The Florida Supreme Court is about to render final judgment in the Engle case, which ordered tobacco companies to pay $165 billion in immediate, punitive damages in the name of their alleged crimes against 700,000 Florida smokers.
America is a nation that reveres the fact that ours is "a government of laws, not of men." Under this principle, members of government can use their power only to enforce known and clearly defined laws. As a result, we do not worry about losing our property or being thrown in jail just because we are unpopular or because some government official dislikes us.
The rule of law is a precondition of a free society, but by itself does not guarantee that freedom will be protected; it is possible for citizens and lawmakers to pass laws that violate individual rights. Thus, it is crucial that citizens have political and legal recourse to argue for a law to be changed, repealed or overturned. What a proper legal system must not allow, however, is for anyone to take the law into his own hands; when such vigilantism is allowed in place of the rule of law, no one's rights are safe.
Any American who understands the importance of this principle should be concerned with the case of Engle vs. Liggett Group, on which the Florida Supreme Court is set to render final judgment. The 2001 Engle verdict ordered tobacco companies to pay $165 billion in immediate, punitive damages in the name of their alleged crimes against 700,000 Florida smokers.
The unprecedented punishment was arrived at via a trial that, as documented thoroughly by a 2003 appellate ruling overturning the verdict, flouted the law to a staggering degree.
For example: the trial court upheld class certification to some 700,000 Florida smokers with vastly different individual circumstances — even though class certification only applies to cases with fundamentally similar liability claims. "[I]t is inescapable," the appellate court found, "that the . . . requirements for class action have not been met." The trial court assessed punitive damages even though such damages were "precluded by the [1998 government] settlement agreements which . . . expressly included claims for punitive damages." Further, the trial court assessed a bankrupting amount of punitive damages, even though all legal precedent holds that punitive damages (even when they apply) "may not be assessed in an amount which will financially destroy or bankrupt a defendant."
The plaintiff's attorney, Stanley Rosenblatt, knowing that the law did not allow for the punishment he sought, made emotionally charged appeals to the jury to ignore the law. "[C]ounsel repeatedly urged the jury to fight what he called 'unjust laws.'" Rosenblatt — who in a 1992 book presented his self-described "'Piss on the Law' theme" — likened tobacco companies to perpetrators of slavery and the Holocaust, and then told jurors to consult not the law but their "moral, ethical, [and] religious" beliefs to determine whether the companies deserved a bankrupting judgment.
Such conduct should not be allowed in the courtroom. But trial judge Kaye responded only with an occasional "patently ineffective" warning. Even worse, he, too, instructed the jury to ignore the law, saying of a Supreme Court ruling favorable to tobacco companies: "Now, we've got to work around it [the federal law]. . . . Because it is flat-out so wrong in my opinion . . . with all due respect for the Supreme Court."
The purpose of a trial is to objectively determine the truth about some alleged wrongdoing, by following carefully defined procedures of evidence and then applying the law accordingly. In the Engle case, plaintiff's attorney and the judge chose to ignore the relevant liability laws and procedures because they disliked them. They adopted the lynch mob mentality that righteously hangs a man because it feels he must be evil.
This mentality is broader than just the Engle case. It was present in the anti-financier persecutions of the 1980s, in which financiers were prosecuted under anti-racketeering laws designed to stop organized crime — and in which superstar financier Michael Milken was, in the words of University of Chicago law professor Daniel Fischel, "driven out of business and forced to plead guilty to crimes that previously did not exist." In today's courts, plaintiffs' attorneys incite juries to award jackpot verdicts by demonizing unpopular targets like tobacco companies, pharmaceutical companies or CEOs — and juries justify their verdicts as "sending a message" the law does not authorize them to send.
The anarchy of the Engle case must be rejected by the Florida Supreme Court — and we should repudiate such lawlessness wherever it occurs. Like all encroachments on individual rights, this one is beginning by targeting unpopular individuals and groups. If we allow it to stand, many innocent, law-abiding Americans are thereby deprived of their rights. And if we allow it to stand, nobody's rights are safe.
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Read more articles by Alex Epstein
Well, HANG ‘EM HIGH!
Mr. Epstein makes an excellent point about the rule of law, and I commend him for that. While reading his work, however, I get the same feeling of disgust and betrayal precipitated by the New York Times who in recent publications made it more difficult to combat terrorism. Essentially, the NYT has ‘lawfully’ hidden behind “Freedom of Speech” and left us all more vulnerable. For those thinking the Al Qaeda - Big Tobacco comparison is unfair, there are far, far fewer victims of terrorism than victims of tobacco.
This staunch libertarian views the pursuit of life, liberty and happiness as the American way. All US citizens (including shareholders of Big Tobacco) are entitled to these unalienable rights so long as their pursuits do not infringe upon the rights of other citizens. Who could possibly disagree? Is there an intellectual argument against this position? I haven’t discovered one.
Tobacco cigarettes are engineered for rapid and sustained delivery of nicotine. Nicotine is addictive; therefore, it is more than just ‘difficult’ to stop smoking despite the health risks. A plethora of evidence available in the form of peer-reviewed epidemiologic studies are more than convincing of tobacco’s detrimental effects upon the human body. In their pursuit of life, liberty and happiness, shareholders of Big Tobacco are guilty of continuing to profit from a product while knowing that it increases the morbidity and mortality of their consumers (robbing them of the “pursuit of life” bit). These consumers also incurred substantial, bankrupting health care costs. As for the unpaid debts, guess who picks up the tab? . . . well, that accounts for our loss of life, liberty and happiness.
There are times when moral law trumps the laws of man.
Either way, Big Tobacco is headed to the gallows. The question is ‘How soon?’
Comment by Woody | July 1, 2006
There are no victims of tobacco, just people who knowingly use a dangerous and addictive substance to meet their "needs". The "victims" of tobacco are the same as the "victims" or alcohol: people who ignore the very real danger to enjoy a few puffs or a couple of drinks. Any calamity that befalls them is of their own making, no one else's. We need to stop awarding people money for stupid behavior that they knew was bad for them when they undertook it.
Comment by Kenny | July 2, 2006
Hey, I would have gotten back sooner, but thankfully there's no internet in the woods :)
Quite a valid position to hold, Kenny. If fact, a couple of years ago I would have chimed in verbatim as it was my position upon the issue as well. I’ve since chosen to set aside my prejudice and further educate myself regarding tobacco. If you’re interested, a good place to start is “A Question of Intent” by David Kessler (former commissioner of the FDA). In my opinion, the author is an egomaniacal narcissistic douche, but that doesn’t change the facts.
I’ll reiterate what I posted above in the passive smoking 'debate:' Smokers have every right to suffer and die from their habit so long as they can cover their own health care costs and not impose their risks and byproducts upon us physically or financially. If you really think about it, that is simply not possible.
Thanks for your comment
Comment by Woody | July 6, 2006
Breaking news:
Chalk one up for Big Tobacco. The decision was almost entirely tossed out on its derier.
Sorry guys, all was not won though, “the court reinstated a damage award to Mary Farnan and Angie Della Vecchia, who started smoking as an eleven-year-old and died in 1999” – Google news. I’m sure the child knew what she was getting herself into, AND could have stopped puffin’ at any time despite the crippling addiction.
Comment by Woody | July 6, 2006