Open pack of cigarettes. Photo: 5 Second Studio/Shutterstock.com

As Connecticut Attorney General William Tong joined a coalition of 25 attorneys general July 17 in filing an amicus brief supporting federal regulations requiring graphic image warning labels on cigarettes packages, legal experts weighed in on how such warnings could affect litigators.

Their consensus: It would be tougher to win litigation against Big Tobacco if these companies provided graphic warnings about the dangers of smoking.

But it still wouldn't be simple: Experts say jurors are often unpredictable, and could unleash surprise verdicts. Plus, geography would be a factor. For instance, jurors might view lawyers and smokers differently in various part of the country, including places like North Carolina, a big tobacco state.

"It would change the nature of the lawsuit to a certain extent," said Quinnipiac University School of Law professor Bill Dunlap. "For attorneys representing smokers, I'd say it would be harder for a plaintiff lawyer to show that the tobacco companies had not provided sufficient warning. It will just make their case that much harder."

Another factor: Dunlap said that if the U.S. Congress is correct, and the graphic images do reduce smoking, "then there will be fewer cases of cancer and less people will be smoking, thus fewer lawsuits."

Big Tobacco pushes back

R.J. Reynolds Tobacco Co. sued the Food and Drug Administration in the U.S. District Court for the Eastern District of Texas, arguing the U.S. Congress doesn't have the authority to decide what graphics should be on cigarette packages.

The FDA and the Department of Health and Human Services had given the U.S. Congress authority to come up with the warning labels, but R. J. Reynolds argued the move was unfair and inappropriate.

Natasha Webster, Reynolds spokesperson, didn't respond to a request for comment Tuesday.

But observers suggest that while the measure might hurt cigarette marketing, it could benefit tobacco companies in the courtroom—but only up to a point.

Leslie Levin, a professor of law at the University of Connecticut School of Law, said, "It could be harder to sue, depending on who the plaintiff is. Sometimes, people are alleging second-hand smoke, in which case I'm not sure warnings will make a lot of difference."

While the feeling among experts is that plaintiff attorneys might need a new strategy if they represent someone who sues after using a tobacco product with a graphic warning label, both Dunlap and Levin said it could also come down to juror attitudes.

"Sometimes, jurors do things not supported by the evidence," Levin said. "But attitudes toward plaintiffs and lawyers really vary in different parts of the country. Certain parts of the country where tobacco is grown might be more sympathetic to the defendant. It does depend on where the claim is brought."

Dunlap noted though that people today are more aware of the dangers of smoking than they were decades earlier. That could also benefit the plaintiffs' side, he said.

"Forty years ago it was very difficult to persuade a jury that smoking had caused cancer and that the smoker was not at fault," Dunlap said. "Times have changed. You are also dealing with a new, younger generation of potential jurors to whom smoking is not as pervasive as it was decades ago."

Jamie Sullivan, an attorney with Howard, Kohn, Sprague & FitzGerald in Hartford, said, "In products liability cases, the defendant will certainly claim the plaintiff was comparatively at fault for not heeding the warnings, especially if the warning is of graphic images. But it all depends on the jury."

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