We need punitive damage awards to protect public health

Too many U.S. firms make merchandise that hurt public well being: oil producers, opioid makers, vape outfits and tobacco giants to call a number of. For too lengthy, we as a society have considered the sale of those merchandise as routine. We have now accepted that firms aggressively market a lethal product as a result of that’s what profitable companies do.

And too usually, these giant firms go about their nefarious enterprise with close to impunity. Laws and regulation are tamed by lobbying and regulatory seize. For instance, the Food and Drug Administration (FDA) has proposed to pressure tobacco firms to decrease the quantity of nicotine of their cigarettes to make them non-addictive. The trade is resisting, making ready to litigate and will achieve blocking the measure — if not in court docket, then via deft political maneuvers.

So, how will we cease this relentless pursuit of earnings with out regard to public well being? Whereas firms usually view lawsuits as the price of doing enterprise, large public-health litigation with actual enamel — which means giant punitive-damage awards from juries — is the one factor that will get their consideration. Verdicts awarding giant sums in damages ship a message to shareholders and the general public that the merchandise these firms produce and their detrimental influence usually are not socially acceptable. And since the timing and quantity of punitive awards are unpredictable, firms can’t simply price range for them as a price of doing enterprise.

Take into account the litigation against Johnson & Johnson (J&J) over the talc in its child powder, which was sometimes contaminated with asbestos. For years, J&J appeared to comply with the tobacco playbook, downplaying the public-health consequences of its product. But, earlier this 12 months, after a multibillion greenback punitive-damages award, the company announced that it could change from talc-based to corn-starch-based child powder worldwide. The litigation stopped the misbehavior.

And think about one other instance. Not too long ago, legal professionals from the Public Well being Advocacy Institute at Northeastern College in Boston, the place I work, joined with two non-public regulation corporations to symbolize the household of Barbara Ellen Fontaine, who died of most cancers at age 60 after smoking for greater than 4 many years. In September, a Massachusetts jury ordered Philip Morris USA to pay more than $8 million in compensatory damages and $1 billion in punitive damages for inflicting Fontaine’s lung most cancers and loss of life. It was the primary billion-dollar punitive-damage verdict within the state’s historical past. This verdict, which Philip Morris called “clearly excessive” and vowed to struggle, has clearly gotten the corporate’s consideration.

Fontaine grew to become hooked when she was simply 15. The corporate might have lowered nicotine ranges to make its merchandise non-addictive many years in the past. As a substitute, it went on making deadly cigarettes — regardless of figuring out cigarettes kill about half a million Americans every year. As argued in Fontaine’s case, she smoked Marlboro and Parliament cigarettes, which Philip Morris nonetheless sells with principally the identical formulations it used when she smoked them — the corporate has not made them safer.

But when punitive-damage awards are to have the specified influence on company misconduct, they have to be supported by the general public towards their inevitable company critics. Companies argue that naive jurors are being manipulated and duped. But, the jury within the Fontaine case was extremely educated and included, amongst others, a Ph.D., a Ph.D. candidate, a microbiologist and a banker. They heard how deeply addictive nicotine is, that Philip Morris made its merchandise to feed habit and that it’s nonetheless doing so at present.

One other criticism is that punitive-damage awards are merely a windfall for suing events. Or, because the U.S. Chamber of Commerce argued recently, that such awards harm the companies — and by extension our economic system and society. True, punitive awards do hurt some firms — people who proceed to misbehave. However they assist our economic system, by decreasing preventable medical prices and misplaced productiveness, whereas making our society more healthy.

If we’re going to alter company actions that harm public well being, we’d like punitive awards that trigger company miscreants to sit down up and take discover. Multibillion-dollar firms can merely shrug off six- or seven-figure verdicts — however not so a ten-figure verdict.

In these instances, juries are allowed to — and, for my part, should — think about an organization’s wealth when imposing punitive awards. Within the Fontaine case, the jurors took a wholly rational method to discovering an quantity that may each “punish and deter” Philip Morris. Certainly, punitive-damage awards in public-health instances are a method to change unhealthy company conduct. They don’t tear down our society, they make it higher.

Richard A. Daynard is president of the Public Well being Advocacy Institute at Northeastern College in Boston. He’s additionally the college distinguished professor of regulation at Northeastern College.