Cigarettes v. Lollipops
As both a licensed physician and a lawyer,Florida's Lawrence V. Hastings was uniquely qualified to participate inthe growing controversy over whether cigarettes cause cancer, and ifso, whether the companies that make them are liable for the damage theycause.Dr. Hastings has not failed his calling.
Unexpected Evidence. Ever since 1957, after Miami Contractor Edwin M.Green learned that he had lung cancer, Dr. Hastings has been in courtsuing the American Tobacco Co. for $1,500,000 in damages, chargingthat its Lucky Strike cigarettes, which Green smoked at the rate of asmany as three packs a day for 32 years, caused the contractor'sillness. While the first trial was in progress, Green provided someunexpected evidence by dying of the disease.
Hastings won a verdict that cigarettes did indeed cause Green's death,but the jury refused to award any damages to Green's wife and son.Since the knowledge of tobacco's dangers was not established untilthe mid-1950s, the jury agreed that the American Tobacco Co. could nothave known during most of Green's smoking years that cigarettes cancause cancer. Later, after the Florida Supreme Court ruled that Floridalaw subjects any product sold for public consumption to an "impliedwarranty" that it is not harmful, the Federal Court of Appeals ordereda retrial of the Green case.
Question of Numbers. When the retrial opened in Miami Federal DistrictCourt last month, Dr. Hastings had hopes of winning the first damageverdict in the history of the tobacco-cancer controversy. His hopesbegan to fade when Judge Emett C. Choate started his charge to thejury. Implied warranty, explained the judge, only meant that theproduct must be "reasonably fit and safe for the ordinary purpose forwhich it was sold." The issue, he continued, was not whether Green diedof cigarette-induced cancer; another jury had decided that. This jurywas simply to determine whether "a large segment, a responsiblesegment, a significant number" of smokers were endangered.
Under that definition, the tobacco company was found not guilty ofbreaching its implied warranty. Complained Dr. Hastings: "If a candycompany sold one poisoned lollipop that caused one death, it would notbe necessary to show that its lollipops had killed off a sizablesegment of the population."
Last week the doctor-lawyer asked for a new trial on the grounds that"the verdict was contrary to the evidence." As lawyer, he faced theproblem that the jury was assessing the danger not of one unusuallollipop, but the possible danger of countless ordinary cigarettes to a"significant number" of people; as doctor, he must have realized thatfor all the convincing statistics pointing to a relationship betweensmoking and lung cancer, the tobacco companies can still point tomillions of people who smoke and do not contract the disease.
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