Tobacco Industry Influence on the American Law Institute’s Restatements of Torts and Implications for Its Conflict of Interest Policies

Abstract

The American Law Institute (“ALI”) is a prestigious and influential organization that creates treatises on the current state of the law, including “Restatements” of case law that guide judicial decisions and legislation. This paper uses previously secret tobacco industry documents made available as the result of state and federal litigation against the industry to describe how the tobacco companies, acting both indirectly through their trade organization, the Tobacco Institute, and directly, using influential lawyers, quietly influenced the ALI’s writing of the Restatements. The tobacco industry’s ease of access to the ALI calls into question the Institute’s independence, the preparation of major policy documents such as the Restatements, as well as the Institute’s ability to monitor and control conflicts of interest. The ALI’s conflict of interest policies lag behind comparable organizations such as the National Academy of Sciences and the Institute of Medicine, and are insufficient to protect Institute projects from significant outside influence. Because of the undisclosed influence of the tobacco industry over the ALI, courts and legislatures should not apply the principles embodied in the Restatements in tort cases against the tobacco companies for injuries suffered from tobacco use. Until the ALI implements strong conflict of interest policies to ensure independence from private-interest manipulation, courts and legislatures should not rely on Institute reports and recommendations as neutral scholarly summaries of the law that should guide judicial and legislative decision-making.

INTRODUCTION

In December 1957, Edwin Green, Sr. sued the American Tobacco Company for injuries he suffered from smoking American’s Lucky Strike cigarettes.¹ Two months later, Green died of lung cancer.² The case took over ten years to resolve as it bounced through the court system, consisting of two trials, three appeals, and one certified question.³ In the end, American Tobacco avoided culpability in 1969 under a theory of strict liability for a death the jury decided was caused by smoking, in part because of Section 402A of the American Law Institute’s (“ALI”) 1965 Restatement (Second) of Torts,⁴ a treatise on tort law in the United States, which declared that although tobacco “may cause cancer,” it is “not unreasonably dangerous,”⁵ and therefore not subject to strict liability.⁶

In part because courts and legislatures have trusted the ALI’s Restatements to distill and explain the current state of the law,⁷ and because the Second Restatement explicitly exempted tobacco from strict liability, tobacco companies avoided paying damages on a products liability law suit⁸ until 1997,⁹ despite the fact that smoking kills an estimated 443,000 Americans every year.¹⁰

Thirty years after the Second Restatement, in 1997, the ALI updated the Second Restatement with the Restatement (Third) of Torts: Product Liability; the exemption for tobacco was removed, but the Third Restatement still benefited tobacco companies by creating nearly insurmountable obstacles for plaintiffs to overcome to prove their case in tobacco liability cases.¹¹ The beneficial effects of these two Restatements for the tobacco industry’s legal security has been widely appreciated,¹² as noted in 1975 by the fact that a law firm representing the cigarette companies was “trying to change language in the [Third] Restatement of Torts which was considered damaging to the liability of cigarette manufacturers.”¹³ However, the full nature and involvement of the tobacco industry in creating the Restatements has not been so widely recognized. New understanding of the industry’s role, based on previously secret industry documents now available at the University of California San Francisco Legacy Tobacco Documents Library¹⁴ (“Legacy Library”), raises serious questions about conflicts of interest at the ALI and the reliability of its Restatements.

The documents in the Legacy Library are a unique resource revealing the tactics of one specific industry. Through a series of lawsuits, tobacco companies have been forced to release internal documents to the public, providing decades of insider information on the full range of previously undisclosed industry activities, including efforts to influence the development of law and science. These documents allow for the examination of the industry’s behind-the-scenes role in crafting the Restatements. Since there is not a comparable collection for other major industries, one cannot know with certainty whether the tobacco industry’s manipulation of the ALI is unique or typical of broader corporate influence over the ALI’s Restatements. However, the fact that the ALI’s lack of meaningful conflict of interest policies allowed the tobacco industry to influence the writing of two Restatements of Torts illustrates that the ALI is not an objective institution solely examining the status of the law, but instead is a malleable group open to influence by well-resourced outside interests. Until the ALI implements strong conflict of interest policies to ensure that it becomes independent of private-interest manipulation, courts and legislatures should not rely on ALI reports and recommendations as neutral scholarly summaries of the law that should guide judicial and legislative decision-making.

This Article provides a background on the ALI in Part I. Part II then describes how Restatements are created and the mounting evidence of, and the industry’s attempt to cover up, the dangers of smoking in the time leading up to the Second Restatement. Part III details and explains the tobacco industry’s successful efforts to influence the writing of the Second Restatement to obtain an exemption from strict liability. Part IV describes continuing tobacco industry ties with the ALI during the writing of the Third Restatement. While the Third Restatement no longer exempts tobacco, it is still advantageous to the industry. In addition, the effects of the Second Restatement have persisted despite publication of the Third Restatement. Part V analyzes the ALI’s conflict of interest policies, finding them lacking in comparison to policies held by similarly situated scientific and medical institutions, and recommends changes to these policies to prevent bias or the appearance of bias. Finally, Part VI concludes that this tobacco industry influence over the ALI is one instance that demonstrates the ALI’s failings in its promise for objective, scholarly work, and that until the ALI changes its policies, its Restatements cannot be viewed as unbiased authoritative documents.

I. THE AMERICAN LAW INSTITUTE

The American Law Institute is a prestigious independent organization which describes itself as “producing scholarly work to clarify, modernize, and otherwise improve the law” by creating, among other things, Restatements of the Law.¹⁵ Created by teams of legal scholars, including many judges, the Restatements summarize and clarify common law and its statutory elements as they presently stand or might plausibly be stated by a court. These influential reports cover topics such as torts, agency, property, and contracts.¹⁶ Although regarded as a secondary source of law, courts and legislatures across the United States have relied heavily upon the Restatements. By 2001, over 151,000 published cases in the United States— from every state, the District of Columbia, and Puerto Rico—had cited an ALI Restatement.¹⁷ There have been 868 United States Supreme Court cases that have cited an ALI Restatement.¹⁸ The largest portion of these citations (63,035) were to an edition of the Restatement of Torts.¹⁹

Members are elected to the ALI by existing members based on both professional achievement and “high character and ability.”²⁰ Being selected as one of the ALI’s 3000 members is an honor for a lawyer, judge, or legal scholar. An appointment to write or advise on the ALI’s publications is even more prestigious. The process by which a Restatement is created includes many steps. “Reporters,” who are experts in their respective fields of law and usually legal scholars, research and prepare initial drafts of the Restatements.²¹ “Advisers,” a small group of judges, lawyers, and law professors, who specialize in the field of concern, review drafts of the Restatements.²² Early drafts are also reviewed by a “Members Consultative Group” (“MCG”), a group of Institute members with a specific interest in the Restatement topic.²³ Completed “Council Drafts,” prepared by the Reporters in consultation with the Advisors, are submitted to the ALI Council—its volunteer board of directors—for review and approval.²⁴ After considering the Council’s comments, the Reporters and Advisors then present a “tentative draft” to the entire ALI membership for review and approval²⁵ at the ALI annual meetings where it is discussed and approved (sometimes with amendments) or sent back to the Reporters and Advisors for more revisions.²⁶ The drafting cycle continues until the Council and general membership have approved each section of a Restatement; if extensive changes are required, the Reporters may be asked to prepare a Proposed Final Draft for approval by the Council and membership.²⁷ Preliminary drafts, which are initial drafts written by the Reporters with advice from the Advisors, and Council drafts are only released to the entire ALI membership once the entire drafting process is completed.²⁸ None of the drafts are available outside of the ALI membership until publication of the Restatement.²⁹

