The medical evidence is quite strong as to tobacco causation of lung cancer. However, this leaves several legal questions to be answered before a plaintiff can recover from a cigarette manufacturer. The primary question at hand is: Do cigarette manufacturers impliedly warrant that their product is not dangerous to health; or, if not, do they have a duty to warn the public or the consumers in some direct way of the probable dangers to health in smoking. To phrase it differently, recovery will most likely lie in either implied warranty or in negligence, until statutory provisions are made to help with the problem

Burgess, Richard H.

English

Cleveland-Marshall College of Law

Cleveland State UniversityEngagedScholarship@CSUCleveland State Law Review Law Journals1961Lung Cancer Liability of Cigarette ManufacturersRichard H. BurgessFollow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrevPart of the Health Law and Policy Commons, and the Torts CommonsHow does access to this work benefit you? Let us know!This Article is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion inCleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact library.es@csuohio.edu.Recommended CitationRichard H. Burgess, Lung Cancer Liability of Cigarette Manufacturers, 10 Clev.-Marshall L. Rev. 35 (1961)Lung Cancer Liability of CigaretteManufacturersRichard H. Burgess*T HE REPORTED INCIDENCE RATE of lung cancer in the UnitedStates increased by over a factor of ten from 1.930 to1959.1 More than 29,000 persons died of lung cancer in the UnitedStates in 1956.2 Cigarette smoking is one of the chief suspects,and various agencies and research institutes are now sayingdefinitely that is one of the worst of the culprits.3, 4, 5The medical evidence is quite strong as to tobacco causationof lung cancer. However, this leaves several legal questions tobe answered before a plaintiff can recover from a cigarette manu-facturer. The primary question at hand is: Do cigarette manu-facturers impliedly warrant that their product is not dangerousto health; or, if not, do they have a duty to warn the public or theconsumers in some direct way of the probable dangers to healthin smoking. To phrase it differently, recovery will most likely liein either implied warranty or in negligence, until statutory pro-visions are made to help with the problem.One cannot reliably solve the issues involved by looking toprecedent, for there is very little. Few cases have met the issueface to face. The cases are beginning to come up rapidly, though,and certain types of pleadings may soon begin to win cases moreconsistently than others.No cases have come to the attention of the author in whichthe plaintiff actually has recovered damages for lung cancer dueto smoking. This is far from a static field, however, and someplaintiff may soon win damages in such a case. It should benoted that lung cancer cases are generally brought as wrongfuldeath actions.Since smoking is often a very deeply rooted habit, and con-sidering that an estimated 60% of the men and 30% of the womenin the United States are smokers,6 the problem will not readily besolved by telling people to quit smoking. Perhaps cigarette manu-* B.S. in Nuclear Engineering, North Carolina State College; Second-yearstudent at Cleveland-Marshall Law School.1 Cole, Statement of the American Cancer Society on Cigarette Smokingand Lung Cancer, 172 J. A. M. A. 1425 (1960).2 Burney, Smoking and Lung Cancer; A Statement of the Public HealthService, 171 J. A. M. A. 1828 (1959).3 171 Id. 1835, 1836.4 Cole, supra n. 1.5 Wynder, Laboratory Contributions to the Tobacco Cancer Problem, Brit-ish Med. J. 317 (1959).6 Burney, op. cit. supra note 2; referring to: Hammond, Lung CancerDeath Rates in England and Wales Compared with those in the U. S. A.,2 British Med. J. 649-654 (1958).1Published by EngagedScholarship@CSU, 196110 CLEV-MAR. L. R. (1)facturers will be able to avoid liability in the near future on thetheory of assumption of risk. This would not necessarily decreasethe public health problem, which could be approached from twosides: (1) effectively exclude the carcinogens from cigarettesmoke, 7 or (2) educate coming generations to realize that themore a person smokes, with no minimum threshold level, themore likely he is to die of lung cancer.8The Medical AspectAs stated above, lung cancer is a dread killer, having ac-counted for close to one third of all the cancer deaths in 1956,9showing a rapidly increasing death rate. A thirty year increase of1000% in the incidence rate of any disease would be alarming.Let us look at the possible causes for this mushrooming.Some of the factors involved in the increase are: (1) smok-ing, (2) inhalent carcinogens, (3) inflammatory metaplasia,(4) progress in diagnosis, (5) longevity, and (6) occupationalexposure. 