After first demonstrating that legislative and administrative attempts to regulate tobacco have failed for the most part, Mr. Kelder and Professor Daynard argue that litigation may be the best way to attack tobacco consumption and the health problems associated with it. Establishing the need to curtail tobacco consumption, the authors begin their article by discussing the addictive and deadly nature of the product. Kelder and Daynard pay special attention to the dangers of the tobacco industry's apparently successful efforts to market their products to minors. Acknowledging that such policy problems are usually addressed through legislative and regulatory bodies, the authors illustrate the inability, and indeed failure, of these institutions to tackle the problem. The article then turns to what it proposes to be the most viable alternativeClitigation as an effective means of tobacco control. The article notes that recent efforts to sue tobacco companies are by no means original. The authors chronicle the relative failure of two waves of lawsuits against the industryCthe "first wave" of litigation took place from 1954 to 1973 with the "second wave" running from 1983-1992. Kelder and Daynard detail the current "third wave" of litigation and illustrate why current attempts to sue tobacco companies are likely to succeed. Dividing this third wave into product liability cases and state medical reimbursement suits, the authors show that the impediments facing plaintiffs in the first two waves are no longer insurmountable. Specifically, the authors demonstrate that internal industry documents enable plaintiffs to circumvent the legal defenses that the industry successfully employed in the first two waves. Furthermore, new procedural tactics enable plaintiffs to litigate without the fear of bankruptcy or other tangential, yet devastating consequences. The article concludes that the third wave of litigation and the resulting paradigm of tobacco litigation could yield highly effective health policy for the public and catastrophic results for the industry. |
