BRIGHT IDEAS: Suing the Tobacco and Lead Pigment Industry
posted by Danielle Citron
Professor Don Gifford has just written a terrific new book entitled Suing the Tobacco and Lead Pigment Industry: Government Litigation as Public Health Prescription (University of Michigan Press). The book critically examines tort litigation brought by state and municipal governments against manufacturers whose products caused serious public health problems, such as tobacco-related diseases and childhood lead poisoning. It explores how state attorneys general, frustrated with legislative stasis on pressing public health problems, used tort law to achieve the same ends, usurping the power of policymakers and needlessly consuming judicial resources. Professor Gifford is the Edward M. Robertson Research Professor of Law at the University of Maryland School of Law. He has written several books, including a torts casebook, and numerous articles on mass torts, products liability, and medical malpractice. State supreme courts have heavily relied on his scholarly work in ruling on the attorney general suits discussed in his book. I had a chance to talk to Professor Gifford about the book; I reproduce our conversation below.
You write about this phenomenon of state and local governments suing product manufacturers for mass consumer harms. When did this sort of litigation begin and why?
In 1994, the state of Mississippi became the first state to sue tobacco manufacturers, seeking to collect their Medicaid costs resulting from tobacco-related diseases. Virtually all other states eventually joined the litigation. Individual cancer victims had not been able to successfully sue tobacco manufacturers, because judges and juries almost inevitably assessed the blame for tobacco-related diseases on the smokers themselves. But as one of its lawyers explained, “The State of Mississippi never smoked a cigarette,” and defenses based on the victim’s own conduct would not preclude recovery by the state government.
Within five years, suits against tobacco manufacturers were followed by similar suits against handgun manufacturers and the producers of lead pigment, which caused childhood lead poisoning. Victims of childhood lead poisoning could not successfully sue because lead is a fungible product and because no particular victim could show that her harm was caused by a product manufactured by a specific manufacturer. The idea motivating the state attorneys general was that if the harm is viewed as a collective harm, the need to prove an individualized causal relationship is unnecessary.
Perhaps more important, those suing tobacco companies and pigment manufacturers were unhappy with the failure of the legislatures and administrative agencies to solve public health problems. Given the absence of political solutions, state attorneys general asked the courts to regulate tobacco companies and secure funds to remediate lead –based paint hazards.
What’s wrong with this trend?
Such litigation is troubling for three reasons. First, an empirical one: it has not worked. A dozen years after the settlement that ended the tobacco litigation, most public health experts view it a colossal failure. While the agreement protected the profitability of the large tobacco companies, it did not cause any decrease in smoking rates among young people. The negotiations served the people negotiating the deal at the table well—the state attorneys general who negotiated it and were able to proclaim great public health victories went on to run for positions as governors or U.S. senators; their litigation partners, private plaintiffs’ attorneys, earned as much as $150,000 per hour; the tobacco companies have survived and now thrive. But the public did not. The second problem was that the success of such suits required an unprincipled expansion of common law doctrines including the tort of public nuisance and the ability of the state to sue as parens patriae. That’s probably why most state supreme courts ultimately rejected the litigation against pigment manufacturers, effectively ending the litigation solution. Third, and most important, these litigation cycles shifted the responsibility for regulating products, and even taxing and spending, away from state legislatures and the administrative agencies that they create to deal with certain problems, to the state attorneys general. Often what the attorneys general proposed contradicted past legislative enactments. The governor of Mississippi actually sued the Mississippi attorney general, unsuccessfully, to stop the tobacco litigation. The attorneys general and public health advocates had criticized back-room deals in legislative committees, but their own decision-making processes were far more opaque than that of legislatures. State attorneys general have neither the competence nor the legitimacy to comprehensively regulate products or to solve public health problems.
What prompted you to write it?
Mass products torts has been an interest of mine for nearly thirty-five years, beginning with the asbestos litigation. But my focus on the issue of legislation, instead of litigation, as a solution to product-caused public health problems, began in the early 1990s.
From 1992 to 1995, I chaired Maryland’s Childhood Lead Paint Poisoning Prevention Commission. Both Lisa Kershner, the woman I hired as Executive Director, and I had experience as mediators. We banged the heads of public health officials, advocates for lead poisoned children, landlords, and paint company officials until most of us agreed upon what became the comparatively successful comprehensive Maryland legislation that required landlords to keep property in good repair and thus prevent children from encountering lead dust. Five years later, DuPont and the National Paint and Coatings Association retained me as a consultant to promote similar legislation in other state legislatures, where we achieved some success, and in the US Congress. In these roles, I had the good fortune to work directly with then-Illinois State Senator Barack Obama and with then US Senator Hillary Clinton.
I came to the view that tighter regulation through legislation, not litigation, is the answer. If it is a politically necessary in order to solve childhood lead poisoning that the paint industry make a financial contribution, let’s do it by placing an excise tax on paint, not through litigation. The litigation system eats 50-60 cents or more of each dollar. We should be careful in legal education to avoid teaching, even implicitly, that litigation is the only solution to social problems.
What’s next in your scholarly agenda?
Public nuisance, the tort at the core of the tobacco and lead pigment litigation, is also the main claim in global climate change litigation. Many of the issues are similar. There, we ask is litigation or legislation most likely to offer a solution to global climate change? One of my future projects is to take a look at comparative institutional competence in dealing with a broad range of human-caused public health threats—beginning with childhood lead poisoning and tobacco diseases, but also global climate change.