10 These factors are listed in what is probably theactual order of their seriousness. The items other than smokingwill be discussed first.Carcinogens, or cancer producing agents, are becoming muchmore prevalent in the atmosphere than previously, due largelyto automotive exhaust and industrial waste." When thesechemicals are inhaled in sufficient quantities, lung cancer isproduced.Inflammatory metaplasia is a complex phenomenon involvingthe changing of normal tissue into malignant tissue due to in-flammation or irritation.Progress in diagnosis now permits many cases to be identifiedas lung cancer that would previously have been diagnosed assome form of pneumonia, or would have been hidden by tuber-culosis or otherwise missed.Many old age diseases are found much more often in thegeneral population when the average life expectancy is increased.Lung cancer is no exception.In the more highly industrialized society of today, morepeople are exposed to carcinogenic substances than ever before.Even allowing for all these factors, smoking has caused, orat least is blamed for, the major part of the increase in the lungcancer incidence rate. Several carcinogens have been isolatedfrom cigarette smoke. These substances, in sufficient concentra-7 Wynder, supra n. 5 at 321.8 Cole, supra n. 1.9 Burney, supra n. 2, referring to: National Office of Vital Statistics, 2 VitalStatistics of the United States: Mortality Data, 1956 (1958).10 Rosenblatt and Lisa, Cancer of the Lung: Pathology, Diagnosis andTreatment, 28 (1956).11 Burney, supra n. 2.Jan., 19612https://engagedscholarship.csuohio.edu/clevstlrev/vol10/iss1/6CANCER LIABILITY OF CIGARETTEStions, have caused the development of malignancy in testanimals. 12 Statistics that have been well kept show a very strongcorrelation between smoking and lung cancer.13 No thresholdlevel of cigarette consumption below which smoking is "safe" isindicated in the records. 14Several points have been brought out on either side of theissue of the culpability of cigarettes. The pro-cigarette peoplecan point out that no pulmonary carcinomas have been started intest animals by cigarette smoke. One difficulty with doing this isthat the mice and guinea pigs die too rapidly simply from over-dosages of smoke to allow malignancies to develop.' 5The theory has been postulated that there is sometimes aninherited tendency in a person that causes him both to want tosmoke and to develop lung cancer, the usual visualization of theidea being a slight bronchial irritation that both causes cancerand is particularly soothed or in some way satisfied by smoke.This theory recently received a telling blow in a report fromseveral Seventh Day Adventist hospitals. 6 It seems that statisticalevidence shows that the incidence rate of lung cancer in thegeneral population is much greater than among members of theSeventh Day Adventist Church. Also, it showed the same in-cidence rates among men and women of that church, as opposedto a five to one ratio between the sexes in the general popula-tion.17 The significance of these figures is pointed out by the factthat members of this religious group are opposed to smoking anddo not indulge in it. If the hereditary smoking-lung cancerhypothesis were to accommodate these data it would have topostulate also an hereditary disposition not to belong to theSeventh Day Adventist Church among persons who would laterin life develop lung cancer.The public has been led to believe that filter tip cigarettes are"safe," or at least much safer than those without filters. Presentfilters cannot selectively remove such specific components ascarcinogens.' 8 Many filters remove perhaps as much as 20% ofthe tars from the smoke; however, what gets through is stillpotent. Filters partially reduce the amount of inhaled carcino-gen only if the smoker doesn't smoke any more filtered cigarettesthan he would non-filtered ones, and if the same tobacco blendcontinues to be used.The emphasis so far has been on cigarettes. There is a distinctdifference in the probability of lung cancer being developed by12 Wynder, supra n. 5, 318.13 Burney, supra n. 2.14 Cole, supra n. 1.15 Wynder, supra n. 11.16 (News article), 1 British Med. J. 1465 (1959); referring to: Wynder,Lemon and Bross, 12 Cancer 1016 (1959).17 Burney, supra n. 2, 1833.18 Id. at 1835.3Published by EngagedScholarship@CSU, 196110 CLEV-MAR. L. R. (1)persons who have smoked cigars, pipes and cigarettes. Theprobability of a cigarette-only smoker contracting the disease areseven times as much as for a cigar-only smoker and almost threetimes as much as for a pipe-only smoker. 19 A cigarette smokeris twenty-six times as likely to develop lung cancer as is someonewho has never smoked.2 0There is laboratory evidence that cigarette smoke may havemore carcinogenic activity than cigar or pipe smoke, due partly tothe higher burning temperatures of cigarettes. 