II. BACKGROUND

A. THE RESTATEMENT (SECOND) OF TORTS

The ALI worked on the Restatement (Second) of Torts from 1955 to 1979, releasing it in four volumes from 1965 to 1979.³⁰ The reporter was William Prosser, Dean of Boalt Law School at the University of California, Berkeley, the leading scholar on strict liability at the time and author of the seminal tort law text, Handbook of the Law of Torts, informally known as “Prosser on Torts.”³¹ The most influential section in the Restatement (Second) of Torts was Section 402A, which described the burgeoning law of strict liability for sellers of products causing harm.³² Section 402A was controversial and went through many drafts over the six years prior to the ALI adopting it in 1964—the same year the U.S. government published the first Surgeon General’s report linking smoking with lung cancer and other disease.³³ Section 402A contained an exemption from strict liability for “good tobacco,”³⁴ requiring that injured smokers sue tobacco companies under negligence, warranty, or some other legal theory that is much harder to prove than strict liability.³⁵ Section 402A effectively ended then-existing litigation against the tobacco companies, and prevented new litigation for almost twenty years.³⁶

B. TOBACCO IN THE 1950S AND 1960S

While the Restatement (Second) of Torts was being written, the negative health effects of tobacco use were of rising public concern.³⁷ An increasing number of scientific studies, dating back to the early 1940s, were illuminating the causal link between smoking and lung cancer, and were beginning to suggest that smoking caused heart disease and other diseases.³⁸ The first tort cases against the tobacco companies for smoking-caused death and injuries began in 1954.³⁹

In 1954, in response to this increasingly challenging environment, and on the advice of the public relations firm Hill and Knowlton, Philip Morris, The American Tobacco Company, and other major tobacco companies ran full-page advertisements headlined “A Frank Statement to Cigarette Smokers.”⁴⁰ The advertisement assured the public (and public-policy makers) that “We [the tobacco companies] accept an interest in people’s health as a basic responsibility, paramount to every other consideration in our business,” and announced the formation of the Tobacco Industry Research Committee (“TIRC”) to sponsor independent scientific research on tobacco and health.⁴¹ Contrary to these public representations, the purpose of the TIRC was to keep the “controversy” about the health effects of smoking alive so the companies could avoid regulation that would reduce smoking (and subsequently their sales and profits).⁴² The formation of the TIRC was the beginning of a decades-long illegal racketeering “enterprise,” in which “over the course of more than 50 years, Defendants lied, misrepresented, and deceived the American public … about the devastating health effects of smoking and environmental tobacco smoke … and they abused the legal system in order to achieve their goal.”⁴³ Another early element of the enterprise was the 1958 formation of the Tobacco Institute to act politically and publicly on behalf of the cigarette companies.⁴⁴

During the mid-1950s, in the wake of mounting knowledge of the harmful effects of cigarettes, the Federal Trade Commission (“FTC”) began increasing its control over cigarette advertising by limiting the tobacco companies from making explicit positive health claims in their advertisements. In 1958, the Legal and Monetary Subcommittee of the U.S. House of Representatives Government Operations Committee investigated the role and responsibility of the FTC in regulating advertising claims that filtered cigarettes were healthier than unfiltered cigarettes, and reported that the tobacco companies had “deceived the American public”⁴⁵ with their claims of health and safety. The subcommittee concluded that filtered cigarettes were not protective or healthier than non-filtered cigarettes, and that the FTC had “failed in its statutory duty to ‘prevent deceptive acts or practices’ in filter-cigarette advertising.”⁴⁶

In response to public concern, in October 1962, President John F. Kennedy appointed the Surgeon General’s Advisory Committee to review the scientific evidence regarding the health effects of smoking. This committee prepared the first Surgeon General’s report, Smoking and Health: Report of the Advisory Committee to the Surgeon General, in 1964.⁴⁷ The report concluded that smoking caused lung cancer in men, and attributed significant annual excess deaths from lung cancer, bronchitis, emphysema, arteriosclerotic, coronary, and degenerative heart disease to smoking.⁴⁸

III. TOBACCO INDUSTRY INFLUENCE OVER THE RESTATEMENT (SECOND) OF TORTS

A. EARLIEST DRAFTS AND THE ORIGINAL INTENT OF SECTION 402A

Mounting evidence of the negative health effects of tobacco use increased the industry’s vulnerability to tort lawsuits for injuries resulting from smoking. Fortunately for the industry, the introduction of Section 402A in the Restatement (Second) of Torts successfully guarded the industry from such lawsuits for decades.

Early drafts and ALI annual-meeting minutes demonstrate that the original purpose of Section 402A was to protect consumers, especially from products that caused substantial harm. The first draft of Section 402A that appeared in the 1958 Preliminary Draft No. 6 of the Restatement (Second) of Torts was not favorable to the tobacco industry. The language in this draft would likely have subjected tobacco products—especially cigarettes—to strict liability,⁴⁹ a situation that persisted through three drafts.⁵⁰ A sudden change occurred in 1962—Section 402A was rewritten to exempt tobacco products from strict liability.

The first two drafts of Section 402A, Preliminary Draft No. 6 in January 1958,⁵¹ and Council Draft No. 8 in November 1960,⁵² imposed strict liability on sellers of food:

402A. Special Liability of Sellers of Food

One engaged in the business of selling food for human consumption who sells such food in a condition dangerous to those who consume it is subject to liability for physical harm thereby caused to them, even though

1. The seller has exercised all possible care in the preparation and sale of the food; and

2. The consumer has not bought the food or entered into any contractual relation with the seller.⁵³

The definition of “food” was “all products intended for internal human consumption, whether or not they have nutritional value,”⁵⁴ specifically including chewing tobacco and snuff as well as candy, beverages, chewing gum, and drugs.⁵⁵ Courts could have used this broad definition, along with the fact that chewing tobacco and snuff were explicitly included in the definition, to include cigarettes within this definition of “food” and therefore covered by Section 402A.

According to Preliminary Draft No. 6, food is in a dangerous condition when:

[T]he food is, at the time it leaves the seller’s hands, in a condition which will in fact be dangerous to the ultimate consumer ….

The dangerous condition may arise … out of harmful ingredients, foreign objects, or other defects in the food itself ….

Food is not in a dangerous condition if it is safe for normal handling and consumption.⁵⁶

Cigarettes easily meet this definition of dangerous because they “leave the seller’s hands in a condition [in] which [they] will in fact be dangerous to the ultimate consumer,” and because the dangerous condition arises “out of harmful ingredients.”⁵⁷ Because cigarettes are products that are unsafe for normal use, they could have been considered dangerous and subject to strict liability in court.⁵⁸ However, due to the sudden change made in 1962, the major cigarette companies would enjoy a much more relaxed standard than was originally conceived.

Preliminary Draft No. 6, prepared by Prosser in 1958 and reviewed by his advisors, includes a handwritten note that shows that they considered the effect of the section on cigarettes when writing it. The handwritten note in Figure 1 appears to state, “cigarette tobacco with smoke near”.⁵⁹ This note suggests that Prosser was specifically considering tobacco products when reviewing this draft.

Figure 1. Editorial Markings on Preliminary Draft January 3, 1958.⁶⁰.

Finally, the preliminary draft described the purpose of the section as to protect the consumer who is least capable of carrying the burden of injuries:

Its basis is that the seller, in marketing his food, has undertaken and assumed a responsibility toward any member of the consuming public who may be injured by it, which makes him liable when the food he sells is in fact unfit for consumption. He becomes in effect an insurer of his product when it is put to normal uses …. [T]he consumer of food is entitled to the maximum of protection at the hands of some one, and that the one to afford it is the person who markets the food.⁶¹

However, subsequent and final versions of the section would not accomplish this goal, but instead failed to protect consumers as originally intended.

