Vanderbilt Law Review

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On February 23, 1993 The Washington Post published an article entitled, "Tobacco's Last Gasp? Towards a Smoke-Free Society." The article tested the hypothesis that in the near future no one would smoke in the United States. Its focus was on means: how would America reach a point when virtually no one smoked? The predictions ran the usual gamut of policy devices. Although their order of appearance may be random, the list was as follows: legal prohibitions on smoking in public, taxes, social pressure, increased health insurance costs to smokers, and (finally) litigation.

The Washington Post article noted that just one year earlier the United States Supreme Court opened the door to lawsuits based on fraud, but that "so far" tobacco lawsuits had been ineffective. It quoted one lawyer who suggested that, like asbestos, soon the "floodgates" would open and there could be "hundreds of thousands of lawsuits." What would be the key to breaking the dam? The lawyer quoted in the article hypothesized that, to get around the fact that many smokers bought cigarettes after warnings were placed on them in the late 1960s, the lawsuits would have to identify some way in which smoking indirectly harmed the plaintiff-such as by enhancing the risk of disease of the children whose parents had smoked or by synergistically increasing the risk of other hazardous substances used by workers who smoked. The lawyer was unsure. But he made this prediction: "The tobacco industry goes the same way of the asbestos industry if it has conspired to hide the facts and sweep them under the carpet."