Is there a middle approach in civil liability cases for damages to the health of the smoker?

Abstract

The article discusses the civil liability of the cigarette industry for the damages caused to the health of smokers, proposing an intermediate approach that takes into account the fair pretension of the victims and the proportion of reason that also assists the said industry in certain aspects. After analyzing the chronology of socalled "waves" of lawsuits involving the civil liability of cigarette manufacturers in the  United States, from its origin to the present day, the article looks at one of the defense's recurring arguments, namely the causation. As the cigarette industry claims that the diseases that are common to smokers are multifactorial, there would be no clear evidence that the disease of a particular smoker would have originated from smoking, excluding any other etiology. The article shows, however, how contemporary jurisprudential doctrines and practices tend to coexist perfectly with the logic of probability, no longer requiring absolute certainties to accept claims. The argument of the free will of the smoker is also rejected, recalling the advertising tactics that have always been used by the cigarette industry, especially aimed at young people, besides the addictive power of nicotine, which eliminates much of the freedom of the adult smoker to stop smoking. However, considering that a portion of free will remains in the decision to start smoking and not to stop smoking, it is reasonable to reduce the value of the indemnity, in case of reception of the claim. Moreover, considering that there is also a true part in invoking the multifactorial nature of most diseases, it is reasonable to apply a further reduction in the value of the compensation, insofar as it is likely that a disease actually results from smoking and not from other reasons. Finally, if there are doubts about the cigarette brand that the smoker smoked during his life, it is proposed to apply the logic that governed the American judgment of Sindell v. Abbott Laboratories case, that is, market share liability. This would be a possible third reduction of the indemnification amounts. The proposal thus reconciles the arguments in favor of both sides. The dialectical method is used, using a basic bibliographical research, aimed at its application, with a qualitative approach.