Basic Fairness

In Sickness and in Health

Copyright 2001 The Washington Post
The Washington Post
January 15, 2001, Monday, Final Edition
SECTION: EDITORIAL; Pg. A20
LENGTH: 549 words
HEADLINE: In Sickness and in Health
BODY:

IT USED TO be that only sick smokers sued cigarette makers. But in a case that opened last week in West Virginia, healthy smokers sued the industry, demanding that it pay the cost of monitoring them with medical tests. When sick smokers sued, they argued that they did not realize the dangers of smoking until it was too late. Now healthy smokers are saying that they fully realize those dangers, that they make no promise to quit and that they want to collect money from the tobacco companies anyway.

In some circumstances, such "medical monitoring" suits make sense. If people are unwittingly exposed to a health risk through no fault of their own, and if this exposure creates a high risk of a disease that can be best treated if detected early, then it may be fair to hold the responsible party liable for the cost of medical monitoring. Courts in about a third of the states allow this kind of remedy, and last year people who were possibly exposed to heart or lung disease as a result of taking a diet drug called fen-phen won a settlement that included money for medical tests. But smokers do not expose themselves to harm unwittingly; indeed, their knowledge of the potential harm is displayed by their decision to file suit.

The smokers could argue that, while they now recognize the harm, they did not do so when they began smoking -- and that they are now hooked. The trouble is that many smokers are capable of giving it up. The science suggests that people get addicted differently: Some can quit easily, many only with difficulty and a few may be almost incapable of shaking the habit. Because of this variation, the West Virginia suit was allowed to go ahead as a class action only after the plaintiffs chose not to allege addiction. But without that allegation, the smokers are reduced to demanding that the tobacco firms pay to take care of their health while at the same time not promising to take care of it themselves.

Moreover, even without the allegation of addiction, the decision to certify the West Virginia class seems dubious. Over the course of the long tobacco wars, trial lawyers have attempted to bring some 90 class-action suits against the industry, but before last week only one other -- a Florida case that, pending appeal, has resulted in absurdly large damages of $ 145 billion to be awarded against the industry -- had made it to trial. If judges generally believe that lumping smokers into large classes is wrong because of the variation among sick smokers, smokers who do not even have disease in common presumably pose even greater problems. The West Virginia case purports to represent all smokers who have consumed a pack a day for five years, even though there are huge differences in the risks faced by smokers with different lifestyles, genetic predispositions, and so on.

The tobacco industry sells a product that kills people and for years lied to cover up that truth. It lately has conceded that tobacco is dangerous and addictive, yet it resists marketing controls and other regulation, especially when it comes to its expanding market in developing countries. But some court actions can't be justified no matter how reprehensible the target. Smokers need to accept their share of responsibility for their own actions.

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