Smoking guns

Just 48 hours before Valentine's Day, Patricia Henley got a whole lot of loving from a San Francisco jury. The 52-year-old lifelong smoker was awarded a record-breaking $50 million in punitive damages, to be paid by the tobacco companies accused of causing her inoperable lung cancer.

Court-watchers said that eye-popping sum would surely lead to similar lawsuits in other states. Last week, that prediction came true as a Portland, Ore., jury was seated in a $110 million lawsuit brought by the family of Jesse Williams, a 40-year fan of Marlboros who died of small-cell carcinoma in 1997. The family members contend that Philip Morris "exploited Williams' inability to stop smoking," and therefore should compensate them for his death at age 67.

The two suits are part of a larger trend. In courtrooms across the country, lawyers are seeking to persuade jurors that corporations-tobacco companies and gun manufacturers in particular-should be held responsible for the foolish and sometimes evil choices made by individuals. "Lead us not into temptation," the plaintiffs are praying to corporate America. "But if you do, be prepared to pay."

Patricia Henley said her temptation started with her first puff at a high school dance. She was 15 at the time. That puff led to a three-pack-a-day habit that lasted for 35 years. For 30 of those years, every pack that Ms. Henley ripped open included the Surgeon General's warning that she was, in effect, killing herself. And even before that, the health hazards of smoking were well known: California had anti-smoking programs in place as early as the 1950s. Still, Ms. Henley said, despite all the warnings, the cigarette industry had addicted her and she simply could not quit.

Of course she did quit two years ago, when her lung cancer was first diagnosed. And that put her in the company of 46 million other Americans who have made the choice to stop smoking, just as they once made the choice to start.

Still, the jury bought Ms. Henley's devil-made-me-do-it argument in a big way. The award was more than three times what the plaintiff's lawyers had asked for-and it could have been bigger yet. The jury foreman said after the trial that one juror had suggested an award of $1 billion to teach the tobacco companies a lesson. "I accused them toward the end of losing touch with reality," the foreman said. "I mean, the numbers just flowed out of their mouths."

Anti-smoking activists were ecstatic. Along with predicting a tidal wave of lawsuits, they also voiced hope that the tobacco companies would finally stop making their killer product so attractive to gullible buyers.

"I would imagine that the tobacco executives are meeting at this very hour trying to figure out if it's too late to clean up [their] act," said Richard Daynard, a Northeastern University law professor who has worked with states that sued the cigarette makers. "I think really for the first time in their history they're going to have to sit down and say maybe we should go for safer cigarettes, maybe we should go to plain packaging."

Plain packaging? To those looking to shift the blame for their actions, the warm reds and refreshing greens of cigarette labels are hypnotic, evidently. Like the serpent in the garden, they're supposedly too beautiful to resist.

On Feb. 13, a day after the San Francisco verdict, a jury in Brooklyn handed down a judgment at least as shocking. For the first time ever, jurors found a group of gun manufacturers directly responsible for three deaths in the city. They went on to award $560,000 to the family of one of the victims, sending shudders down the spines of those who hold, in the words of a Boston Globe columnist, an "antiquated interpretation of the right to bear arms."

The verdict was heartening to Chicago mayor Richard Daley, whose city is suing the gun industry for $443 million. The claim: Gun manufacturers, knowing full well that handguns are illegal in the city, flood dealers in nearby suburbs with more guns than they could possibly sell for local use. Atlanta, Miami, New Orleans, and Bridgeport, Conn., have recently filed similar lawsuits, and legal experts predict a dozen more cities could join the money chase by this summer.

The Windy City already has one of the toughest gun laws in the country, a near-total ban on owning or merely possessing a handgun within city limits. Yet, much to the chagrin of those who believe that basic human goodness is corrupted by environmental factors, Chicago's gun control law has failed to control Chicagoans' fallen nature. Quite the opposite, in fact. Last year, Chicago logged more handgun-inflicted homicides than any other city in America.

