OR Supreme Court - Defending democracy at home

T.A. Barnhart

The Oregon Supreme Court has re-affirmed its 1999 decision to confirm an award of $79.5 million in punitive damages against Phillip Morris in the cancer death of a lifelong smoker.  The original award was vacated by the U.S. Supreme Court in 2003, and the Oregon court was ordered, according to The Oregonian, to "reconsider the verdict in what some interpreted as a strong suggestion to reduce it significantly". 

This is exactly what they did not do.

The deceased smoker had not only tried, unsuccessfully, to quit smoking a number of times; he had read and believed reports that indicated smoking was not as bad as anti-smoking advocates were saying.  He turned to the propaganda generated for decades by Phillip Morris and other tobacco companies for intellectual support to his terrible physical addiction.  The S.C. of Oregon agreed with the jury that Phillip Morris' lies deserved a harsh penalty -- and today they decided they had been right the first time.

(A personal note.  These bastards managed to kill my mom last year, 55 years of cigarettes doing in her heart at the age of 72.  She began smoking in high school, back at a time when it was cool and glamorous.  She, too, tried to quit, and finally did -- when the emphysema and tumors put her on oxygen.  But it was too late.  Enjoy your profits, Phillip Morris.)

First of all, YAY for the Supreme Court of Oregon.  How easy would it have been to simply take the big hint from SCOTUS and reduce the punitive damages?  They had every excuse, and a whole bunch of precendent.  Telling the Supreme Court of the United States to stick it in their ear is not an easy thing to do.  But our court did it.  The pressure to change their minds must have been immense, and this decision is testimony to the power of the truth to give strength in times of need. 

Second, this is twice in a month that Oregon has been found to be a place where states rights are alive and well.  SCOTUS' inability to set aside the Death with Dignity Act was a blow against the unconstitutional use of power by the administration and Justice Dept.  This decision was an acknowledgement, albeit reluctant, that national power cannot trump states rights when the facts determine that the state, and not the federal government, is in the right.  At a time when the Bush Administration is trying to absorb all powers to itself, and when the Congress' wingnut Republican majorities seem content to allow this, here in Oregon we are making a stand.  Granted, this stand has its limits, and Congress could easily wipe out ODWDA (although we have Wyden's promise to block that, his personal commitment to democracy in Oregon).  Granted, there are so many other areas of policy harmful to our state that we can do little about, but damn!  In a time when we seem to be sliding into an abyss of tyranny centered in the Oval Office, it's heartening to have glimpses of hope.

I hope word spreads that Oregon is working hardto take care of itself, or at least putting up a damn good fight.  99% of the ballot measures brought before voters are crap, but we have the opportunity to have a say.  Our Legislature is amateurish at times, but we have tremendous access to our legislators.  Partisanship is a problem in Oregon, of course, but not nearly to the point as in states like Texas.  We have strong and extensive grassroots organizations all across the spectrum.  The party leaderships do not make all the big decisions -- and when they try, it's not that hard for the base to assert themselves.  And on top of all that, whatever people in Oregon may think of our level of public political discourse, we are one of the most civil states in the nation.  Most of us respect each other.  We talk reasonably to one another most of the time.  We refrain from the kind of virulent personal attacks that cripple many states.  The brief power surge of the religious right in the 90s set things back a great deal, and the antics of Minnis and Scott are disheartening, but these are aberations.  Oregon is a state where laissez faire is strong, and where neighbors tend to let neighbors be. 

In short, Oregon is a state where liberal ideals dominate.  We like to be left alone, but we're glad to help when it's needed.  We have our own morals, but we try not to ram them down other people's throats.  We try to do what's right without insisting everyone follow our personal lead.  We have strong ethics, but don't like to see them turned into laws.  We use our laws to preseve some basic ideals, but not to promote minority prejudices (hence the defeat of measures 9 & 13 and the defeat of most anti-choice measures).  And when the Congress or Supreme Court tries to take away our rights and powers -- tries to make us act against our own political rights and beliefs -- we tell them to get stuffed.

But we do it in a civil way.  We do it within the context of our laws.  This makes us good citizens, in a good state, and it's great to know our high court has our back.

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    a footnote: under state law, the state's crime victim compensation fund gets 60% of punitive damages, nearly $50 million. a good decision gets even better.

  • Jonathan (unverified)

    While the opinion may be kind of convoluted for non-lawyers (lots of tests, guideposts, etc.), it includes some pretty remarkable statements about big tobacco (equating the conduct with manslaughter). http://www.publications.ojd.state.or.us/S51085.htm

  • Brian Simmons (unverified)

    Let me ask you this then, should the Supreme Court award every family of a deceased smoker $80 million? My grandmother died because she smoked, but I don't blame the tobacco comapanies. She knew it was bad (just like everyone else knows), but didn't quit. I'm not sure I buy the claim that someone "can't" quit smoking. I know it can be more difficult for some people, but can't? To turn smokers into victims denies that they have any will power to shape their own lives. What about alcoholics? Should we fine the alcohol producers every time someone dies from liver failiure or in a drunk driving accident? What about McDonald's for obesity and heart failiure? The answer is no. Everyone knows smoking is bad, and have forever. I think the fact that he tried to quit several times should negate the case, since he obviously knew it was harmful. Did the man ever go see a doctor?
    And where did they draw the $80 million figure from? In a legal setting, I think it would be difficult to justify a settlement so high, since the man was in his mid-late 60's when he died. Finally, many studies now suggest that people overestimate the dangers of smoking. Does this mean that the people responsible for those awful TRUTH advertisements should pay tobacco companies money for discouraging smoking?