B. TENTATIVE DRAFT NO. 6: THE RESTATEMENT BEFORE TOBACCO-INDUSTRY-INFLUENCED CHANGES

The draft that followed Council Draft No. 8 (where very few changes occurred) was Tentative Draft No. 6, prepared in April 1961 for review by ALI membership at the 38th Annual ALI meeting in May 1961. The draft still applied strict liability to food (including chewing tobacco and snuff), but the definition of food now excluded items for “external human consumption,” which explicitly included cigarettes and cigars as well as clothing, hair dye, cosmetics, and soap.⁶² At the same time, however, Section 402A included a caveat that the ALI “expresse[d] no opinion as to whether [strict liability] appl[ied] to articles other than food.”⁶³ This caveat would have left courts open to follow Section 402A and still impose strict liability on cigarettes and cigars. Indeed, the ALI stated that it was not outside the realm of law to apply strict liability to products for external use:

It is evident that the probable development of the law will carry the strict liability to many products other than food. There is still great uncertainty as to whether there are any limits, and if so what. The Advisers and the Council favor the Caveat, in the absence of any guide as to how to state or limit the liability. The only other possibility which the Reporter can suggest is to include all products for intimate bodily use, but leave other products to the Caveat.⁶⁴

The limitation of dangerous food was narrowed to “food in a defective condition unreasonably dangerous to the consumer.”⁶⁵ “Defective,” as defined in comment “e” to Tentative Draft No. 6, meant:

[T]he food is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. The seller is not liable when he delivers food in a safe condition, and subsequent mishandling or other causes make it harmful by the time it is consumed ….

Food is not in a defective condition when it is safe for normal handling and consumption ….

The defective condition may arise not only from harmful ingredients in the food itself, or from foreign objects contained in it, or from decay or other deterioration before sale, but also from the way in which it is prepared or packed.⁶⁶

Comment “f” explained “unreasonably dangerous”:

The rule stated in this Section applies only where the defective condition of the food makes it unreasonably dangerous to the consumer. Many products cannot be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use in Italy as an instrument of torture. That is not what is meant by “unreasonably dangerous” in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, without special knowledge of its characteristics.⁶⁷

These definitions of “defective” and “unreasonably dangerous” could have proven disadvantageous to the tobacco industry. Cigarettes, as manufactured and delivered, were, as the science of the time had proven, not safe for normal consumption.⁶⁸ In addition, at the time, most smokers had started smoking before there was widespread public appreciation of the dangers of smoking, and some cigarette companies had promoted their products as safe,⁶⁹ making it possible to argue that cigarettes were in a condition not contemplated by the ultimate consumer and “dangerous to an extent beyond that which would be contemplated by the ordinary consumer.”⁷⁰ Thus, the definition as it stood could have rendered tobacco companies liable for producing and selling a product that was both possibly defective and unreasonably dangerous. Unsurprisingly, this language in Tentative Draft No. 6 drew the attention and concern of the industry.

C. ALI 38TH ANNUAL MEETING

Discussion of Section 402A occupied one day of the four-day 38th Annual ALI Meeting in May 1961. Prosser wanted to discuss the new phrase “defective condition unreasonably dangerous to the consumer,” which he intended to mediate between protection of the consumer and protection of defendants from unwarranted fault.⁷¹ In his opening remarks, he stated that:

“[U]nreasonably dangerous to the consumer” is intended to head off liability for a product which is sold where there is nothing wrong with the product as a product, but nevertheless it is going to injure some people. A good many individuals are allergic to strawberries and eggs. That doesn’t mean that there is anything wrong with the food. There is something wrong with the individual. “Defective condition” and “unreasonably dangerous” are deliberately designed to protect the defendant against undue liability.⁷²

The phrase was aimed at products that are, in themselves, safe for the majority of consumers, but injure some consumers due to some specific susceptibility of the consumer, and not through fault of the defendant’s actions.⁷³

Further discussions seem to clarify that the section was designed with the intent of protecting the consumer, an atypical position for the ALI, which is seen as traditionally having a pro-defense orientation.⁷⁴ During the meeting, the members discussed whether only the manufacturers should be liable or if retailers and wholesalers should also be included.⁷⁵ In that discussion, Prosser responded that “[i]f the purpose of this thing is—as it obviously is—to afford the maximum of protection to the injured consumer at the hands of somebody, there are good reasons for letting him sue and recover against both the retailer and the wholesaler.”⁷⁶ Later, when discussing whether notice to the defendant should be required as it was with warranty cases, Prosser made some other plaintiff-friendly remarks:

There are … some products which are unfit for any kind of use, no matter what kind of notice you give—at least for any use likely to be made of them. If somebody sells a biscuit full of potassium cyanide,⁷⁷ I don’t think any court in the country has ever held or ever will hold that he can escape liability by putting on the box, “Don’t eat these.” …

On the other hand, many things which involve recognizable dangers are reasonably safe if properly used: castor oil, the maximum dose—that kind of thing. Still other things are reasonably safe for certain types of people. Others are allergic to the product.⁷⁸

There was some argument over whether “unreasonably dangerous” was sufficient to encompass the idea of “defective.” Prosser had originally believed that the addition of the word “defective” was unnecessary alongside “unreasonably dangerous,” and explained his changed position on the necessity of adding “defective”:

The Council [raised] the question of a number of products which, even though not defective, are in fact dangerous to the consumer—whiskey, for example [laughter]; cigarettes, which cause lung cancer; various types of drugs which can be administered with safety up to a point but may be dangerous if carried beyond that—and they raised the question whether “unreasonably dangerous” was sufficient to protect the defendant against possible liability in such cases.

Therefore, they suggested that there [sic] something must be wrong with the product itself, and hence the word “defective” was put in; but the fact that the product itself is dangerous or even unreasonably dangerous, to people who consume it is not enough [to establish liability]. There has to be something wrong with the product.⁷⁹

Prosser and the Council were concerned about protecting companies that made products—like cigarettes—that were unreasonably dangerous even when manufactured as intended.⁸⁰ However, the language that they created to cure the problem as they saw it still would have allowed for the application of strict liability to cigarettes. The plain language of Section 402A contradicts Prosser’s stated intentions in the meeting. One member of the Council, who previously agreed to add “defective,” became confused and concerned about the differing discussions of the use of “defective.” He stated:

Now that we have extended this to hair dye, soap, and detergents, I am afraid of “defective.” Suppose the hair dye is allergic to most people, or the detergent is allergic to most people. It may be made exactly the way the manufacturer intended that it be made, and it seems to me that he is in a position to claim that it is not defective as long as it is made the way he intended it to be made. It seems to me this [the word “defective”] ought to come out.⁸¹

Regardless of discussions about “unreasonably dangerous” and “defective,” the ALI membership seemed to understand that tobacco, along with all products consumed internally, would be included as a product subject to strict liability under Section 402A along with food items and items for external use. When discussing Section 402B (which dealt with the misrepresentation of goods through advertising, labels, and the like) later in the meeting, a member remarked, without any rebuttal, that “[i]t seems to me that salt substitutes, permanent wave sets, tobacco, boneless chicken, all come within 402A.”⁸² The tobacco industry would not let this situation remain for long.

D. THE TOBACCO INDUSTRY ENGAGES SECTION 402A

The first indication of tobacco industry awareness and concern about the Second Restatement came just a month after the ALI’s 38th Annual Meeting discussing Tentative Draft No. 6.⁸³ A letter dated June 29, 1961, from Jack Johnston of the law firm White and Case, long-time tobacco industry counsel, to Addison Yeaman, general counsel for Brown and Williamson Tobacco, transmitted a memorandum which Johnston wrote for Lowell Wadmond, counsel at White and Case for Brown and Williamson, pertaining “to an Amendment to the Restatement of Torts which could possibly have adverse affects on our cigarette-cancer suits.”⁸⁴

It is not surprising that the tobacco companies were aware of the Restatement (Second) of Torts and specifically Section 402A. The 1961 and 1962 membership of the ALI included many prominent lawyers from tobacco industry law firms.⁸⁵ As members of the ALI, these lawyers would have received Tentative Drafts of the Restatement (Second) of Torts for review at the ALI annual meetings. None of the industry lawyers were, however, members of the ALI Council or Advisory Committee, and none were listed as attending the 38th and 39th Annual Meetings of the ALI in 1961 and 1962.⁸⁶