21 This highertemperature is due to the fineness and the compactness of thetobacco in cigarettes. Cigarette smoke is inhaled deeper and moreregularly than pipe or cigar smoke. It might also be pointedout that different curing processes are used for the differentproducts such as combinations of drying and bacterial fermenta-tion.2 2The United States Public Health Service,2 3 the AmericanCancer Society,2 4 the Swedish State Medical Council,2 5 theBritish Medical Research Council,20 and the Study Group onSmoking and Health set up by the American Cancer Society, theAmerican Heart Association, the National Cancer Institute andthe National Heart Institute 2 7 have all issued definite statements,the cumulative effect of which is that:Cigarette smoking particularly is associated with an in-creased chance of developing lung cancer * * *. Unless theuse of tobacco can be made safe, the individual person's riskof lung cancer can best be reduced by the elimination ofsmoking.281The Legal AspectWrongful death actions often involve large amounts ofmoney. The courts are generally quite conservative when itcomes to opening up new fields in which many potential suits are19 Hammond and Horn, Smoking and Death Rates-Report on 44 Monthsof Follow-up of 187,783 Men: Death Rates and Causes, 166 J. A. M. A.1294 (1958).20 Ibid.21 Wynder, supra n. 5.22 Private communication, Drenowatz (1960).23 Burney, supra n. 2.24 Cole, supra n. 1.25 Sweden, Statens Medicinska Forskingsrad, Ulredning om Tobaksroknin-gens Biologiska och Medicinska Verkninger. (State Medical Council, In-vestigation into the Biological and Medical Effects of Tobacco Smoking)(1958).26 Britain Medical Research Council, Cancer of the Lung: Recent Knowl-edge of Causative Factors, Annual Report of the Medical Research Councilfor the year 1955-1956.27 Burney, supra n. 2, 1832.28 Id. at 1836.Jan., 19614https://engagedscholarship.csuohio.edu/clevstlrev/vol10/iss1/6CANCER LIABILITY OF CIGARETTESwaiting for a breakthrough to begin collecting enormous awardsfrom a single industry. This industry, just a few years ago, wasrarely looked to as a wrongdoer of such great magnitude as to beliable for a multiplicity of hundred thousand dollar negligenceand implied warranty suits.This is a situation in which one discovers in just a very fewyears that he is not only a terrible menace to the public health,but may soon have to pay for harm that he may have doneinnocently.As mentioned above, no lung cancer cases have yet resultedin money damages actually being awarded against a cigarettemanufacturer. Several cases are currently pending on first hear-ing and on appeal. No one can predict just what will happen,except that the likelihood is that some plaintiff will win one ofthese cases sometime.The evidence in these cases rests on what is described in,Matter of Miller v. National Cabinet Co. 29 as the "possibilitydoctrine."Every medical researcher would be proud to predict thecause or causes of leukemia or other forms of cancer, andturn out to be right. This does not mean that each doctor'spet theory is more than an informed guess.30This is judicial resistance to the best scientific proof available.Perhaps in the above cited case involving benzol poisoning lead-ing to leukemia, the resistance was justified. Normally one thinksof scientific proof as more exact than legal proof. However,conclusions as to what the facts are must always be drawn fromevidence. If there is a preponderance of the evidence in one direc-tion, the court should not ignore it on such grounds as that apreponderance of the presented evidence is insufficient.The case of Pritchard v. Liggett & Meyers Tobacco Co.3 1 wasthrown out of the trial court on the ground of no substantialevidence after twenty days of hearings. The case is now beingappealed.On the other hand, in Green v. American Tobacco Co.,3 2 thejury came to the conclusion that the lung cancer had been causedby smoking the defendants' cigarettes, but awarded no damagesbecause defendant had no proven knowledge of the danger ofsmoking its cigarettes when the cause of action arose.Mitchell v. American Tobacco Co. and P. Lorillard Co. 33 hasso far set forth the principle that, at least in Pennsylvania, thestatute of limitations runs from the time when the cause of action29 8 N. Y. 2d 277, 204 N. Y. S. 2d 129 (1960).30 Id. at 138.31 A. P. Dispatch, May 4, 1960 (W. D. Pa.).32 A. P. Dispatch, August 3, 1960 (D. C. Fla.).33 183 F. Supp. 406 (M. D. Pa., 1960).5Published by EngagedScholarship@CSU, 196110 CLEV-MAR. L. R. (1)becomes apparent and objective, rather than when the plaintifflast smoked defendants' product. This case is still in the courts.The complaint alleges in part:that defendants were negligent in not warning the public andparticularly the decedent that the use of the said tobacco bysmoking would precipitate or lead to the development ofcancer, and instead of warning the public and particularlythe decedent of such bad effects from the use of theirproducts, defendants negligently and carelessly advertisedthat the use of their products had no ill effects and that theusers of their products would receive great satisfaction andenjoyment by smoking their tobaccos. 