The Rule of Law in the Wake of Clinton by unknow

Author:unknow
Language: eng
Format: epub
Tags: History, United States, General, Law, Legal History
ISBN: 9781930865037
Google: Ga7jCxf1fZAC
Goodreads: 1030451
Publisher: Cato Institute
Published: 2000-01-15T13:36:01+00:00

The "New" Tort Law: On Assumption of Risk and Causation

In its latest litigation against the tobacco industry, the federal government seeks to recover billions of dollars annually in federal health care expenditures-mostly Medicare outlays-related to smoking. DOl's legal theory is modeled after the states' lawsuits, which were designed to replenish depleted Medicaid coffers. Like the states, the federal government argues that it can sue tobacco companies without stepping into the shoes of each smoker. To better understand that theory, and how it affects the DOJ claims, here is a quick backgrounder on the "new" tort law that animates government-sponsored litigation against cigarette makers.

For 40 years, there had been no final judgment against tobacco companies for smoking-related illnesses. That is because juries understood that we are each at liberty to consume the products we wish; but if we do so, and we are aware of the attendant risks, we assume those risks and are responsible for the consequences of our acts. At the same time that juries were laying down that basic legal principle, called assumption of risk, state Medicaid programs were coming under intense financial pressure. Under the Medicaid Act,1 states are entitled to recover their expenditures for smoking-related illnesses, but they must follow a process known as subrogation. An insurer, like the Medicaid program, substitutes itself for the injured party and sues on his behalf. Thus the Medicaid system, as plaintiff, . would have the same burden of proof that a smoker would have if he had sued directly. And, of course, the state would be subject to the same defenses that the tobacco companies could have asserted against the smoker-including the assumption-of-risk defense, which had been a consistent winner for the industry for four decades.

How then to get around assumption of risk? The states came up with a creative solution: They simply eliminated that provision of the law-and applied the new rule retroactively, as if it had been in effect decades ago when the harmful cigarettes were originally sold. Florida, Maryland, and Vermont accomplished that legerde-main by statute;2 the other states did it by seeking equitable relief in court-that is, by asking judges to ignore conventional precepts of tort law.3

Bill Clinton understands the assumption-of-risk principle perfectly well. Indeed, his former Veterans Affairs secretary, Jesse Brown, invoked it when the government itself was threatened with liability for having provided millions of soldiers with cigarettes over the years. It would be "borderline absurdity" to pay for "veterans' personal choice to engage in conduct damaging to their health," he said. "If you choose to smoke, you are responsible for the consequences of your act."4

Evidently that principle applies only if the accused is a government agency, not a private company. Accordingly, DOJ asserts that it can recover from the tobacco industry merely because smoking injured someone protected by Medicare-even if that person, having voluntarily assumed the risk of smoking, could not recover on his own. The same tobacco company selling the same cigarettes to the same smoker, resulting in the same injury, would be liable only if the smoker is a Medicare recipient and the government is the plaintiff.

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