E. THE TOBACCO INSTITUTE’S COMMITTEE ON LEGAL AFFAIRS

In September 1961, three months after the memo to Lowell Wadmond, the Tobacco Institute’s Committee on Legal Affairs—which consisted of lawyers from the major tobacco companies and the major law firms that represented the companies—discussed Section 402A from Tentative Draft No. 6.⁸⁸ The Committee was concerned about the probable negative effects the section would have on the tobacco industry if it was published. Although three Committee on Legal Affairs members were ALI members (its chair H. Thomas Austern⁸⁹ from Covington & Burling and members Francis H. Horan, Liggett & Myers general counsel, and Paul D. Smith, Philip Morris vice president and general counsel),⁹⁰ the Committee’s disapproval of the section extended to the ALI as well:

[The Restatement (Second) of Torts Section 402A] was a matter to which members of the Committee had given a great deal of study in defending cancer cases. The American Law Institute purports to exist to unify and clarify the law. However, the proposed changes show very clearly an attempt not to state the law but on the contrary to state what the draftsman desires the law to be.⁹¹

The Committee expressed concern that, although Section 402A applied only to food, the caveats left room for interpretation:

[Section 402A] is set up in form to indicate that only the purveyors of food for human consumption are covered by the proposed section. However, in almost every statement of the law there is a caveat stating that the Law Institute expresses no opinion as to whether the rules stated in this section may apply, etc., the statute leaving for interpretation substantially all of the difficult or doubtful problems.⁹²

The Committee felt that Tentative Draft No. 6 was unacceptable as written and would be very harmful for the future of the tobacco industry. “The effect of the proposed section would be substantially the same as if the American Law Institute should file a brief in behalf of the plaintiffs and against the defendants in the cancer cases.”⁹³

Chairman H. Thomas Austern then noted during the meeting that the Committee had solely focused on problems with the section, and not how to change the language of the section to be a benefit rather than a detriment to the industry.⁹⁴ The Committee on Legal Affairs decided to establish a subcommittee headed by Austern to discuss the problems with Section 402A and develop beneficial language.⁹⁵ The Committee also decided that it should not follow the traditional, formal routes through the ALI to submit suggested changes.⁹⁶ Rather, according to the meeting minutes, “[i]t was decided that it would be a mistake of strategy to submit to the American Law Institute a formal argument in opposition to the section.”⁹⁷

The Committee on Legal Affairs and Austern’s subcommittee met several times during the following months, but meeting minutes and three other documents pertaining to the Committee’s work on the Restatement (Second) of Torts have been withheld on various privilege claims.⁹⁸

F. THE MEETING WITH PROSSER AND SUBSEQUENT CHANGES TO SECTION 402A

Two days after the December 6, 1961 meeting, the Committee on Legal Affairs circulated to its members “Suggestions for Revision of Comment f” of Section 402A of the Tentative Draft No. 6 detailing specific changes that the Committee wanted, indicated through a redline format.⁹⁹ The suggested changes put the onus on the consumer rather than the product manufacturer by not requiring warnings for products that are known to be dangerous or are only dangerous if consumed “habitually.”¹⁰⁰ Due to increasing knowledge at the time of the dangers of smoking and the addictive nature of tobacco leading to habitual use, these changes would have allowed the tobacco companies to escape the labels of “defective” and “unreasonably dangerous” due to a lack of warning labels. The relevant changes to the comment the Committee suggested were:

This means that the seller may be required to give directions or warning, on the container, as to the use of the product. The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number of the population is allergic, and the ingredient is one whose danger is not generally known or which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it. if he has knowledge, or upon the application of developed human skill and foresight could have knowledge, of the presence of the ingredient. Likewise A seller has a like duty to warn in the case of poisonous drugs, or those unduly dangerous for other reasons., warning as to use is required, But a seller is not required to warn with respect to products, or ingredients of products, other than drugs, which are only dangerous, or possibly dangerous, when consumed habitually or over a substantial period of time, and where such danger, or possibility of danger, is generally recognized. Examples of such products are alcohol and foods containing such substances as saturated fats. But when When such warning is called for, and not given, the product is in a defective condition, and is unreasonably dangerous.¹⁰¹

Some time during the next week (between December 7 and 14, 1961) Austern’s subcommittee met with Prosser to discuss the Restatement.¹⁰² The next draft of Section 402A appeared in Council Draft No. 11, released March 1, 1962, three months after Prosser’s meeting with the Austern subcommittee.¹⁰³ The changes between the new draft and Tentative Draft No. 6 were substantial. The new “comment j. Directions or warning” contained almost the exact language the Tobacco Institute Committee on Legal Affairs developed the previous December. A few words were changed, some more beneficial to the tobacco industry (excessive quantity instead of habitual), and very few of the suggested changes were rejected or modified (such as rejecting removal of “warning as to use is required” and changing “possibly” to “potentially”). The new comment read, with language from Austern’s subcommittee italicized:

Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. Likewise, in the case of poisonous drugs, or those unduly dangerous for other reasons, warning as to use is required.

But a seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or possibility of danger, is generally known and recognized. Again the dangers of alcoholic beverages are an example, as are also those of foods containing such substances as saturated fats, which may over a period of time have a deleterious effect upon the human heart.¹⁰⁴

Perhaps more importantly, a specific exemption for “good tobacco” was added to the comment defining “unreasonably dangerous”:

Ordinary sugar is a deadly poison to diabetics, and castor oil found use in Italy as an instrument of torture. That is not what is meant by “unreasonably dangerous” in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it,¹⁰⁵ with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous because, as is generally recognized, the effects of smoking are harmful; but tobacco containing something like marijuana may be.¹⁰⁶

The Council approved adding “good tobacco” at its March 1962 meeting; the ALI Council meeting notes do not describe any discussion about the change, just that it was accepted.¹⁰⁷

On April 16, 1962, the ALI released Tentative Draft No. 7 to all its members, with small, but important, changes from the last Council draft to both the “defective” and “unreasonably dangerous” requirements.¹⁰⁸ The “defective” requirement changed so that the defect must come from something not characteristic of the product itself, and the statement “the effects of smoking are harmful” in the “good tobacco” exemption was changed to provide that smoking “may be harmful.”¹⁰⁹

After the release of Tentative Draft No. 7, but before the next ALI annual meeting, John S. Koch, a lawyer at Covington & Burling LLP and frequent attendee of the Committee on Legal Affairs meetings, wrote a letter to the Committee on Legal Affairs discussing the Restatement. The May 3, 1962, letter in the Philip Morris documents describing the discussion has been withheld as privileged.¹¹⁰ A copy of sections of Tentative Draft No. 7 immediately follows the privileged document by Bates number¹¹¹ (suggesting that it was attached to the privileged letter), with check marks next to the “good tobacco” exemption, suggesting satisfaction with the changes.¹¹²

The ALI discussed Tentative Draft No. 7 at its Annual Meeting in May of 1962. Neither Prosser nor the membership made any mention of the addition, origins of, or reasoning behind the “good tobacco” exemption or of the new section on warnings suggested by the Tobacco Institute Legal Affairs Subcommittee. Section 402A was approved with a caveat for some unrelated changes, very little discussion, and no discussion of the new language that specifically benefited the tobacco industry. The Restatement went through one more drafting cycle, expanding strict liability to all products but retaining tobacco-relevant language,¹¹⁴ before acceptance and release in 1964.¹¹⁵

IV. TOBACCO INDUSTRY INFLUENCE OVER THE RESTATEMENT (THIRD) OF TORTS

A. THE RESTATEMENT (THIRD) OF TORTS: PRODUCT LIABILITY

In 1991, twenty-six years after Section 402A of the Restatement (Second) of Torts was published, the ALI began planning for the next Restatement.¹¹⁶ The Third Restatement on products liability took seven years and sixteen drafts, with the Restatement (Third) of Torts: Products Liability published in 1998. During the decades following the Second Restatement, the law of products liability became far more complicated. Instead of devoting one section of the Restatement to products liability, the topic took up an entire book in the Third Restatement. The Restatement (Third) of Torts: Products Liability is an extensive expansion of the original doctrine.