Rather than bring their worldview into line with stark, statistical realities, the apostles of human goodness attempt to pin the blame on gunmakers. The presence of so many guns just outside the city limits evidently is regarded as too much temptation for the good-but-misguided teens who routinely shoot each other in gang wars on the city's South Side. If only there were no guns available in Evanston or Downers Grove or Schaumburg, surely those young murderers would stop fighting, go back to school, and become doctors or lawyers.

But if proximity leads to perdition, the question becomes, "How far away is far enough?" Would the availability of handguns in Indianapolis or St. Louis still tempt the impressionable youngsters of Chicago?

With stricter gun-control laws already in place throughout much of the Northeast, the plaintiffs in New York had to wrestle with just that question. Their argument was not about suburbs, but about huge geographic regions: Gun manufacturers, they claimed, flooded the South with too many handguns, knowing that unscrupulous traffickers would re-sell the guns in Northern states.

Never mind that gunmakers, under such reasoning, can be found liable for murder so long as handguns exist anywhere in the world. The jury still bought it. Though the monetary award was relatively small, the message it sent was significant. "It never was about money," said plaintiff Diane Zaretsky, whose husband was killed with a gun five years ago. "It was about shared responsibility."

Gun manufacturers, however, insist that such lawsuits seek to shift blame, not share responsibility. "Guns aren't inherently good or bad," says gun-industry lobbyist Richard Feldman. "But people can use a gun for good or to do evil. It is the choice of the user of the gun, not the manufacturer."

Besides, existing laws have already forced the industry to "share responsibility" with the murderer who chooses to pull the trigger. Gun dealers are federally licensed and regulated by the Bureau of Alcohol, Tobacco, and Firearms. Thanks to the federal Brady Bill and a patchwork quilt of state and local restrictions, those gun dealers can be criminally charged for selling a firearm without checking the background of the purchaser, without enforcing a waiting period, and any number of other violations.

But as the killing goes on, the responsibility must be more widely shared in order to protect the idea that the perpetrators are mere victims of their environment. Thus the recent spate of municipal lawsuits against gunmakers, some of which seek to blame the industry not only for violent crimes, but even for suicides committed with handguns.

Critics point out that personal responsibility is not the only thing that gets shifted in lawsuits against tobacco companies and gunmakers. Political responsibility shifts as well, from elected lawmakers to appointed judges.

Liberals see nothing wrong with such a power shift; in fact, they often welcome it. Susan Estrich, a law professor and former campaign manager to Democratic presidential nominee Michael Dukakis, says the move to judicial activism was necessitated by conservatives' "capture of the legislative process." Thus, last month's $107 million court decision against anti-abortion activists was supposedly justified by the fact that, "since the GOP took control of Congress in 1995, the abortion agenda has been dominated by those who want to end abortion, not those who provide it." Likewise, because Congress has not passed the so-called patients' bill of rights, courts across the country are said to be properly handing down multimillion-dollar decisions against insurers and HMOs.

Ms. Estrich, like other liberals, acknowledges that "courts, particularly federal courts, are anti-majoritarian, undemocratic institutions." But, she argues, if the democratic process doesn't yield suitably "progressive" laws, then it's perfectly proper for a handful of jurors to impose their will on millions of voters.

"In practice," she says, "juries often turn out to be more representative and less corrupt than legislative bodies. Tobacco companies, the No. 1 donors to the GOP, don't fund campaigns for jurors. Women make decisions on juries in numbers equal to men."

Thus, in Ms. Estrich's mind, the judicial takeover of the legislative function is fully justified. And in the process, the concept of personal responsibility ebbs away. Plaintiffs go before jurors-who cannot be held responsible by voters at the ballot box-to argue that others should bear responsibility for their individual choices.

The precedent set by such lawsuits has no logical limits. If gunmakers are responsible for criminals who kill with their products, then what of car makers? Why not hold GM liable for the driver who runs down a pedestrian in a fit of road rage? Likewise, if cigarette companies are held accountable for the poor health of smokers, why not force beef producers to foot the bill for open-heart surgeries? Why not sue the Keebler elves to recover the social costs of obesity?

It's tempting.