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Anti-Smoking Law Group Says Tobacco Executives Could Be Prosecuted

January 12, 1987

CHARLOTTE, N.C. (AP) _ A leader of a group that promotes product liability suits against tobacco companies says it won’t give up because of its defeats, but may starting pushing for criminal prosecution for the deaths of smokers.

″An executive of a tobacco company who plans or approves a marketing campaign he knows is going to encourage people to take up smoking, which he knows will result in the death of one of four regular smokers, I think has performed a criminal act,″ Richard Daynard said in a telephone interview from Boston.

But an official of the tobacco industry, which never has lost a lawsuit to people claiming smoking ruined their health, says this latest tactic of the legal fight against cigarettes is ″patently ridiculous.″

″This guy is off the wall,″ said James Fyock, spokesman for the legal department of R.J. Reynolds Tobacco Co. of Winston-Salem.

″I’m sure his intentions are the highest. But some of his public utterances in the past put him in the category of zealotry. He’s a man whose goals ... are dictating what he’s saying, rather than law or reason.″

Daynard, a professor at the Northeastern University School of Law in Boston, in 1984 co-founded the Tobacco Products Liability Project. The group of lawyers and health professionals seeks to promote product liability lawsuits against tobacco companies as a public health strategy. The lawsuits generally claim that cigarette manufacturers promote a product that causes health problems, and seek monetary awards to compensate for deaths or damaged health.

His comments on the new strategy came before the U.S. Supreme Court’s refusal Monday to review an appeals court decision in a New Jersey case. The appeals court said federal law bars claims against cigarette makers for allegedly failing to warn adequately about the dangers of smoking.

Daynard said Monday he was not surprised or disappointed by the decision.

″At this point, while there are three more circuit courts where the issue is pending and haven’t ruled, I think they’re waiting for the other ones, or at least until a conflict arises,″ he said.

Daynard’s organization had filed a brief with the appeals court asking judges to rehear the New Jersey case and had provided information and resources to lawyers for the plaintiffs, he said.

He said his organization was raising the criminal prosecution issue partly as a ″consciousness-raising″ tactic for the public, which provides jurors in the product-liability suits.

He said the idea came from the 1985 murder convictions of three executives of a Chicago film-processing plant in the death of an employee who inhaled cyanide fumes.

″As a general rule ... if you proceed recklessly in a way that endangers people, and people die as a result, you are liable for murder, not manslaughter,″ said Daynard.

He said the same principle could be applied to cigarette manufacturers. But he said it would be necessary to prove that a particular smoker would have quit if the company had given adequate warning that smoking was deadly, and this could be difficult.

It may be easier to convict an executive of reckless conduct endangering lives or causing serious injury.

In those cases, ″you don’t have to prove that a particular individual would not have died if (the executive) had not engaged in that particular activity,″ said Daynard. ″You just have to prove that his activity promoted cigarette sales ... and that this conduct caused a serious risk of serious injury.″

Fyock called the tactic a ″desperation cry″ because not one of more than 600 suits filed against cigarette companies since 1954 has resulted in payments to a plaintiff.

″The reason is that it defies common sense and logic - it defies fairness,″ he said. ″This is what juries have said over and over - should someone who chooses to smoke cigarettes in the face of all the health warnings ... who 30 years later comes down with a disease, should that person go before the bar of justice and say, ’Hey, I made the wrong decision. I want somebody to pay me off.‴