4The case of Cooper v. R. J. Reynolds Tobacco Co.3 s was dis-missed by the trial court and on several appeals partly because oftechnically improper pleadings, but primarily because of lack ofany proof of the alleged advertisements on the basis of which thesuit was brought. The cause of action was fraud. One of theadvertisements was alleged to have said:Twenty thousand doctors say that Camel cigarettes arehealthful.36when the actual advertisement referred to said only:More doctors smoke Camels than any other cigarette.3 7The case of Lartigue v. Liggett & Meyers Tobacco Co.38 wasrecently decided in New Orleans, by a jury, in favor of the de-fendant, in a $150,000 lung cancer case. Appeal is being taken.As can be seen from these cases, the trial method is neitherspeedy nor sure, but the stakes are large and the manufacturershave much to lose.It appears that this is one field of liability that could begreatly clarified and stabilized by the proper type of legislativeaction. The Senate of the State of South Dakota attempted totake drastic measures in Senate Bill No. 5 of 1959. This bill wouldhave required the imprinting of a stamp, to be placed on pack-ages of cigarettes, bearing a skull and cross-bones and the state-ment:The use of this product is not recommended by the Stateof South Dakota. The use thereof may cause death fromcancer or heart disease.The bill did not pass.There is good authority to the effect that states may placereasonable and proper regulations on various kinds of advertising84 Ibid.85 234 F. 2d 170 (C. A. Mass., 1957).88 Ibid.87 Ibid.88 A. P. Dispatch, October 11, 1960 (D. C. La.).Jan., 19616https://engagedscholarship.csuohio.edu/clevstlrev/vol10/iss1/6CANCER LIABILITY OF CIGARETTESwithout violating the guarantee of the equal protection of thelaws.39 The police power of the states may be used to prohibitor to regulate tobacco advertising, if the power is used properly.40Tobacco is not now included in the Pure Food, Drug andCosmetic Act,41, 42 but chewing gum is. It might be good toamend this act to include regulations on tobacco, especially ex-tending the misbranding provision 43 to the advertising of tobaccoproducts. This would provide penalties if the advertising wasfalse-or misleading-in any particular. A very good case couldbe made that advertisements of tobacco products for fun andpleasure are grossly misleading as to the dangers to health in-volved in smoking.Some Possible RemediesIf the public health is to be maintained, there are two possibleantidotes for the situation: (1) clean up tobacco, (2) get rid oftobacco.If the tobacco industry is to long survive, there are twopossible remedies: (1) clean up tobacco, (2) have the smokerdefinitely assume the risk.These two approaches have a common factor. If carcinogenscan be effectively excluded from tobacco smoke, all the problemsmentioned in this paper will be solved for the future. A con-siderable amount of work is being expended in this direction.44,45In the meantime there will be lawsuits and much legislationwill probably be passed. This legislation might require tobaccoproduct manufacturers to either advertise or put on their pack-ages plain, specific warnings. The warnings need not be offensiveand might refer to probable danger in using the product in "ex-cessive" amounts. Such a warning by the manufacturer, whethervoluntary or statutory, would most likely earn the manufacturerimmunity from subsequent lung cancer, heart disease and othertypes of suits covered by the smoker's assumption of the risk.Until one of the two relatively stable positions outlined aboveis reached, litigation will be fought on many grounds, includingnegligence and implied warranty, and the suits will be defendedon several grounds, including assumption of risk and lack offault. Who wins in these test cases will be as much a question ofhow the law is applied as of what the facts are.29 People v. Pennock, 249 Mich. 578, 293 N. W. 759 (1940); Ritholz v. John-son, 246 Wis. 442, 17 N. W. 2d 590 (1945).40 State v. Packer Corp., 77 Utah 500, 297 P. 1013 (1931), 29 C. J. 2d 265,note 90.41 Post, Food Additives: Legal Recognition of a Scientific Problem, 9Clev.-Mar. L. R. 503 (1960).42 21 USCA Ch. 9, Subch. II, Sec. 321.43 Id. at Sec. 343.44 Wynder, supra n. 5.45 Burney, supra n. 2.7Published by EngagedScholarship@CSU, 1961

Lung Cancer Liability of Cigarette Manufacturers

EngagedScholarship @ Cleveland State University

Cleveland State University
EngagedScholarship@CSU
Cleveland State Law Review Law Journals
1961
Lung Cancer Liability of Cigarette Manufacturers
Richard H. Burgess
Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev
Part of the Health Law and Policy Commons, and the Torts Commons
How does access to this work benefit you? Let us know!
