This Article speculates that some courts may have used the preemption doctrine to mask their misgivings about the ability of tort litigation to provide fair compensation to injured consumers without bankrupting the tobacco industry. Consequently, the author suggests that it may be necessary to streamline the litigation process for mass torts or perhaps even to replace it with an alternative compensation system for the purpose of adjudicating smoking-related claims.
With this in mind, Part I briefly examines the health risks of smoking and the nature of the common law duty to warn. It also reviews a number of recent cigarette preemption cases. Part II takes a closer look at the preemption doctrine itself. The analysis focuses on the traditional preemption categories: express preemption, occupation of the field, and actual conflict between state and federal law.
Part III applies these concepts to the cigarette warning controversy. It concludes that cigarette warnings do not fall within any of the traditional preemption categories. Part IV considers the cigarette warning controversy from a policy perspective and concludes that cigarette companies should not be immunized by the preemption doctrine from their duty to compensate injured consumers.
Part V concludes that cigarette warning claims, if allowed, would place a significant burden on both plaintiffs and defendants. Therefore, it considers how the present litigation process can be streamlined to handle mass tort claims. In addition, Part V briefly reviews an alternate compensation plan for smoking-related injuries.
Richard C. Ausness, Cigarette Company Liability: Preemption, Public Policy and Alternative Compensation Systems, 39 Syracuse L. Rev. 897 (1988).