The main concept remained the same—a manufacturer or seller of a defective product is liable for harm caused by the defect—but the Third Restatement created three classifications for “defective”: manufacturing defect, design defect, and warning defect.¹¹⁷ A manufacturing defect occurs when the product does not conform to its intended design.¹¹⁸ A design defect occurs when foreseeable risks could have been reduced or avoided by a reasonable alternative design.¹¹⁹ A warning defect occurs when foreseeable risks associated with the product could have been avoided or reduced by the presence of reasonable warnings or instructions to the consumer.¹²⁰ This classification scheme sets a substantial hurdle for injured plaintiffs in tobacco cases because basing a tobacco lawsuit on a manufacturing defect or warning defect is not viable,¹²¹ and the requirement to prove a reduced risk by an alternative design requires that the plaintiff prove the existence of a better alternative design and that the tobacco companies acted negligently in not adopting that design—far too high of a hurdle for most plaintiffs to cross.¹²²

The iconic Prosser died in 1972, and in May 1992 the ALI split the task of writing the Restatement (Third) between two tort-law professors—Aaron Twerski from Brooklyn Law School and James A. Henderson from Cornell University.¹²³ Both had authored several books and articles individually and together on products liability.¹²⁴ At the time the ALI chose them as Reporters for the Third Restatement they were publishing an article on their proposed revision of Section 402A.¹²⁵

B. THE STATE OF TOBACCO CONTROL IN THE EARLY 1990S

Twenty-five years after the first Surgeon General’s report on smoking, the early 1990s were marked by strong political movements supporting tobacco control. In 1992, Congress passed the Synar Amendment requiring states to enact and enforce laws prohibiting the sale or distribution of tobacco products to minors,¹²⁶ and the U.S. Environmental Protection Agency released a 525-page report, Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, declaring cigarette smoke to be a Group A (proven human) carcinogen,¹²⁷ which reinforced the Surgeon General’s 1986 conclusion that secondhand smoke caused lung cancer;¹²⁸ the two reports together accelerated passage of laws restricting where people could smoke. As he entered his presidency in 1993, Bill Clinton declared the White House smoke-free.¹²⁹ Also, in 1994, the Occupational Safety and Health Administration (“OSHA”) proposed a rule prohibiting smoking in the workplace.¹³⁰ In 1995, the Food and Drug Administration, led by Commissioner David Kessler, announced plans to regulate cigarettes as drug-delivery devices.¹³¹ Passage of local restrictions on smoking was accelerating,¹³² and in 1994 California passed a state law (A.B. 13) making all workplaces, including restaurants and bars, smoke-free.¹³³

Tort litigation against the tobacco companies for injuries caused by smoking cigarettes started up again in the early 1990s, a resurgence known as the “third wave” of tobacco litigation, including both private and public actions.¹³⁴ The first large class-action suit, filed in 1991, was brought by a group of nonsmoking flight attendants suffering from illnesses caused by secondhand smoke exposure at work.¹³⁵ In 1994, a consortium of major law firms filed another class-action suit, Castano v. American Tobacco, “on behalf of ‘all nicotine-dependent persons in the U.S.’ and their families and heirs.”¹³⁶ Also in 1994, the Attorney General of Mississippi, followed by Minnesota, West Virginia, Florida, and Massachusetts by the end of 1995, brought suit against the tobacco companies for reimbursement of state Medicaid costs incurred treating people for smoking-related illnesses and for injunctive relief to restrain cigarette-company marketing practices.¹³⁷

Aiding lawsuits against the tobacco companies, an informant, known only as Mr. Butts, sent a box of confidential internal-industry documents from the Brown and Williamson Tobacco Company and its parent British American Tobacco to Dr. Stanton Glantz at the University of California, San Francisco, and to major news outlets in 1994.¹³⁸ In short, at the time work on the Third Restatement was proceeding, the tobacco industry was under substantial political and legal pressure on many fronts.

C. ALI PARTICIPANTS’ TOBACCO INDUSTRY TIES

By the time the effort to prepare the Third Restatement started, tobacco industry lawyers had thirty years of experience using the Restatement (Second) of Torts to their advantage,¹³⁹ so the tobacco companies were well-positioned when the ALI proposed the Third Restatement of Torts. Both Reporters, James Henderson and Aaron Twerski, an Advisor, Victor Schwartz, and two members of the Members Consultative Group (“MCG”), Stanley Temko and Sam Witt, had been or were working with the tobacco companies.¹⁴⁰

Victor Schwartz, an Advisor to the Reporters and a well-respected and well-known tort law scholar, succeeded Prosser as editor of Prosser, Wade and Schwartz’s Torts: Cases and Materials.¹⁴¹ He was also a longstanding partner at Crowell and Moring,¹⁴² a law firm that represented tobacco companies.¹⁴³ The tobacco industry followed Schwartz’s work in the early 1980s on asbestos liability very closely. Tobacco industry members attended meetings where Schwartz spoke on asbestos liability,¹⁴⁴ and circulated amongst themselves both memos he wrote to industry committees concerned with tort reform¹⁴⁵ and speeches he gave on asbestos and products liability legislation.¹⁴⁶ In 1982, Wilson Wyatt, corporate affairs and communications manager for Brown and Williamson Tobacco Company,¹⁴⁷ met privately with Schwartz to discuss the possible implications of a new federal products liability bill for the tobacco industry.¹⁴⁸ In late 1984, William Adams, the Tobacco Institute’s controller,¹⁴⁹ provided tickets to several influential Washingtonians, including Schwartz and his wife, to accompany Adams and his wife to the National Symphony Ball that President Ronald Reagan and the First Lady would attend.¹⁵⁰

In August 1985, Schwartz and Twerski appeared on CNN’s Newsmaker Sunday to discuss cigarette liability with John Banzhaf, an attorney from the anti-smoking organization Action on Smoking and Health.¹⁵¹ The second wave of tobacco litigation had just begun with the filing of Cipollone v. Liggett Group Inc., the first new case in nearly twenty years against tobacco companies for injuries sustained from the use of their product.¹⁵² CNN wanted opinions from both sides of the issue, as well as legal experts, on the likely outcome of the case and what it could mean for the industry.¹⁵³ In the broadcast, there was no mention of Schwartz’s connections with the tobacco industry, which had declined to participate in the debate.¹⁵⁴ Indeed, at the beginning of the program, the moderator said, “The cigarette industry was unable to provide a spokesman to be on this program and CNN regrets the tobacco industry’s absence and any effect it might have on balance and perspective which are hallmarks of this program.”¹⁵⁵ Schwartz, introduced as a products liability expert and author of leading tort textbooks, was reserved and made the general arguments against liability for cigarettes: people know the dangers of cigarette use, so the lawsuits have no basis in court and are just a way for plaintiff lawyers to get rich.¹⁵⁶

The Legacy Library documents do not show a relationship between Twerski and the tobacco industry at or before the time of the broadcast in August 1985,¹⁵⁷ but Twerski was emphatic in criticizing smoking and health lawsuits:

I believe that the [cigarette cancer] suits are basically illegitimate. I believe that the cigarette cancer cases are really a test of whether or not American courts are going to have the good sense to stay out of deciding a debate which has been … raged on the national scene for the last 40 years. And I believe that these cases are basically non-justiciable …. I think that basically the cases are going to be tried under a negligence formula … and that that standard of care is going to be as difficult to prove as it was many years ago.¹⁵⁸

By 1986, Twerski was working for the tobacco industry.¹⁵⁹ In 1985, the Tobacco Institute formed its Ad Hoc Committee on Tort Reform, beginning its campaign to change state tort laws to the benefit of the tobacco industry.¹⁶⁰ Covington & Burling supported the Committee, and in September 1987 billed the Tobacco Institute $12,548 to pay Aaron Twerski as a consultant for their tort reform work in New Jersey for the previous fiscal year.¹⁶¹ Two years later, in February 1989, Covington & Burling paid Twerski $11,839.50 for two months of consulting work on Lorillard Tobacco’s product liability reform projects.¹⁶² An American Tobacco Company budget lists Twerski and James A. Henderson as legal consultants on tort reform issues to be paid $26,592 and $25,188, respectively, between June 1990 and December 1991.¹⁶³ In 1990, American Tobacco Company paid Twerski an additional $8671 for tort reform coalition building¹⁶⁴ and $20,000 for work on mass torts,¹⁶⁵ for a total of $55,263.

