'The Runaway Jury' is No Myth
Wall Street Journal, July 18, 2000

By Walter Olson

Just over four hours. That's how long six Miami jurors spent in deliberations before decreeing the expropriation of the U.S.-owned tobacco industry world-wide, the resulting $145 billion in plunder to be divvied up among a class of sick Florida residents that included many of the jurors' own friends and neighbors. In the future, we trust, Americans will not be heard to complain about such relatively penny-ante confiscations as the invasion of white-owned farms in Zimbabwe by Robert Mugabe's backers, or the seizure of Cuban emigres' holdings by Fidel Castro.

The size of the verdict came as little surprise to those who'd followed trial judge Robert Kaye's relentlessly anti-defense rulings. For example, Judge Kaye ruled that in calculating a basis for punitive damages there was no reason jurors should feel obliged to stop at a sum representing the tobacco companies' net worth. The judge ruled that it was proper to place before the jury the companies' capacity to borrow funds to help meet a punitive award, and also agreed that their operations world-wide could be considered in assessing those damages. People in other countries might wonder why their local cigarette trade is to be viewed as a cash cow for an American jury to milk.

The Art of Jury Selection

Even before the punitive stage was reached, the trial had gone really, really well for plaintiff's attorney Stanley Rosenblatt. Every art of selection had been brought into play to ensure that the jury was unrepresentative of American, Floridian or Miamian sentiment. Eight hundred prospects got purged before the final six regulars and six alternates were chosen. The rejects included a former smoker of three decades excused from sitting on the case for saying, "I just think people are and have been well aware of the detriments of smoking."

Throughout the proceedings, according to grumblings from the defense side, Mr. Rosenblatt took care to pack the courtroom with attendees wheezing loudly amid oxygen tanks and voice boxes. There's a long tradition in other courtrooms, if not this one, of ruling this sort of tactic out of bounds as manipulative and prejudicial.

Nor had defendants any success in objecting to what they said was inflammatory race-baiting on the stand by a plaintiff's expert who hammered away at the wickedness of ethnically targeted marketing. (The jury consisted of four blacks, one Hispanic and one non-Hispanic white.)

The familiar, self-justifying juror interviews have already begun hitting the papers. "There was no sense of animosity toward any one company," claimed the foreman. Well, no, the animosity was toward all, indiscriminately.

The cheering section for the lawsuit -- the White House, the New York Times, Sen. Richard Durbin (D-Ill.), bossy public health groups from the American Lung Association on down -- are now likely to instruct us on its supposed lessons. One is that "the people have spoken," and that to express any qualms about its result is to reveal oneself as an enemy of that venerable institution, the representative jury.

Another is that since this jury spent two years listening to the lawyers bicker and rant, its members count as the real experts on the suit's subject matter, and we skeptical outsiders should shut up, not having heard all the evidence. As of Friday evening, the Web site of the Association of Trial Lawyers of America was still hyping recent studies that, it says, refute the "claim that punitive awards are out of control," and "reveal the 'runaway jury' claim to be a complete myth."

Such arguments might detain us longer were this the only jury ever invited to exercise its anger against the tobacco industry. But the fact is that trial lawyers have been going to jury after jury for years, and -- despite liberal use of forum-shopping and jury-selection tactics -- still have lost the great majority of such trials. And there's every reason to believe that the juries that render defense verdicts are in fact more reflective of public opinion than last week's Miami jury. Last November an ABC News poll of 1,010 adults found that by a 60% to 34% margin the public doesn't believe tobacco companies should be made to pay damages for smokers' illnesses.

But a 60% to 34% margin is not so wide that trial lawyers won't sometimes luck into a certain number of juries drawn from among the 34% view. At which point it doesn't seem to matter in the least what the 60% may think -- the system invites the 34% to sweep all the chips off the table.

In this case it's the majority that shows the better understanding of the rule of law, because what's being sought here is retroactive punishment -- long abhorred as tyrannical. "The Restatement (Second) of Torts," put out in the mid-1960s by the American Law Institute and still authoritative, specifically cites tobacco as an example of a product that's injurious but does not on that account expose the maker to liability. You can argue that this legal approach is outdated and ought to change, but if so the change ought to be prospective, just as when Prohibition went into effect liquor sales were prohibited from a certain day forward. It wasn't considered appropriate to seize distillers' and tavern keepers' assets as punishment for having denied the addictiveness of Demon Rum -- perhaps because the temperance activists weren't working for contingency fees.

Endlessly repeated tobacco trials are an instance of multiple jeopardy, a firing-squad arrangement in which 90% of juries may choose to fire into the air, believing the defendants unworthy of punishment, yet find their opinions rendered meaningless when the other 10% aim as they're told. In this case, Judge Kaye prohibited the defendants from arguing to the jury that they'd already been punished enough by the vast, $246-billion multistate tobacco settlement, even though that settlement took place in the shadow of demands for punitive damages. That settlement, the largest in history, did nothing to protect cigarette makers from a further massive punitive award here, just as, should they somehow manage to pay this award, they will still be open to demands for more punitive damages in other suits over the same past sins, again and again.

The defendants in this case have plenty of legitimate grounds on which to obtain a mistrial, a reversal of "class certification," or some other win on appeal. But the Florida legal system is increasingly one where anything can happen: Its Supreme Court upheld explicitly retroactive legislation aimed at letting the state win its Medicaid-reimbursement suit, and Sunshine State tobacco lawyers hold enormous political sway, especially following their award of $3.4 billion in state-settlement fees, a goodly chunk of which is being recycled into political donations. (Palm Beach superlawyer Robert Montgomery hosted a big fundraiser for Al Gore this spring.)

Millions in Legal Fees

One possible outcome is a settlement, which might prove quite lucrative for Mr. Rosenblatt. Last time he cut a tobacco deal, the result was a $300 million set-aside for a charitable research group, no cash outlay at all for his client class of flight attendants exposed to secondhand smoke in airliner cabins, and $46 million in legal fees and expenses for Mr. Rosenblatt and his wife, Susan.

Last week's Time magazine profiled the new tobacco-lawyer elite, starting with zillionaire Mississippian Dickie Scruggs. "Ask Scruggs if trial lawyers are trying to run America, and he doesn't bother to deny it. 'Somebody's got to do it,' he says, laughing." Must we let them?

* * *

Walter Olson is a senior fellow at the Manhattan Institute and edits Overlawyered.com.

[Earlier article (at time of summer 1999 compensatory verdict) on same case]

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