This Article is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion in
Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact library.es@csuohio.edu.
Recommended Citation
Richard H. Burgess, Lung Cancer Liability of Cigarette Manufacturers, 10 Clev.-Marshall L. Rev. 35 (1961)
Lung Cancer Liability of Cigarette
Manufacturers
Richard H. Burgess*
T HE REPORTED INCIDENCE RATE of lung cancer in the United
States increased by over a factor of ten from 1.930 to
1959.1 More than 29,000 persons died of lung cancer in the United
States in 1956.2 Cigarette smoking is one of the chief suspects,
and various agencies and research institutes are now saying
definitely that is one of the worst of the culprits.3, 4, 5
The medical evidence is quite strong as to tobacco causation
of lung cancer. However, this leaves several legal questions to
be answered before a plaintiff can recover from a cigarette manu-
facturer. The primary question at hand is: Do cigarette manu-
facturers impliedly warrant that their product is not dangerous
to health; or, if not, do they have a duty to warn the public or the
consumers in some direct way of the probable dangers to health
in smoking. To phrase it differently, recovery will most likely lie
in either implied warranty or in negligence, until statutory pro-
visions are made to help with the problem.
One cannot reliably solve the issues involved by looking to
precedent, for there is very little. Few cases have met the issue
face to face. The cases are beginning to come up rapidly, though,
and certain types of pleadings may soon begin to win cases more
consistently than others.
No cases have come to the attention of the author in which
the plaintiff actually has recovered damages for lung cancer due
to smoking. This is far from a static field, however, and some
plaintiff may soon win damages in such a case. It should be
noted that lung cancer cases are generally brought as wrongful
death actions.
Since smoking is often a very deeply rooted habit, and con-
sidering that an estimated 60% of the men and 30% of the women
in the United States are smokers,6 the problem will not readily be
solved by telling people to quit smoking. Perhaps cigarette manu-
* B.S. in Nuclear Engineering, North Carolina State College; Second-year
student at Cleveland-Marshall Law School.
1 Cole, Statement of the American Cancer Society on Cigarette Smoking
and Lung Cancer, 172 J. A. M. A. 1425 (1960).
2 Burney, Smoking and Lung Cancer; A Statement of the Public Health
Service, 171 J. A. M. A. 1828 (1959).
3 171 Id. 1835, 1836.
4 Cole, supra n. 1.
5 Wynder, Laboratory Contributions to the Tobacco Cancer Problem, Brit-
ish Med. J. 317 (1959).
6 Burney, op. cit. supra note 2; referring to: Hammond, Lung Cancer
Death Rates in England and Wales Compared with those in the U. S. A.,
2 British Med. J. 649-654 (1958).
1Published by EngagedScholarship@CSU, 1961
10 CLEV-MAR. L. R. (1)
facturers will be able to avoid liability in the near future on the
theory of assumption of risk. This would not necessarily decrease
the public health problem, which could be approached from two
sides: (1) effectively exclude the carcinogens from cigarette
smoke, 7 or (2) educate coming generations to realize that the
more a person smokes, with no minimum threshold level, the
more likely he is to die of lung cancer.8
The Medical Aspect
As stated above, lung cancer is a dread killer, having ac-
counted for close to one third of all the cancer deaths in 1956,9
showing a rapidly increasing death rate. A thirty year increase of
1000% in the incidence rate of any disease would be alarming.
Let us look at the possible causes for this mushrooming.
Some of the factors involved in the increase are: (1) smok-
ing, (2) inhalent carcinogens, (3) inflammatory metaplasia,
(4) progress in diagnosis, (5) longevity, and (6) occupational
exposure. 10 These factors are listed in what is probably the
actual order of their seriousness. The items other than smoking
will be discussed first.
Carcinogens, or cancer producing agents, are becoming much
more prevalent in the atmosphere than previously, due largely
to automotive exhaust and industrial waste." When these
chemicals are inhaled in sufficient quantities, lung cancer is
produced.
Inflammatory metaplasia is a complex phenomenon involving
the changing of normal tissue into malignant tissue due to in-
flammation or irritation.
