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Jewish World Review June 13, 2001 / 23 Sivan, 5761

Paul Campos

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Consumer Reports

Outrageous verdicts are genteel theft -- EVEN the most abject apologists for America's litigation system may have trouble digesting the verdict in the Richard Boeken case. Boeken is a 56-year-old securities broker suffering from brain and lung cancer, who sued the Philip Morris Cos.

Boeken testified under oath that he did not become aware of warnings regarding the dangers of cigarettes until the mid-1990s. As a reward for perjuring himself in such a laughably ludicrous fashion Boeken has won a $3 billion judgment from a Los Angeles jury.

Think about that: Instead of punishing Boeken for lying under oath about the most crucial aspect of his case -- not to mention doing so in a way that would be an insult to their collective intelligence, if they had any -- the jury awarded him a sum of cash equal to what a working class person (that is, a typical smoker) would earn over the course of approximately 3,000 lifetimes.

The legal justification for such a bizarre outcome is that the verdict will "punish" the cigarette industry. This, too, is an egregious lie. Consider that the price of Philip Morris stock has nearly tripled over the course of the last year, despite verdicts against the company running into the tens of billions of dollars over this same space of time.

Only an idiot -- i.e., a tort lawyer's ideal juror -- could fail to understand that such verdicts do not actually punish the cigarette companies, who have already entered into a formal agreement with the government that allows them to fix prices at monopolistic rates in order to pass the costs of litigation onto cigarette smokers.

And only a fool could fail to grasp that, despite such legal "punishments" for the act of selling cigarettes, selling cigarettes will remain legal in America. For one thing, it is difficult to believe our public policymakers have not learned anything from the spectacular failure of previous attempts to eliminate the market for drugs and alcohol through legal prohibition.

By now even the most benighted politician must understand that making cigarettes illegal would only worsen the social ills they cause. Given this, the idea of punishing cigarette sellers for the act of selling their product to willing adults appears to be profoundly irrational.

Why, after all, are cigarettes considered "bad?" That smoking is hazardous to one's health is undeniable, and indeed the absurd lies of the cigarette companies regarding this fact provide the only good argument for legal action against them.

Still, many activities are hazardous to one's health -- yet we do not normally consider that fact by itself to be a sufficient basis for condemning the behavior. Climbing mountains, sky diving, driving sports cars, drinking martinis, eating potato chips: everyone knows that it is on the whole safer to avoid such things.

In all such cases, whether the risks involved are worth the pleasures to be had is something that can only be determined by the individuals who decide whether or not to engage in the activity.

At bottom, the hysteria that fuels the war on cigarette smokers is based on the contemptible idea that the point of life is to stay alive for as long as possible. This idea feeds off two otherwise conflicting strains in American culture: a sort of metaphysical Darwinism that defines "success" as simple survival, and a twisted brand of Puritanism that considers all pleasure to be bad by definition. Combine these two impulses with the rapacity of the most shameless members of the legal profession, and you get cases like this.

Ultimately, such verdicts accomplish one thing: They transfer wealth from cigarette smokers to lawyers. In other words, such suits are a genteel species of theft. That those who are being robbed are generally poor and working class is not exactly a coincidence. And to claim this brand of theft is for the good of its victims gives new meaning to the word chutzpah.

Paul Campos is a professor of law at the University of Colorado. Comment by clicking here.


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© 2001, Paul Campos