In 1991, while working as consultants for American Tobacco Company, Twerski and Henderson wrote the law review article Closing the American Products Liability Frontier: The Rejection of Liability Without Defect, arguing that courts have not and should not impose, nor are they capable of imposing, strict liability on “risky products, such as handguns, cigarettes, and alcoholic beverages” because courts would not be able to handle the influx of litigation and because markets and legislatures are better suited to manage use of such products.¹⁶⁶ They noted that many courts had rejected such categorical liability for these products, and that “[i]t may take time to educate the few who are inclined to think otherwise.”¹⁶⁷ They also stated that:

[I]t is frequently difficult to see where the relevant markets have failed in any ordinary sense of the term. Americans may smoke and drink too much; but in substantial measure that is probably because many Americans who do so prefer to engage in those activities knowing of the relevant risks. Those who would prohibit outright or via a crushing liability tax the routine commercial distribution of unavoidably unsafe products may be reacting not so much to society’s ignorance of the relevant risks as to society’s indifference to them.¹⁶⁸

In 1993, after being appointed as a Reporter for the Restatement, Twerski informed Covington & Burling that he would no longer be able to work as a consultant, or continue testifying in favor of pro-tobacco legislation for the Tobacco Institute’s Ad Hoc Committee on Tort Reform.¹⁶⁹

Twerski did not, however, completely sever his connections with the tobacco industry. In 1996, the year before ALI published the Third Restatement, Twerski was a keynote speaker at an Arnold & Porter conference entitled Limiting Products and Toxic Tort Liability in the Nineties: Strategies and Solutions. Arnold & Porter, another major tobacco industry law firm, invited Senior Vice President of Philip Morris, Denise F. Keane, to the conference,¹⁷⁰ where Twerski spoke on the Restatement.¹⁷¹

Schwartz’s connection and work for the tobacco companies continued through the 1990s while he was an Advisor to the Restatement. In September 1993, over a year after his May 1992 acceptance of the ALI’s offer of appointment as Advisor,¹⁷² Covington & Burling budgeted $85,000 to Schwartz for “general support in a variety of ways to the tort reform effort” in 1994, in addition to the $100,000 (out of a budgeted $150,000) for 1993.¹⁷³

In 1993, Schwartz testified on behalf of the tobacco industry as a legal scholar before the Maryland Legislature’s House of Delegates’ Environmental Matters Committee on secondhand smoke issues.¹⁷⁴ He is also listed as a paid expert witness for the Tobacco Institute for hearings in the U.S. House of Representatives on Representative Henry Waxman’s (D-CA) “smoking ban bill” in 1994 for approximately $3,000.¹⁷⁵ In May 1995, he spoke on Liability Reform in the 1990s: “Can it Happen and Can it Help?” at a Philip Morris conference exploring important legal topics for their legal department.¹⁷⁶

Schwartz also worked closely with the Tobacco Institute’s Tort Reform Policy Committee during his time as Advisor. Covington & Burling listed Schwartz as an individual who could communicate pro-tobacco messages to various audiences in an April 1995 public relations response plan prepared for Philip Morris to counter public attitudes concerning mounting tobacco litigation.¹⁷⁷ Schwartz attempted to bill Philip Morris for at least some of the time he devoted to his duties as an Advisor. In May 1993, Charles Wall, Vice President of Philip Morris Companies Inc., wrote Schwartz concerning his latest bill:

Dear Victor,

I have approved your November bill for products liability work. I do not think you should bill us for any ALI work, except for discussions with us regarding the work being done.

Attendance at ALI meetings, discussions with ALI members, and work on the Restatement do not seem to me to be appropriate for billing.¹⁷⁸

D. THE TOBACCO INDUSTRY’S RESPONSE

The ALI began work on the Third Restatement in April 1992.¹⁷⁹ The first tobacco document referring to the Restatement in the Legacy Library is a Tobacco Institute update regarding Institute efforts on federal products liability issues dated December 14, 1992.¹⁸⁰ The memorandum states that Schwartz would brief the Tobacco Institute’s Tort Reform Policy Committee (“TRPC”)¹⁸¹ on the status of the ALI’s project to prepare a Restatement of products liability law.¹⁸²

The Restatement is listed in the TRPC agendas from June 10, 1993, to January 27, 1995.¹⁸³

In January 1994, Keith Teel, the Covington & Burling lawyer who chaired TRPC, wrote TRPC committee members addressing what he saw as problems with ALI Council Draft No. 1A of the new Restatement. He stated that new language in the Restatement would undermine the “unreasonably dangerous” principles of the Restatement (Second) of Torts.¹⁸⁴ Council Draft No. 1A stated that plaintiffs must show that an alternative design would have prevented or reduced injury even if the plaintiff alleged that the category of product was so dangerous that it should not have been sold at all.¹⁸⁵ The draft continued to say that some courts “have suggested that some product categories have such a high degree of danger and such low social utility that liability should attach even if the plaintiff is unable to establish a reasonable alternative design.”¹⁸⁶

Teel’s memo suggested some possible next steps that could be used to counter this new language about products with low social utility and high danger:

We should urge that this language be deleted. I understand that Victor Schwartz has already been at work on this, and he will continue his efforts. We can also provide ALI reporter Aaron Twerski with comments, and we will do so unless any of you object. All of us should speak with ALI members with whom we have contacts about this issue, and particularly with those who are on the advisory committee for the Restatement ….¹⁸⁷

The TRPC met on February 8, 1994, to discuss Council Draft No. 1A. Before the meeting, Teel wrote TRPC members detailing the current status of many of the Committee’s ongoing tort reform projects, including the Restatement (Third) of Torts.¹⁸⁸ Teel reiterated his concern about language concerning products of low social utility and high danger, reported his actions, and suggested a plan to move forward:

I have discussed this matter with several of the lawyers on the [Tort Reform] Policy Committee, and the level of concern seems to be great. Since sending my memorandum I have also spoken with Victor Schwartz and have encouraged him to continue his efforts to have the offensive language deleted. Victor believes this provision is intended to appease the trial lawyers. I asked him if he thought there would be a problem if we were to send a set of comments and a letter directly to Aaron Twersky [sic], and he indicated that he thought this might be useful.¹⁸⁹

In Lorillard’s copy of the memorandum is a handwritten note that appears to state, “we will fund [illegible] to write to the drafters.”¹⁹⁰

The ALI released Tentative Draft No. 1 to the ALI general membership on April 12, 1994, in preparation for the May 1994 ALI Annual Meeting.¹⁹¹ The offending language, opening ground for courts to find the manufacturers of products with high danger and low social utility liable for injuries caused by these products, had been removed and replaced with:

Whether tort liability should be imposed for categories of products that are generally available and widely used and consumed, but are considered socially undesirable by some segments of society, should not be resolved by the courts. That issue is better suited to resolution by legislatures and administrative agencies, which can more appropriately consider whether distribution of such product categories should be prohibited.¹⁹²

The Council received the next Council Draft in September 1994, accommodating comments from the May 1994 ALI Annual Meeting. This draft kept the language that legislatures—not courts—should decide liability for socially undesirable products but, due to comments of the ALI general membership, also reinstated the language that several courts have suggested for liability for products of high danger and low social utility, now also calling them “manifestly unreasonable” products.¹⁹³ On January 19, 1995, the TRPC again discussed the Restatement. In a memo to the TRPC in preparation for the meeting, Teel addressed continuing problems with the Restatement, and the return of language they had previously succeeded in removing. Though parts of the memo were redacted, several comments on the Restatement remained:

