The Illogical Basis of That $23 Billion Award Against R.J. Reynolds

On Friday a jury in Escambia County, Florida,

decided that R.J. Reynolds should pay $23 billion in
punitive damages to Cynthia Robinson, the widow of a smoker who
died of lung cancer in 1996. It is not the largest award ever in a
case involving a single smoker, but it’s close. And like a
California jury’s 2002
award of $28 billion to a smoker who sued Philip Morris (a sum
that the judge later reduced by
a factor of 1,000), the case illustrates both the arbitrariness of
punitive damages and the implausibility of claiming that tobacco
companies managed to conceal the hazards of their products.

Although the main purpose of tort litigation is supposed to be
making victims whole, so-called punitive damages explicitly aim to
punish wrongdoers. That is usually the function of the criminal
justice system, which therefore provides additional
protections for defendants, including a higher standard of proof,
stricter evidence rules, and penalties prescribed by statute.
Attorneys seeking punitive damages do not have to contend with any
of those safeguards.

The very concept of punitive damages is oxymoronic, since
actual damages (a.k.a. compensatory damages) are a measure of the
harm caused by a tort. Punitive damages, by contrast, express a
jury’s outrage at the defendant’s conduct and may be completely
unmoored from the injury suffered by the plaintiff (who
nevertheless gets the money). In this case, the punitive damages
are about 1,400 times the actual damages,
which the jury put at $16 million. That huge mutiple seems to
violate
Florida law, which caps the ratio of punitive to
compensatory damages at three or four unless “the defendant had a
specific intent to harm the claimant”—a description that clearly
does not apply to a tobacco company with millions of customers,
even if it prevented them from making informed decisions by hiding
the dangers posed by its products. 

The latter claim, which is central to this sort of
lawsuit, is hard to credit. The jury evidently was swayed by
evidence indicating that R.J. Reynolds executives questioned the
hazards and addictiveness of cigarettes in public while
acknowledging them in private. There surely is nothing to admire in
that sort of duplicity, but did it actually fool anyone? The first
surgeon general’s report linking smoking to deadly diseases came
out in 1964, and the subject received a great deal of attention
during the ensuing decade. By the time Cynthia Robinson’s husband
began smoking (around the age of 13, according to her testimony,
which would have been 1973), every pack of cigarettes carried a
warning stating that “The Surgeon General Has Determined That
Cigarette Smoking Is Dangerous to Your Health.” In 1985 that
statement was replaced by rotating warnings referring to specific
risks such as lung cancer, heart disease, and ephysema. As for the
addictive potential of tobacco, it has been widely acknowledged for
centuries, as I show in my
book on the anti-smoking movement.

Anyone who began smoking in the 1970s and continued smoking for
the next two decades voluntarily assumed the well-known risks
associated with the habit. Nothing R.J. Reynolds said or failed to
say changes that reality, because it is impossible to conceal
common knowledge, no matter how much the tobacco companies might
have wished otherwise.