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The state tobacco litigation succeeded beyond anyone's expectations. A whistle-blower, former Brown & Williamson chemist Jeffrey Wigand, turned up with damning testimony and internal documents. In the end, Big Tobacco folded, accepting a settlement that included major restrictions on advertising--no billboards, for example--and $246 billion in damages, to be paid to the states over 25 years.
The lawsuits on behalf of individual smokers that have been filed across the country may ultimately prove even more costly. In Florida a jury last year found that tobacco companies had engaged in "extreme and outrageous conduct" by selling a product it knew to be dangerous. The jurors are now considering damages. The tobacco companies are worried that the total bill could be as high as $300 billion. They have said the case could bankrupt them--a result even Scruggs and Moore would hate to see. "An unregulated black market in tobacco," Moore says, "would not be in the public interest."
Guns are already being touted as "the next tobacco." The breakthrough lawsuit came last year, when a jury in Brooklyn, N.Y., held 15 gun manufacturers liable for negligently distributing handguns that were later used in crimes. At least 30 cities and counties have filed lawsuits against gun manufacturers, and the industry is running scared. Smith & Wesson, the oldest and largest handgun manufacturer in the U.S., agreed last month to adopt several kinds of safety measures--among them installing "smart-gun technology" on all its guns within three years in exchange for being dropped from numerous lawsuits. Colt has stopped making most of its guns for sale to individuals, focusing on the police and military markets instead.
And trial lawyers are finding new targets. Angelos, the Baltimore trial lawyer, is going after paint companies. He has filed a lawsuit on behalf of Maryland children whose lead poisoning was caused in part, he says, by lead paint in their homes. The Rhode Island attorney general has filed a similar lawsuit on behalf of victims in that state. As the government's antitrust lawsuit against Microsoft heads into the remedy phase, more than 100 individual lawsuits have already been filed by trial lawyers on behalf of computer and software buyers.
Other lawyers are considering suits against the alcoholic-beverage industry, which they would hold responsible for drunk-driving deaths and other alcohol-related losses, using the same "negligent marketing" allegations that have been lodged against gunmakers. What could be next? Suits against burger chains for selling foods they know are unhealthy? Suits blaming sellers of gore-drenched video games for outbreaks of youth violence? Already, in one of his more expansive moments, Scruggs has mused that Wal-Mart would be a good target because it puts so many mom-and-pop stores out of business.
But is this any way to run a country? Critics of law-by-trial-lawyer say it's an undemocratic way for a nation to decide its approach to controversial issues like handgun and tobacco regulation. The key players--the lawyers and often the judges--are unelected, and most of the critical decisions in litigation are made in secret. "The settlements are hammered out in back rooms," says Olsen. "There are going to be losers who aren't part of the negotiations."