A proposed Restatement (Third) of Torts concerning product liability is close to completion. The black-letter law in the current draft is fine, but some of the commentary is unfavorable. For example, the draft comments contain a favorable “comment i” provision, but they also contain a provision that would allow liability to be imposed on certain rather ill-defined products that a jury finds pose a great risk without any corresponding social utility. Such a provision may eventually undercut the rationale of comment i, at least for some products. This unfavorable commentary was deleted from the draft prior to its consideration at the American Law Institute’s annual meeting in May 1994, but it was reinserted following a floor vote. We need to try again to excise this commentary. We should also have several industry lawyers carefully examine the draft to identify other sources of concern. This must happen within the next six weeks so we can prepare a plan to correct any deficiencies.¹⁹⁴

The TRPC met again on January 27, 1995, with “American Law Institute Restatement Project” listed on its agenda,¹⁹⁵ but neither notes nor preparatory memos are available. With two years left before the completion of the Third Restatement, this is the last tobacco document concerning the Restatement. However, the successful experiences from the Second and Third Restatements were important to the tobacco industry; a September 1996 review of litigation from R.J. Reynolds’ Vice President of State Government Relations, Roger Mozingo,¹⁹⁶ lists several tort reform goals, including a desire to “[i]nfluence development of tort law through groups like the American Law Institute.”¹⁹⁷

As was the case during the drafting of the Restatement (Second) of Torts, there are several documents for which privilege is claimed that may give insight into the tobacco industry’s plans to change certain elements of the Restatement and its impressions of the effects of the Restatement on the future of tobacco litigation.¹⁹⁸

E. THE FINAL OUTCOME

The draft of the Third Restatement presented to the ALI membership for approval at its 1997 meeting included the exemption for tobacco, as well as for alcohol, firearms, and above-ground swimming pools.¹⁹⁹ The draft exempted these products because they are generally available and widely used and consumed even though they pose a substantial risk of harm, and therefore manufacturers should not be automatically liable for the injuries they cause.²⁰⁰ During the discussion, Professor Jay Dratler from the University of Hawaii requested that tobacco be removed from the list of products not subject to strict liability.²⁰¹ He argued that tobacco is unlike firearms, above-ground swimming pools, and alcohol because “[i]t is the only one of those four items that has been admitted, by at least one major producer, [to be] addictive.”²⁰² Dratler also argued that the law on tobacco in products liability was still developing in 1997, and that the ALI should not be creating such a “blanket exemption” when, as he believed, the case law in the Reporter’s notes did not support such an exemption.²⁰³ Twerski responded by arguing that there was sufficient case law in support of the exemption.²⁰⁴ Claiming time constraints, the ALI president put the amendment to remove tobacco from the exemption to a vote without further discussion.²⁰⁵ Through a “chorus of ayes,” a “chorus of noes,” and a “showing of hands” for both sides, the director and president decided that the “ayes” carried the day—that the removal of the tobacco exemption was passed by the membership.²⁰⁶

Although the blanket exemption for tobacco was removed from the Third Restatement, the final document is still advantageous to the tobacco companies and presents a major hurdle for any plaintiff. Under the Third Restatement, because plaintiffs can rarely claim manufacturing or warning defects, plaintiffs have to make a design defect claim.²⁰⁷ Even though tobacco products could, in theory, be subject to strict liability because the ALI removed the exemption, in reality, because of the requirements to prove a design defect claim, plaintiffs have to show negligence on the part of the defendant manufacturer.²⁰⁸ To claim that the product has a bad design, the plaintiff has to present a reasonable, safe, alternative design, the omission of which rendered the product not reasonably safe—a high order for a plaintiff in a cigarette case.²⁰⁹

F. LASTING EFFECT OF THE RESTATEMENTS

Section 402A of the Restatement (Second) of Torts was widely adopted by state legislatures and courts and had a powerful impact on legal scholarship.²¹⁰ It set a standard for consumer protection and clarified a new area of law that swept the country. By 1971, seven years after its publication in 1965, over half of the states had adopted the principles of Section 402A by legislation or judicial decision.²¹¹ State legislatures and courts relied on Section 402A’s “good tobacco” exemption to keep personal-injury tobacco lawsuits out of court. Over time, the principles of product liability law became more complicated, combining ideas of design and manufacturing defects with the basic concept of defectiveness.²¹²

The Third Restatement addressed these newer ideas, and some states combined the language of the design and manufacturing defect concepts of the Third Restatement with the “defective condition unreasonably dangerous” standard of the Second Restatement.²¹³ Nevertheless, in 2011, thirteen years after the ALI published the Restatement (Third) of Torts that deleted the “good tobacco” exemption, laws referencing Section 402A from the Restatement (Second) of Torts remained in effect in at least twenty-four states, and courts continued to treat Section 402A as good law, providing ongoing benefits to the tobacco industry.²¹⁴

The tobacco companies used Comment i from the Second Restatement to push state legislatures and courts to adopt the language. A search for “Comment i” in the Legacy Library reveals more than 4500 documents discussing or referring to the Section.²¹⁵ For example, in 1987, at a dinner hosted by then California Assembly Speaker Willie Brown, the tobacco companies brokered a deal between the tobacco industry, trial lawyers, the California Medical Association, and the insurance companies to enact tort reform legislation that exempted tobacco from tort liability using “Comment I” language.²¹⁶ Willie Brown received $635,000 of tobacco industry campaign contributions between 1976 and 1996—three times the amount of any other legislator at the time.²¹⁷ The legislation was pushed through at the very end of the legislative session, bypassing most normal processes,²¹⁸ and remained in force until 1997 when it was amended to allow tort lawsuits against the tobacco industry²¹⁹ in response to the wave of anti-tobacco litigation that was sweeping the country.²²⁰

There is a stark difference in tobacco litigation between states that, judicially or legislatively, adopted the tobacco exemption of Section 402A and those that did not. In 1993, the Texas legislature adopted Section 82.004 of the Civil Practice & Remedies Code, codifying Section 402A Comment i.²²¹ The Texas judiciary applied the law as a complete bar to any products liability suit against the tobacco companies for injuries incurred from tobacco use, including suits alleging breach of implied warranty, conspiracy, and battery.²²² In Mississippi, the legislature adopted Section 402A in 1993, but did not codify comment i.²²³ State courts, however, assumed legislative intent to adopt comment i, and applied the good-tobacco exemption, at first barring product liability suits against tobacco companies,²²⁴ then deciding that the statute does not preclude recovery in such cases but instead provides a defense.²²⁵ Tobacco products liability suits in Mississippi halted after these decisions. In other states, where courts have adopted Section 402A, such as Oregon, the good-tobacco exemption has not proven to be a complete bar to tobacco product liability suits, and injured persons have won substantial lawsuits against tobacco companies.²²⁶

These states can be compared to Florida, where neither the legislature nor the courts adopted the good-tobacco exemption of 402A. Florida is home to the largest class-action lawsuit against tobacco companies for injuries incurred from tobacco use. A pediatrician, Dr. Howard Engle, represented the class in 1994, defined by “all [Florida] citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.”²²⁷ All members of the class could not quit smoking because of their addiction to nicotine. In 1999, the tobacco companies were found liable for damages to the class.²²⁸ In 2006, the Florida Supreme Court, after certifying the class early in the proceedings, decertified it, and applied the finding of tobacco industry liability to all suits originating out of the class leaving only the issue of damages to be litigated in each suit.²²⁹ As of 2011, there was the possibility of over 9500 lawsuits stemming from the Engle class and relying on the liability verdict.²³⁰ From February 2009 to March 2012, there were sixty verdicts in these Engle Progeny cases, with forty-one resulting in verdicts for the plaintiffs (with only one such verdict overturned on appeal), sometimes with substantial monetary damages.²³¹ Without the restrictions of Section 402A, and specifically the good-tobacco exemption, plaintiffs in tobacco product liability suits have a chance of winning in substantial enough numbers to impact the industry. Florida is the nightmare situation that the industry successfully avoided for decades with the implementation of Section 402A.