Progress in diagnosis now permits many cases to be identified
as lung cancer that would previously have been diagnosed as
some form of pneumonia, or would have been hidden by tuber-
culosis or otherwise missed.
Many old age diseases are found much more often in the
general population when the average life expectancy is increased.
Lung cancer is no exception.
In the more highly industrialized society of today, more
people are exposed to carcinogenic substances than ever before.
Even allowing for all these factors, smoking has caused, or
at least is blamed for, the major part of the increase in the lung
cancer incidence rate. Several carcinogens have been isolated
from cigarette smoke. These substances, in sufficient concentra-
7 Wynder, supra n. 5 at 321.
8 Cole, supra n. 1.
9 Burney, supra n. 2, referring to: National Office of Vital Statistics, 2 Vital
Statistics of the United States: Mortality Data, 1956 (1958).
10 Rosenblatt and Lisa, Cancer of the Lung: Pathology, Diagnosis and
Treatment, 28 (1956).
11 Burney, supra n. 2.
Jan., 1961
2https://engagedscholarship.csuohio.edu/clevstlrev/vol10/iss1/6
CANCER LIABILITY OF CIGARETTES
tions, have caused the development of malignancy in test
animals. 12 Statistics that have been well kept show a very strong
correlation between smoking and lung cancer.13 No threshold
level of cigarette consumption below which smoking is "safe" is
indicated in the records. 14
Several points have been brought out on either side of the
issue of the culpability of cigarettes. The pro-cigarette people
can point out that no pulmonary carcinomas have been started in
test animals by cigarette smoke. One difficulty with doing this is
that the mice and guinea pigs die too rapidly simply from over-
dosages of smoke to allow malignancies to develop.' 5
The theory has been postulated that there is sometimes an
inherited tendency in a person that causes him both to want to
smoke and to develop lung cancer, the usual visualization of the
idea being a slight bronchial irritation that both causes cancer
and is particularly soothed or in some way satisfied by smoke.
This theory recently received a telling blow in a report from
several Seventh Day Adventist hospitals. 6 It seems that statistical
evidence shows that the incidence rate of lung cancer in the
general population is much greater than among members of the
Seventh Day Adventist Church. Also, it showed the same in-
cidence rates among men and women of that church, as opposed
to a five to one ratio between the sexes in the general popula-
tion.17 The significance of these figures is pointed out by the fact
that members of this religious group are opposed to smoking and
do not indulge in it. If the hereditary smoking-lung cancer
hypothesis were to accommodate these data it would have to
postulate also an hereditary disposition not to belong to the
Seventh Day Adventist Church among persons who would later
in life develop lung cancer.
The public has been led to believe that filter tip cigarettes are
"safe," or at least much safer than those without filters. Present
filters cannot selectively remove such specific components as
carcinogens.' 8 Many filters remove perhaps as much as 20% of
the tars from the smoke; however, what gets through is still
potent. Filters partially reduce the amount of inhaled carcino-
gen only if the smoker doesn't smoke any more filtered cigarettes
than he would non-filtered ones, and if the same tobacco blend
continues to be used.
The emphasis so far has been on cigarettes. There is a distinct
difference in the probability of lung cancer being developed by
12 Wynder, supra n. 5, 318.
13 Burney, supra n. 2.
14 Cole, supra n. 1.
15 Wynder, supra n. 11.
16 (News article), 1 British Med. J. 1465 (1959); referring to: Wynder,
Lemon and Bross, 12 Cancer 1016 (1959).
17 Burney, supra n. 2, 1833.
18 Id. at 1835.
3Published by EngagedScholarship@CSU, 1961
10 CLEV-MAR. L. R. (1)
persons who have smoked cigars, pipes and cigarettes. The
probability of a cigarette-only smoker contracting the disease are
seven times as much as for a cigar-only smoker and almost three
times as much as for a pipe-only smoker. 19 A cigarette smoker
is twenty-six times as likely to develop lung cancer as is someone
who has never smoked.2 0
There is laboratory evidence that cigarette smoke may have
more carcinogenic activity than cigar or pipe smoke, due partly to
the higher burning temperatures of cigarettes. 21 This higher
temperature is due to the fineness and the compactness of the
tobacco in cigarettes. Cigarette smoke is inhaled deeper and more
regularly than pipe or cigar smoke. It might also be pointed
out that different curing processes are used for the different
products such as combinations of drying and bacterial fermenta-
tion.2 2
The United States Public Health Service,2 3 the American
Cancer Society,2 4 the Swedish State Medical Council,2 5 the
British Medical Research Council,20 and the Study Group on
Smoking and Health set up by the American Cancer Society, the
American Heart Association, the National Cancer Institute and
the National Heart Institute 2 7 have all issued definite statements,
the cumulative effect of which is that:
Cigarette smoking particularly is associated with an in-
creased chance of developing lung cancer * * *. Unless the
use of tobacco can be made safe, the individual person's risk
of lung cancer can best be reduced by the elimination of
smoking.281
The Legal Aspect
Wrongful death actions often involve large amounts of
money. The courts are generally quite conservative when it
comes to opening up new fields in which many potential suits are
19 Hammond and Horn, Smoking and Death Rates-Report on 44 Months
of Follow-up of 187,783 Men: Death Rates and Causes, 166 J. A. M. A.
