2012] TOBACCO INDUSTRY INFLUENCE 3
In December 1957, Edwin Green, Sr. sued the American Tobacco
Company for injuries he suffered from smoking American’s Lucky Strike
cigarettes.1 Two months later, Green died of lung cancer.2 The case took
over ten years to resolve as it bounced through the court system, consisting
of two trials, three appeals, and one certified question.3 In the end,
American Tobacco avoided culpability in 1969 under a theory of strict
liability for a death the jury decided was caused by smoking, in part because
of Section 402A of the American Law Institute’s (“ALI”) 1965 Restatement
(Second) of Torts,4 a treatise on tort law in the United States, which
declared that although tobacco “may cause cancer,” it is “not unreasonably
dangerous,”5 and therefore not subject to strict liability.6
In part because courts and legislatures have trusted the ALI’s
Restatements to distill and explain the current state of the law,7 and because
the Second Restatement explicitly exempted tobacco from strict liability,
tobacco companies avoided paying damages on a products liability law suit8
until 1997,9 despite the fact that smoking kills an estimated 443,000
Americans every year.10
Thirty years after the Second Restatement, in 1997, the ALI updated
the Second Restatement with the Restatement (Third) of Torts: Product
Liability; the exemption for tobacco was removed, but the Third
Restatement still benefited tobacco companies by creating nearly
insurmountable obstacles for plaintiffs to overcome to prove their case in
tobacco liability cases.11 The beneficial effects of these two Restatements for
1. Green v. Am. Tobacco Co., 391 F.2d 97, 99 (5th Cir. 1968), rev’d per curiam, 409 F.2d
1166 (5th Cir. 1969) (en banc), cert. denied, 397 U.S. 911 (1970).
3. See id. at 99–101.
4. RESTATEMENT (SECOND) OF TORTS § 402A (1965). See generally id. §§ 281–503.
5. Green, 391 F.2d at 110.
6. Green v. Am. Tobacco Co., 409 F.2d 1166 (reversing the earlier Fifth Circuit decision
and adopting the dissent’s approach).
7. See, e.g., Thomas C. Galligan, Jr., A Primer on Cigarette Litigation Under the Restatement
(Third) of Torts: Products Liability, 27 SW. U. L. REV. 487 (1998); Daniel Givelber, Cigarette Law, 73
IND. L.J. 867 (1998).
8. Ingrid L. Dietsch Field, No Ifs, Ands or Butts: Big Tobacco Is Fighting for Its Life Against a
New Breed of Plaintiffs Armed with Mounting Evidence, 27 U. BALT. L. REV. 99, 100–01 (1997).
9. In October 1997, the tobacco industry settled with a class of non-smoking airline
attendants for $300 million, marking the first time any tobacco company paid out on a lawsuit,
either through settlement or court decision. See ALLAN M. BRANDT, THE CIGA RETTE CENTURY
10. Ctrs. for Disease Control & Prevention, Vital Signs: Current Cigarette Smoking Among
Adults Aged > 18 Years—United States, 2009, MORBIDITY & MORTALITY WKLY. REP., Sept. 7, 2010,
at 1, available at ftp://ftp.cdc.gov/pub/publications/mmwr/wk/mm59e0907.pdf.
11. See Galligan, supra note 7, at 498–532.