Cipollone v. Liggett Group: 1988

Plaintiff: Estate of Rose Cipollone
Defendant: Liggett Group
Plaintiff Claims: That the defendant, a cigarette company, was liable for Rose Cipollone's death from cancer because it failed to warn consumers about the dangers of smoking
Chief Defense Lawyer: H. Bartow Farr Ill
Chief Lawyers for Plaintiff: Alan Darnell, Marc Z. Edell, and Cynthia Walters
Judge: H. Lee Sarokin
Place: Newark, New Jersey
Dates of Trial: February 1-June 13, 1988
Decision: Jury awarded plaintiff damages of $400,000; reversed on appeal, and lawsuit later dropped

SIGNIFICANCE: Despite encouraging early victories, the lesson of the Cipollone case is that smokers face very burdensome legal difficulties in suing cigarette companies.

Rose Cipollone of Little Ferry, New Jersey, was born in 1926. Like many people of her generation, she took up smoking at an early age, in her case, 16. Although medical studies examining evidence of a link between smoking and cancer began to appear as early as the 1920s, they' were not widely read, and the U.S. Surgeon General didn't look into the issue until 1962. In 1966 the first federal law on cigarette warning labels went into effect, and in 1969 Congress passed a stricter law requiring that the label, "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health," be printed on all cigarette packs.

Decade after decade, the cigarette industry spent billions of dollars on advertising. Newspaper, magazine, radio, and television ads extolled the pleasures of smoking. There was no mention of any risk, and the tobacco companies vigorously fought government regulation in the 1960's and 1970's with studies of their own that denied any health risk from smoking. Meanwhile, Cipollone had been smoking since 1942. Her favorite brands were Chesterfields and L&M, manufactured by Liggett Group, Inc., one of the smaller tobacco companies.

In 1981, Dr. Nathan Seriff diagnosed Cipollone as having lung cancer, caused by smoking cigarettes. Cipollone filed a lawsuit against Liggett on August 1, 1983 in the U.S. District Court for the District of New Jersey in Newark. She was represented by Alan Darnell, Marc Z. Edell, and Cynthia Walters, and the judge was H. Lee Sarokin. Of Liggett's team of defense lawyers, who worked to prevent the case from going to trial for nearly five years, the most prominent lawyer was H. Bartow Farr III… Early in the litigation, however, Cipollone won an important victory when Sarokin refused to dismiss the case on the grounds that Liggett's compliance with the federal warning-label law absolved Liggett from further legal liability:

This case presents the issue of whether cigarette manufacturers can be subjected to tort liability if they have complied with the federal warning requirement.… In effect, the cigarette industry argues that such compliance immunizes it from liability to anyone who has chosen to smoke cigarettes notwithstanding the warning, that federal legislation has created an irrebuttable presumption that the risk of injury has been assumed by the consumer. This court rejects that contention.

Cippolone Dies, But Her Case Proceeds

Sarokin's decision was issued on September 20, 1984, and generated enormous publicity about the case. The prospect of successful smokers' litigation sent tobacco company stocks into a tailspin. Unfortunately for her, Cipollone died shortly thereafter, on October 21, 1984. Her husband, Antonio Cipollone, continued the case on behalf of her estate. After years of foot-dragging and delays by Liggett's attorneys, the Cipollone case finally went to trial on February 1, 1988. Just getting the case to trial was an accomplishment: of the 300 lawsuits on record against tobacco companies in the past 40 years, fewer than 10 have actually gone to trial.

Edell, the senior attorney in the Cipollone legal team, described Liggett's legal defenses to the jury as basically a statement to all smokers:

If you trusted us, if you thought we would test, if you thought we would warn, if you believed our statement in the press, if you believed our advertisements, if you were stupid enough to believe us, then you deserve what you got.

Cipollone's attorneys introduced documents showing that the cigarette companies were aware of smoking-related health risks before the government took any action but failed to disclose these risks to the consumer. For example, one Liggett report from 1961 described certain ingredients in cigarettes as "(a) cancer-causing, (b) cancer-promoting, (c) poisonous, (d) stimulating, pleasurable, and flavorful."

On June 13, 1988, the jury returned its verdict. It was a very conservative finding, mostly based on Liggett's failure prior to the 1966 law to warn smokers like Cipollone about the dangers of smoking. Further, the jury found that Cipollone was 80 percent responsible for her death by smoking, and Liggett only 20 percent responsible. Nevertheless, the jury assessed $400,000 in damages against Liggett, the first such award in tobacco-litigation history.

Liggett appealed, and the case ultimately reached the U.S. Supreme Court on October 8, 1991. During the lengthy appellate process, however, Antonio Cipollone died in 1990. His son, Thomas Cipollone of Grass Valley, California, carried on the case on behalf of both his parents' estates. The Supreme Court required the parties to re-argue the case on January 13, 1992, and issued its opinion on June 24, 1992. Although the court ruled in a 6-3 decision that health warnings on cigarette packs don't shield cigarette companies like Liggett from personal-injury lawsuits, the court did impose tougher evidentiary requirements concerning the companies' advertising and promotions. The case would have to be retried.

Thomas Cipollone and the attorneys had had enough. After nine years of expensive litigation, they were back at square one, facing even more timeconsuming hurdles thanks to the Supreme Court's decision. To make matters worse, Judge Sarokin had been removed from the case for comments he had made elsewhere about how he believed that the tobacco industry was hiding evidence. On November 5, 1992, the Cipollone family dropped their case against Liggett. While the initial jury verdict was the first of its kind in American legal history, the ultimate lesson is that the tobacco companies can delay and delay in court until their victims die or give up in despair.

—Stephen G. Christianson

Suggestions for Further Reading

Crudele, John. "The Smoke Clears: Tobacco Liability Suits Decline." New York (November 14, 1988): 28.

"For the First Time Ever." The New, Republic (July 4, 1988): 10-11.

Gostin, Larry 0. "Tobacco Liability and Public Health Policy." Journal of the American Medical Association (December 11, 1991): 3178-3182.

Spencer, Leslie. "Just Smoke." Forbes (December 23, 1991): 41-42.

"Where There's Smoke …" Time (April 8, 1991): 55.