1294 (1958).
20 Ibid.
21 Wynder, supra n. 5.
22 Private communication, Drenowatz (1960).
23 Burney, supra n. 2.
24 Cole, supra n. 1.
25 Sweden, Statens Medicinska Forskingsrad, Ulredning om Tobaksroknin-
gens Biologiska och Medicinska Verkninger. (State Medical Council, In-
vestigation into the Biological and Medical Effects of Tobacco Smoking)
(1958).
26 Britain Medical Research Council, Cancer of the Lung: Recent Knowl-
edge of Causative Factors, Annual Report of the Medical Research Council
for the year 1955-1956.
27 Burney, supra n. 2, 1832.
28 Id. at 1836.
Jan., 1961
4https://engagedscholarship.csuohio.edu/clevstlrev/vol10/iss1/6
CANCER LIABILITY OF CIGARETTES
waiting for a breakthrough to begin collecting enormous awards
from a single industry. This industry, just a few years ago, was
rarely looked to as a wrongdoer of such great magnitude as to be
liable for a multiplicity of hundred thousand dollar negligence
and implied warranty suits.
This is a situation in which one discovers in just a very few
years that he is not only a terrible menace to the public health,
but may soon have to pay for harm that he may have done
innocently.
As mentioned above, no lung cancer cases have yet resulted
in money damages actually being awarded against a cigarette
manufacturer. Several cases are currently pending on first hear-
ing and on appeal. No one can predict just what will happen,
except that the likelihood is that some plaintiff will win one of
these cases sometime.
The evidence in these cases rests on what is described in,
Matter of Miller v. National Cabinet Co. 29 as the "possibility
doctrine."
Every medical researcher would be proud to predict the
cause or causes of leukemia or other forms of cancer, and
turn out to be right. This does not mean that each doctor's
pet theory is more than an informed guess.30
This is judicial resistance to the best scientific proof available.
Perhaps in the above cited case involving benzol poisoning lead-
ing to leukemia, the resistance was justified. Normally one thinks
of scientific proof as more exact than legal proof. However,
conclusions as to what the facts are must always be drawn from
evidence. If there is a preponderance of the evidence in one direc-
tion, the court should not ignore it on such grounds as that a
preponderance of the presented evidence is insufficient.
The case of Pritchard v. Liggett & Meyers Tobacco Co.3 1 was
thrown out of the trial court on the ground of no substantial
evidence after twenty days of hearings. The case is now being
appealed.
On the other hand, in Green v. American Tobacco Co.,3 2 the
jury came to the conclusion that the lung cancer had been caused
by smoking the defendants' cigarettes, but awarded no damages
because defendant had no proven knowledge of the danger of
smoking its cigarettes when the cause of action arose.
Mitchell v. American Tobacco Co. and P. Lorillard Co. 33 has
so far set forth the principle that, at least in Pennsylvania, the
statute of limitations runs from the time when the cause of action
29 8 N. Y. 2d 277, 204 N. Y. S. 2d 129 (1960).
30 Id. at 138.
31 A. P. Dispatch, May 4, 1960 (W. D. Pa.).
32 A. P. Dispatch, August 3, 1960 (D. C. Fla.).
33 183 F. Supp. 406 (M. D. Pa., 1960).
5Published by EngagedScholarship@CSU, 1961
10 CLEV-MAR. L. R. (1)
becomes apparent and objective, rather than when the plaintiff
last smoked defendants' product. This case is still in the courts.
