.  If someone says that punitive damages are a problem, we can point to how infrequent such awards are.  When newspapers write articles about the medical malpractice crisis, a few days later there are letters in the forum section from lawyers pointing out that the insurance companies are raising their premiums not because of out-of-control malpractice awards but because of their losses in the stock market.  When someone at a party mentions the McDonald's coffee case, a good lawyer can point out the salient facts -- McDonald's had hundreds of prior complaints about how hot its coffee was, the woman was horribly injured, she offered to settle for her medical expenses -- between sips of his Cabernet.

And it doesn't really matter, because we think like lawyers and people think like people, and it's not the same thing any more.  Most people know that if you drive with a cup of hot coffee in your lap, it's quite possible for bad things to happen.  Most people figured out long before 1996 that cigarettes are bad for you.  Most people don't buy the argument that somebody's too addicted to do anything about that, because there are literally tens of millions of people who've decided that they wouldn't smoke any more, and stopped doing it.  Most people know that getting up on a ladder can be dangerous, and most people know that sticking your hand in a lawnmower while it's running not only makes you Captain of the Dummy Team, but can cost you several fingers.

Most people, in other words, still retain a concept of personal responsibility.  I don't think we, as lawyers, do.  In fact, the concept of personal responsiblity has become something close to anathemic for us, because we've spent the better part of the last few decades broadcasting a simple message:  if something bad happens to you, (a) it's somebody else's fault, and (b) they should pay you money.

That's the main reason the public has trouble with lawyers.  They see us rushing to find new ways to perform modern-day legal alchemy -- turning misery into gold -- by continuing to expand the horizons of liability beyond anything which would have been vaguely recognizable even thirty or forty years ago, and they don't see that as always being good for society.

And you know what?  They've got a point.

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