[Viewpoint] Legal clarity lost in the smoke

Recently, a jury in the United States ruled against a cigarette maker, demanding it pay damages of $13.8 million to the daughter of a smoker who died, on top of an earlier $79.5 million for other relatives of family members killed by smoking. Since these large awards were reported in the media, successes by plaintiffs in smoking-related suits have become an accepted fact.

But since the first lawsuit against the tobacco industry was filed in St. Louis in 1954, over 4,000 cases have followed. And only seven led to monetary compensation. Even now, in the United States, victories by plaintiffs in similar cases are very rare.

In Korea, the court ruled in 2007 that cigarettes were faulty products, and that even if cigarettes contain nicotine, which might be addictive, the addictiveness is not so great that it makes quitting with one’s free will impossible. The court decided that the correlation between smoking and lung cancer was not enough to confirm an independent causal relationship between the two.

The astronomical compensation in the U.S. case can largely be credited to the unique judicial system and culture of the United States.

Unlike Korea, courts in the United States award punitive damages, which punish the wrongdoers by ordering them to provide compensation in excess of the actual damage.

In calculating punitive damages in these cases, the court takes into account not only the damage caused to the plaintiff but also the potential risk that all smokers may develop cancer and the health hazards to non-smokers.

Therefore, it is possible that this method of calculation goes against the principle of fair compensation for damages and the constitutionally defined ban on excessive punishment.

However, we should not overlook the fact that there had been considerable friction between regional courts and the Supreme Court of the United States until the Oregon State Supreme Court decided to award compensation for punitive damages.

The Supreme Court rejected the rulings of the Oregon State Court of Appeals and the state’s Supreme Court twice, emphasizing that a ruling that took into account the damage caused to the other victims who did not sue the cigarette maker when determining the size of the punitive damages could lead to constitutional problems.

Since the initially proposed punitive damages were 100 times greater than the damages claimed by the plaintiff, that excessive decision could be seen as unconstitutional.

Moreover, the Supreme Court pointed out that punitive damages could be against the definition of fair due process contained in the fifth and 14th amendments to the U.S. Constitution.

In other words, holding the defendant accountable for punitive damages to third-party victims other than the plaintiff may deprive the defendant of the opportunity to defend itself through due process, and therefore could be seen as violating the right to property.

Ruling on punitive damages flies in the face of a key element of due process, which mandates that the defendant is entitled to adequate notice of accusations against him or her and prohibits arbitrary or unclear punishments.

Furthermore, as shown in the opposing jury verdicts in the civil and criminal cases in the much-talked-about O.J. Simpson case, jurors can be affected by emotion and prejudice, which prevents them from basing their decisions completely on the evidence or the law.

In the United States, damages from smoking are culturally considered a social responsibility rather than a personal one, and such perception seems to have considerably influenced the outcome for the plaintiff in recent smoking-related lawsuits.

In contrast, in Korea, Germany, France and Japan trials are decided by professional judges, and an evidence-based approach is valued above all.

It would be difficult for countries with this kind of “continental” legal system to embrace punitive damages, born in the unique social and cultural climate of the United States.

More fundamentally, we do not have a national consensus to introduce the concept of punitive damages.

*The writer is a professor of law at Yonsei Law School.

by Kim Sung-soo