Philip Morris (PM) broke from its longstanding policy of never settling a personal injury case recently after it quietly paid $5 million to settle a wrongful death suit brought against its subsidiary, U.S. Smokeless Tobacco (USST), maker of Copenhagen and Skoal brands of spit tobacco. PM's parent company, Altria Group, acquired USST in 2009.
Kelly June Hill sued USST on behalf of her son, Bobby Hill, who died of oral cancer in 2003 at age 42. Bobby got addicted to spit tobacco as a child, long before health warning labels were put on the product in 1987. In the course of the case, USST dumped a half million pages of documents on the plaintiffs lawyers, which, by Hill's attorneys' own account, made searching for helpful material quite interesting.
"We found some stuff that was out of this world," said Antonio Ponvert, an attorney with Koskoff, Koskoff & Bieder, the law firm that won the settlement. The document dump included about 50 letters from children who wrote to USST saying things like, "Please don't raise the price on Skoal, because I only get $5 allowance, and can't afford the seven cans a week that I need," or "I really like the mint flavor, could you make it in a different cut?" In response, UST sent back letters saying, "Thank you for your comments. We'll consider your suggestions, and here are five free cans of Skoal."
Documents Beyond the Pale
As a tobacco document researcher, I've seen a lot of amazing industry documents, but nothing quite compares to the horror of USST documents. I had access to some USST documents back in 2002, after a cache of them were posted for a short time at Tobacco Documents Online (TDO), the first user-friendly tobacco document Web site that came into existence. TDO had gotten them on disk from an anonymous source and published images of them on their site, but after about three months USST's attorneys sent TDO a threatening letter demanding that TDO take their documents off the site, and that the disks they came on -- as well as any scanned text taken from them -- be destroyed. TDO complied, but while they were available, I transcribed some of them, so I can draw on my own small archive to give you an idea of what they were like:
In a stunning 1980 memo, A. H. Cameron, a Regional Sales Manager for USST (then called U.S. Tobacco) wrote to his national sales manager to discuss the virtues of UST's Hawken brand chewing tobacco for "reaching kids four or five years earlier than we have contacted them in the past."
The retailers all agree that the majority of Hawken is being used by young kids and young adults. The age of the kids is from 9 years old and up. I believe this to be true because outlets located close to schools (all grades) are definitely the heavier Hawken outlets we visited. Also, the people who knew about mouth tobaccos felt the sweet taste was a definite factor with the kids ... It definitely is a fact that Hawken has brought a lot of new consumers into the mouth tobacco market. I think this brand has reached kids four or five years earlier than we have contacted them in the past. Indications are that some of these new users are moving up to a stronger brand ... Hawken may prove to be a very good starter product for SKOAL.
The Bates number (the unique identifier that the court issued) for this document is 2038618-2038619, but we no longer have images of the document because UST ordered them destroyed, and it's pretty clear why. I don't know whether this was one of the documents cited in the Hill case. It's just a sample I have in my own archive that I feel demonstrates the zeal with which UST (now USST) pursued children.
Add to this documents that show Philip Morris was fully aware that smokeless tobacco causes cancer before they ever bought USST, and PM clearly had a nightmare on their hands.
A One-Time Deal? Not Really
PM says the Hill case is a one-time settlement and that they agreed to it only because USST offered to settle the case before PM bought the company. Some articles are saying that this is the first settlement of its kind, but this is not the first personal injury case PM has settled.
In 2003, PM quietly settled the case of Shannon Moore, a toddler who was horribly burned in a fire caused after a Marlboro cigarette fell out of the ashtray of the car she was riding in. The little girl was asleep in her car seat when her mother made a short stop at the grandparent's home, leaving a lit cigarette in the car's ash tray, which fell and started a fire that spread quickly. The little girl was severely burned over 77 percent of her small body. She later lost her hearing and had to have some of her fingers amputated. As with all cigarettes, that Marlboro had been treated with chemicals that kept it burning even when left unattended. For six years, PM argued that a faulty cigarette lighter caused the fire and that the child's mother was to blame, and tried to get the case dismissed. They ultimately settled the case, claiming -- just as they have in Bobby Hill's case -- that this was a unique, one-time deal that was isolated and not to be replicated.
So How Does PM Determine What Cases to Settle?
PM has a longstanding policy of never settling personal injury cases and vigorously defending against all such cases, so why did they settle the Hill case? Here are some ideas:
- The case eviscerated the industry's time-worn but effective "personal responsibility" and "common knowledge" defenses. Bobby Hill got addicted to spit tobacco at age 13, as a child and long before health warnings appeared on the product, which destroyed the company's ability to use its usual "personal responsibility" defense. The young age of the plaintiff also blocked PM's use of the "common knowledge" defense -- the argument that "everyone knew" the health hazards of tobacco, so the plaintiff should also have known. After all, society can't expect a 13 year old to be capable of rationally weighing the risks of tobacco use.
- The documents lawyers cited in the case were undoubtedly shocking -- like the ones I've seen -- and posed a PR nightmare for Philip Morris. Settling the case kept them out of the public record. The PR fallout of these documents would have been costly.
- Unlike lung cancer, which is hidden from view, oral cancer is not only visible but gruesome, a combination that can have a powerful effect on a jury. Hill's attorney described the plaintiff's oral cancer as "death by autopsy." An oral cancer patient first loses a tongue, then a jawbone, then half his or her neck, and so on. A trial would have involved showing serial photos of Bobby Hill as his face, head and neck were progressively mangled by cancer and multiple surgeries. In addition to the effect this would have on a jury, it would have posed a PR nightmare for Philip Morris. If such photos made it into the press and media, it could also have had a deterrent effect on the spit tobacco market.
- Settling kept the case from setting a legal precedent that could be used to bolster other personal injury cases.
The case of the burned toddler featured a highly sympathetic plaintiff that posed a strong visual nightmare for the company. It also involved a dangerous cigarette design defect that manufacturers intentionally put in the product -- the treatment of cigarette paper with burn accelerators -- an almost indefensible combination. In addition to its visual impact, a big obstacle in the Hill case was USST's the obvious targeting of children revealed in their documents. The Hill case and the burned toddler were both quite nearly indefensible cases that posed serious PR problems to boot. They would both have posed a real uphill battle, even for PM's high-priced lawyers -- and that makes them exactly the kinds of cases plaintiffs lawyers should seek out and pursue.