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    let's welcome Brian, our local tobacco industry flak. that is your job, right? you sound like one. i so want to tell you how wrong you are, but i refuse to be a hypocrite. your opinion that "Everyone knows smoking is bad and have forever" is yours to hold. it's ignorant of fact, ignorant of law, and just plain cruel. but it's not wrong; it's just yours.

    i hope we get off this tangent right away. the point is not the tobacco industry (which should be obliterated from the face of the earth. what purpose does it serve? tobacco farmers can't grow food? useful crops?) the point is democracy in Oregon and the rule of law. i don't want to talk about tobacco or court cases. i want to talk about democracy and how we protect it.

  • Don Smith (unverified)


    True, true. Kudos to SCoOR for sticking it to the man. Er, men and woman. Oregon is becoming quite the teenager in the Federal family and I, for one, love it. Death with Dignity, Medical Marijuana, and now "Our rulings carry the force of law, too."

    Brian, our flak (to hear it told) brings up two good points and he's not being cruel. First, should we award every family $80MM? The answer is no, because the punitive portion of the award is not an award to the families per se, but against the defendant. And Oregon, as noted, get's the lion's share of that award (a great idea, btw). The next case should NOT have a punitive award, unless different behaviors are being punished.

    Secondly, people know it's bad and can quit. This is true. If you simply don't buy cigarettes, you can quit. Just like if you don't stock your fridge with beer and avoid bars and cocktail parties, even those with less-than-iron wills can quit smoking or drinking. However, in the case of my grandmother, who also died of lung cancer, she was told it was safe and even envigorating and healthy for years. Once you smoke for 20 years, the cancer's probably gonna get you anyway eventually. And a 20-year-old habit is hard to break.

    So, Brian doesn't deserve a flogging. He's right in a sense. Not cruel.

    As for our democracy? Just keep blogging...

  • Labor D (unverified)

    Oh the irony. Who are the three SCOTUS justices who believe that the due process clause does not limit punitive damage awards?

    Clarence Thomas, Antonin Scalia, and Ruth B. Ginsburg.

    OMG, does someone on this site agree with Clarence and Tony?

  • Jon Dough (unverified)

    "In short, Oregon is a state where liberal ideals dominate. We like to be left alone, but we're glad to help when it's needed. We have our own morals, but we try not to ram them down other people's throats. We try to do what's right without insisting everyone follow our personal lead. We have strong ethics, but don't like to see them turned into laws. We use our laws to preseve some basic ideals, but not to promote minority prejudices (hence the defeat of measures 9 & 13 and the defeat of most anti-choice measures). And when the Congress or Supreme Court tries to take away our rights and powers -- tries to make us act against our own political rights and beliefs -- we tell them to get stuffed.

    I haven't seen so much self-gratifying blather since the floor of the men's room was cleaned at the local adult video store. If you are such a fan of state's rights, how 'bout letting go of Roe? Let it become a state's right issue. Or is it only those issues you personally support? Go ahead...let's see how much of a hipocrite you aren't.

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    nice rebuttal, Jon. i especially enjoy the powerful use of examples. you piercing arguments just render me speechless. whoops, no, here i am yakking away. step by step, you stripped away my every point. wow. i'm in awe.

  • Jon (unverified)

    So much awe, apparently, that you don't have much argument left to explain why assisted suicide and medical marijuana are most definitely states rights issues, but Roe v. Wade should not be.

    Too bad you blew your load with all that magnanimous hooey about not wanting to ram ideas down anyone's throat and all that other stuff about how great you all are.

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    well, Jon, even though the real argument you seem to be working against is the one i made about civility, you did give a few examples. i will pretend that your last comment was actually worthy of response.

    states rights are a tricky critter. in Mississippi, in the 40s, they meant the right to keep blacks oppressed. in Oregon, in 2006, it means we get to decide on how and when we'll end our lives. soon, all over the country it will mean how do we deal with the reality of abortion in a post-Roe world. states rights, like ethics, are not a pure thing existing in a Platonic bubble; they are what we make of them.

    i have great belief in Oregon and Oregonians. i love living here. i love that i'm an Oregonian, born in Springfield and having been able to live in Eugene, Corvallis, Portland, Bend and Riddle. "where are you from?" people will ask, and i will, with great pride unearned but gratefully accepted, answer "Oregon" and they lower their eyes in disappointment that they were born in lesser lands. my older son, poor lad: born in CA. his brother, in Oregon. guess which i love the more?

