Texas Product Liability

Houston — An astonishing display of backroom dealing between usually contending parties has surfaced through the ooze of Texas politics in Austin — the state capital. For ten months, the tobacco, liquor and drug lobbies have been secretly negotiating with a small handful of plaintiffs’ trial lawyers over how much to weaken the rights of wrongfully injured children and adults. Under the pressure of their convener, Lt. Governor Bob Bullock, ruler of the state Senate, the secret dealmakers have presented jointly a bill which immunizes tobacco companies, liquor companies and FDA approved childhood vaccine manufacturers from liability. Without considering the involvement of consumer and other citizen groups (Bullock said he didn’t know that consumer groups were interested), the colluders further weakened the common law of hazardous products liability by immunizing wholesalers, distributors and retailers through manufacturers’ reimbursement, except when they tamper with the product.

The legislation also exempts from liability all products that are known to the unsafe by the “ordinary consumer.” It is not clear what products are exempt under this provision — chain saws? drill presses? lawnmowers? — except for a curious list of items. “Sugar, castor oil, alcohol, tobacco and butter” are expressly exempted.

Those are the same words appearing in other state legislative hoppers and they trace the source to the Washington, D.C. law firm of Covington and Burling, whose long time, lucrative client is The Tobacco Institute. Over a dozen lobbyists for Philip Morris Co. were swarming over the lawmakers in Austin whose campaign finance coffers had been previously nourished by tobacco money.

After a perfunctory hearing on the bill, the 31 state Senators marched lemming-like to the floor of the Senate and unanimously voted for this Wrongdoer’s Protection Act.

About the same time, the R.J. Reynolds Tobacco Co. was denying in a Ohio court that smoking caused the lung cancer of a dying man. The jury sided with the company, saying that no one forced the man to smoke.

Is it really that simple? Certainly, no one forced this man to smoke. But when he started to smoke as a youngster, he saw and read the cigarette ads emphasizing glamour, athletes, health and wholesomeness in the models smoking on the billboard, magazine and television ads. These ads carried no warning; they told no one that nicotine is among the most addictive substances in any product. And that once a person believes the tobacco company message about the joys of smoking, he or she is hooked and addicted.

So it seems that both the addictor company and the addicted smokers have responsibilities and the latter’s should not cancel out the former.

Back in the early 19th century, lawyer, Daniel Webster argued that a corporation “has no soul.” While the tobacco industry has spent billions of dollars in the past 25 years denying that cigarette smoking causes cancer or heart disease, its highly paid minions are pushing legislation declaring tobacco to be an inherently unsafe product known to users so as to immunize the nicotine peddlers from liability.

Philip Morris, worried about the decline in Marlboro sales, has just launched the Marlboro Adventure Team that focuses on “the important young adult smoker,” (the company’s words). The Adventure Team will consist of “ten guys” who will participate in a rafting, dirt-biking, horseback riding and 4×4 vehicle expedition across Colorado and Utah next fall. “Guys” can apply for the Adventure Team by writing an essay. The U.S. Surgeon General said that over 400,000 Americans died from smoking last year. Webster was indeed right.

What of the tiny group of deal-making trial lawyers who are supposed to represent vigorously the victims of harmfully designed products? Without letting even their own fellow trial lawyers, they cut the secret deal and then said “It was the best deal we could get,” given the politics in the legislature.

That’s the message from those few lawyers purporting to represent the wealthiest plaintiffs’ bar in the United States. There was no grass roots mobilization, no vigorous campaign to maintain the common law protecting injured people, no coalition with many citizen, elderly and consumer groups.

There was just a surrender in secret to signal their powerlessness for the next round-of corporate assaults on the rights of people who are made sick or injured by products of industry that were unsafely made or released.