EXPERT PANEL DROPS IMMUNITY [05/30]

An impartial panel of experts has adopted a new Restatement of Torts saying that manufacturers of tobacco products should be held liable for deaths and injuries caused by their products, even if specific acts of manufacturer negligence cannot be established.

This decision distinguished cigarettes from unavoidably dangerous products like alcoholic beverages, firearms, and above-ground swimming pools for which manufacturers ordinarily cannot be held liable unless plaintiffs can show that there is a feasible alternative design which would have prevented the harm.

This decision by an impartial and expert panel of law professors, judges, and lawyers with expertize in civil torts litigation could have a profound impact on cigarette trials, says law professor John Banzhaf, because judges in all states look to the Restatement to set forth established legal principles, and are very likely to follow its lead in making tough decisions.

"More than 3600 decisions have cited the Restatement of Torts to impose so-called 'strict liability' -- liability even in the absence of any proof of negligence -- and it is quite likely that courts in the future will continue to follow the lead established by this new document," said Banzhaf.

"It is especiallly significant that the panel chose to distinguish tobaccco products from alcoholic beverages, firearms, and shallow above-ground swimming pools well known for their dangers to divers -- all of which cannot be the basis for liability unless the plaintiff can show that the company acted in a careless manner in making the product."

Cigarettes, where the amount of nicotine can be carefully manipulated, are fundamentally different from guns, where the danger from being hit by a bullet cannot be reduced during the manufacturing process, argues Banzhaf.

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