    this is a great state with great people. hell, our worst people -- like McIntyre and Sizemore and Minnis -- are even better than the worst people in most other states. that's how good we are. so when i speak of states rights in the context of Oregon, i do so with the fervent belief that we'll get it right. i have reason for the belief, as stated in the main post. i'm sure Texas will get most of these things wrong; perhaps they'll make unwedded pregnancy punishable with summary execution. this would be "bad" states rights, and a real conundrum for those of us what believe in democracy.

    it's the dilemma that has torn at liberalism for decades now, one we have not resolved. the conservatives have a working solution of course: lip service to states rights and move all power to the national government (reagan & dubya's greatest legacies). and since most people in the world, including in the usa, prefer easy things that sound good to hard things that sound tough, the fake states rights suits them just fine.

    because the way you get "good" states rights (ie, the stuff Jefferson had in mind) is through participatory democracy. Mississippi in the 40s was not a participatory democracy. the majority may have agreed with the way things were done, but we all know the definition of democracy is not "majority rules". here in Oregon, we have public discussions on important matters. we have long long public discussions, and we have the initiative process, and we have a non-professional legislature, and when we finally make up our damn minds on something (as long as the ballot measure was actually written correctly), we can pretty well be sure the final result, love it or not, was arrived at democratically. i think M36 was awful, but i have no doubt that it was the result of the democratic process (and now we move to the next step of that process, a process what never does end).

    so Jon, call me names and make people think you moved here from some dark foreign land were people spit on politeness and treat strangers with contempt (like new jersey)(just kidding, i have friends from new jersey)(not that they would argue with my comment); i do feel great. i'm a frikkin' Oregonian. how good is that? if i thought this state sucked, i'd just work til my kid was out of school and move to that beach at the end of Shawshank Redemption and screw you. but i believe in this place (have i mentioned that i believe in Oregon?) and i think it's worth the effort that democracy requires. my fellow citizens here in Oregon give me plenty of reason to believe as i do.

    you, Jon, just have a potty mouth.

  • Jon (unverified)

    My mistake. You are wonderful. Whatever was I thinking.

  • Jonathan (unverified)

    Brian (et al) --

    For a better understanding of how/why this high an award (exceeding the USSC recommended "single digit" multiplier of compensatory to punitive damages), read the opinion. The deceased tried to quit, but also believed the decades-long industry line of "it's not really that bad, the studies of cancer are wrong, overblown, etc." We all KNOW that's wrong now, but the industry was pretty aggressive back in the day, and now it's coming full circle. Put another way, the court found a basis for concluding that in awarding punitive damages (intended to punish), the jury could have properly equated Philip Morris's conduct with manslaughter. From a civil liability standpoint, you can't get much worse, so it makes sense to give a high award.

    As for state's rights, while I'm not at that enamored of Scalia and Thomas, NO judge simply looks at a case as being up or down on states rights. While unconstitutional excessiveness of punitive damages awards is relatively new, and therefore not entirely refined, it's a pretty established rule now, and with any constitutional interpretation question, it is subject to debate. But the debate as it presently stands has very little to do with states rights.

  • Karl (unverified)

    I agree with most of your post T.A., but I'm a little bugged by the blather too. I fear that most of those good things you say about us Oregonians are true only because there arn't so many of us yet. That is changing fast.

  • john (unverified)


    I am not sure why this has anything to do with 'democracy.'

    States rights used to be the banner hoisted by segregationists in opposition to an "anti democratic" Supreme Court. Now you are doing precisely the same thing.

    I should also note that not everyone who believes that this award was excessive is a tobacco company shill. If you want to tax tobacco companies out of existence, I'll be right there with you. If you want to ban tobacco, I'll sign the initiative.

    But I worry when we use the courts and personal injury awards to attack an industry that we ought to be attacking via regulations and legislation.

    Finally, there is widespread disagreement on how much the public knew about the dangers of tobacco. While the companies were discounting medical evidence, the government of the United States (the Surgeon General's report), the AMA, the American Cancer Society, and major media outlets (Readers Digest, Consumer Reports, Life magazine) were publicizing the risks of cigarettes as far back as 1956.

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    Actually, the question Jon Dough poses isn't particularly conservative--it's one many liberals have also asked. Do you have the right to smoke a bowl to reduce nausea? Do you have the right to take your life when consumed by cancer? Do you have the right to abort a fetus? Do you have the right to enslave others? These represent a continuum of rights the states and feds have been arguing about for decades, and while some are clear-cut according to the constitution (slavery), others are not.

    Finding that the right to abortion was constitutionally protected was one of the more radical moments in American jurisprudence. Whether you agree with the decision or not, from the viewpoint of liberal society, having it handed down by the Supreme Court meant it ran ahead of general acceptance across the country. Had we continued with legal abortion at the state level (five already had it), it's likely most of the states would now allow it and the issue would be no more controversial than segregation is today. More significantly, the ruling precipitated a rather remarkable period of ultra-conservative domination at all levels of government.

    <h2>And it's going to get worse. Ironically, Roe's legacy are Justices Scalia, Thomas, and Alito, who are likely--again ironically--to enforce the same kind of federal tyranny over the states that those who were opposed to the Roe ruling have decried for 31 years.</h2>

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