The complaint alleges in part:
that defendants were negligent in not warning the public and
particularly the decedent that the use of the said tobacco by
smoking would precipitate or lead to the development of
cancer, and instead of warning the public and particularly
the decedent of such bad effects from the use of their
products, defendants negligently and carelessly advertised
that the use of their products had no ill effects and that the
users of their products would receive great satisfaction and
enjoyment by smoking their tobaccos. 4
The case of Cooper v. R. J. Reynolds Tobacco Co.3 s was dis-
missed by the trial court and on several appeals partly because of
technically improper pleadings, but primarily because of lack of
any proof of the alleged advertisements on the basis of which the
suit was brought. The cause of action was fraud. One of the
advertisements was alleged to have said:
Twenty thousand doctors say that Camel cigarettes are
healthful.36
when the actual advertisement referred to said only:
More doctors smoke Camels than any other cigarette.3 7
The case of Lartigue v. Liggett & Meyers Tobacco Co.38 was
recently decided in New Orleans, by a jury, in favor of the de-
fendant, in a $150,000 lung cancer case. Appeal is being taken.
As can be seen from these cases, the trial method is neither
speedy nor sure, but the stakes are large and the manufacturers
have much to lose.
It appears that this is one field of liability that could be
greatly clarified and stabilized by the proper type of legislative
action. The Senate of the State of South Dakota attempted to
take drastic measures in Senate Bill No. 5 of 1959. This bill would
have required the imprinting of a stamp, to be placed on pack-
ages of cigarettes, bearing a skull and cross-bones and the state-
ment:
The use of this product is not recommended by the State
of South Dakota. The use thereof may cause death from
cancer or heart disease.
The bill did not pass.
There is good authority to the effect that states may place
reasonable and proper regulations on various kinds of advertising
84 Ibid.
85 234 F. 2d 170 (C. A. Mass., 1957).
88 Ibid.
87 Ibid.
88 A. P. Dispatch, October 11, 1960 (D. C. La.).
Jan., 1961
6https://engagedscholarship.csuohio.edu/clevstlrev/vol10/iss1/6
CANCER LIABILITY OF CIGARETTES
without violating the guarantee of the equal protection of the
laws.39 The police power of the states may be used to prohibit
or to regulate tobacco advertising, if the power is used properly.40
Tobacco is not now included in the Pure Food, Drug and
Cosmetic Act,41, 42 but chewing gum is. It might be good to
amend this act to include regulations on tobacco, especially ex-
tending the misbranding provision 43 to the advertising of tobacco
products. This would provide penalties if the advertising was
false-or misleading-in any particular. A very good case could
be made that advertisements of tobacco products for fun and
pleasure are grossly misleading as to the dangers to health in-
volved in smoking.
Some Possible Remedies
If the public health is to be maintained, there are two possible
antidotes for the situation: (1) clean up tobacco, (2) get rid of
tobacco.
If the tobacco industry is to long survive, there are two
possible remedies: (1) clean up tobacco, (2) have the smoker
definitely assume the risk.
These two approaches have a common factor. If carcinogens
can be effectively excluded from tobacco smoke, all the problems
mentioned in this paper will be solved for the future. A con-
siderable amount of work is being expended in this direction.
44
,
45
In the meantime there will be lawsuits and much legislation
will probably be passed. This legislation might require tobacco
product manufacturers to either advertise or put on their pack-
ages plain, specific warnings. The warnings need not be offensive
and might refer to probable danger in using the product in "ex-
cessive" amounts. Such a warning by the manufacturer, whether
voluntary or statutory, would most likely earn the manufacturer
immunity from subsequent lung cancer, heart disease and other
types of suits covered by the smoker's assumption of the risk.
Until one of the two relatively stable positions outlined above
is reached, litigation will be fought on many grounds, including
negligence and implied warranty, and the suits will be defended
on several grounds, including assumption of risk and lack of
fault. Who wins in these test cases will be as much a question of
how the law is applied as of what the facts are.
29 People v. Pennock, 249 Mich. 578, 293 N. W. 759 (1940); Ritholz v. John-
son, 246 Wis. 442, 17 N. W. 2d 590 (1945).
40 State v. Packer Corp., 77 Utah 500, 297 P. 1013 (1931), 29 C. J. 2d 265,
note 90.
41 Post, Food Additives: Legal Recognition of a Scientific Problem, 9
Clev.-Mar. L. R. 503 (1960).
42 21 USCA Ch. 9, Subch. II, Sec. 321.
43 Id. at Sec. 343.
44 Wynder, supra n. 5.
45 Burney, supra n. 2.
7Published by EngagedScholarship@CSU, 1961


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Lung Cancer Liability of Cigarette Manufacturers

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