V. AMENDING CONFLICT OF INTEREST POLICIES

A. THE ALI CONFLICT OF INTEREST POLICY

The ALI essentially functions as a quasi-legislative body, so it is not surprising that the tobacco industry lobbied the ALI to influence its decision-making. In contrast to the lobbying of true legislative bodies, including Congress and many state legislatures, there is no requirement that either the ALI or organizations that lobby the ALI disclose or regulate such lobbying activities, making it easy for these activities to remain hidden—even though these actions may have widespread effects on legislative and judicial decisions. Parties trying to protect their special interests may attempt to exert influence over the ALI. To restrict this, the ALI could institute a strict conflict of interest and public disclosure policy, which would prevent secret meetings with private interests.

The ALI created its first policy on conflicts of interest for Reporters, Directors, Advisors, and members of the MCG in July 1994,²³² created additional policies for Council and Board members in October 2009,²³³ and slightly updated the original 1994 policy in 2010.²³⁴ The ALI instituted the first policy two years into Henderson’s and Twerski’s tenures as Reporters and Schwartz’s appointment as Advisor, and four years before publication of the Third Restatement. Both editions of the ALI Policy on Conflicts of Interest for Reporters state that “[t]he Institute’s reputation for objectivity is one of its most valuable assets …. The Institute’s reputation will suffer if an accusation is made with any colorable basis that Institute texts were shaped to aid the interests of the Institute’s Director or Reporters.”²³⁵ However, even if the ALI conflict of interest policy in place as of 2010 had been in place since 1963, it would not have prevented industry access to working Reporters through closed-door meetings, appointments of Reporters and Advisors with long-term industry ties who fail to disclose issues of possible bias, or continuing industry relationships by Advisors and members of the MCG that are not disclosed to the ALI general membership, the public, or public policy makers who rely on the ALI’s recommendations when making legislative or judicial decisions.

The 2010 ALI conflict of interest policy states that “[a] risk or appearance of a conflict of interest arises when formulation of text, Comment, or Illustration could advance a position taken by the Director or Reporter in another engagement on an issue within the scope of a pending Institute project.”²³⁶ According to the ALI, conflicts of interest are most likely to arise from “engagements that involve legal advice, opinions, expert testimony, or participation in briefing, argument, or the development of legal strategy.”²³⁷

In the ALI’s 1994 policy and subsequent 2010 update, the ALI requires a potential Reporter to provide the Director with a memorandum “identifying and explaining previous, existing, and contemplated engagements that may cause conflict, or its appearance, with the work proposed to be undertaken for the Institute”²³⁸ “[b]efore accepting assignment as a Reporter.”²³⁹ The memorandum does not follow any specified format. Further disclosure is left to the sole discretion of the Reporter. All the ALI requires is that if the Reporter is offered another position during his work as Reporter, and “[i]f the Reporter concludes that a conflict or its appearance may result, the Reporter should provide a memorandum to the Director explaining the conflict or appearance of conflict.”²⁴⁰

Directors are to follow these same procedures, reporting to the President.²⁴¹ The ALI applies the conflict of interest reporting rules only to the Reporters and ALI Directors.²⁴² As of May 2011, there were no conflict of interest reporting rules for Advisors or the Members Consultative Group. As of October 2009, annual disclosures of gifts, favors, and substantial financial interests were required of officers and members of the Council, Audit, and Investment Committees,²⁴³ but not by Reporters, Advisors, or members of the MCG.

Since the implementation of its first conflict of interest policy in 1994, the ALI vests complete control over review of and decisions concerning Reporters’ possible conflicts of interest in one individual: the Director.²⁴⁴ The ALI policy states that once a Reporter submits his memorandum on possible conflicts of interest to the Director, the prospective Reporter and the Director “should discuss possible solutions.”²⁴⁵ Upon submission of a memo explaining Reporters’ possible conflicts of interest with new client engagements taken during his time as Reporter, it is solely in the Director’s judgment as to whether a conflict is likely and if a solution is possible.²⁴⁶ Only if the Director decides that there is a strong likelihood of such a conflict and no satisfactory solution is apparent, should the Reporter “decline or withdraw from the engagement.”²⁴⁷ If a Reporter is working in a team, a Reporter with a potential conflict of interest should discuss with the Director whether the Reporter can withdraw from drafting and consideration of a particular issue, leaving the remainder of work to be completed by the co-Reporter, and if that is not feasible, “the Director shall take other suitable measures to protect the integrity of the project.”²⁴⁸ There are no stated procedures for the Director to follow in deciding whether a conflict exists nor stated measures to take in rectifying the problem.

The 2010 ALI policy update added some requirements for disclosure to the ALI membership and the general public. The “Reporter should make a statement about any engagements on issues within the scope of a project draft presented at an annual meeting or a Council meeting where the project draft is considered.”²⁴⁹

The detail required in the statement is limited in scope and “may depend on the circumstances of the Reporter’s engagement and whether specific issues in the draft may be perceived as being influenced by the Reporter’s engagement.”²⁵⁰ It is not clear who judges the extent of disclosure required, or which engagements would be perceived as within the scope of the project. Limited disclosure to the public began in 2010, when the ALI adopted the policy stating that it would

include in all drafts and the official text[s] … a statement that: (a) the project’s Reporter(s) may have been involved in other engagements on issues within the scope of the project; (b) all Reporters are asked to disclose any conflicts of interest, or their appearance, in accord with [ALI policy]; and (c) copies of Reporters’ written disclosures are available from the Institute upon request; however, only disclosures provided after July 1, 2010, will be made available and, for confidentiality reasons, parts of the disclosures may be redacted or withheld.²⁵¹

Since 1994, the ALI has required that Advisors and members of the Members Consultative Group should “perform their responsibilities with the objectivity expected of legal scholars [and so] must exercise sensitivity to the risk and appearance of conflict of interest in their work for the Institute.”²⁵² No reporting is required of Advisors or the Members Consultative Group; instead, the ALI rules, in place since 1994, state that these individuals should follow Rule 6.4 of the American Bar Association’s Model Rules of Professional Conduct:

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.²⁵³

The ALI policy does not state to whom or in what form such a report should be made.²⁵⁴ However, this rule was in place during the latter stages of the development of the Third Restatement, and does not seem to have affected the Third Restatement’s development.

B. COMPARABLE INSTITUTIONS: THE NATIONAL ACADEMIES

In form and function, the ALI is similar to the National Academies (an organization which consists of the National Academy of Sciences (“NAS”), the National Academy of Engineering, the Institute of Medicine (“IOM”), and the National Research Council)—elite self-selected professional organizations whose purpose is to provide scholarly advice to policy makers. Originally chartered by Congress in 1863 as the National Academy of Science, the National Academies describe their role as “produc[ing] groundbreaking reports that have helped shape sound policies, inform public opinion, and advance the pursuit of science, engineering, and medicine.”²⁵⁵ Like the ALI’s reports, the National Academies’ reports cover a wide variety of topics—from food and nutrition, to security issues, to space and aeronautics.²⁵⁶ The National Academies describe their reports as influential because, “[o]ver many decades, the National Academy of Sciences, National Academy of Engineering, Institute of Medicine, and National Research Council have earned a solid reputation as the nation’s premier source of independent, expert advice on scientific, engineering, and medical issues.”²⁵⁷

To maintain this independence, the National Academies follow and recommend strict conflict of interest policies to prevent the appearance of, as well as actual, conflicts of interest. These detailed conflict of interest rules (Table 6) are designed to be “objective and prophylactic” to prevent questions of objectivity from arising and to ensure that the process of research and writing reports is fairly balanced to protect “the individual [researcher], the other members of the committee, the institution, and the public interest.”²⁵⁸ The National Academies define “conflict of interest” as “any financial or other interest which conflicts with the service of the individual because it (1) could significantly impair the individual’s objectivity or (2) could create an unfair competitive advantage for any person or organization.”²⁵⁹

Table 6. Comparison of Conflict of Interest Policies.

	National Academy of Sciences*	Institute of Medicine**	American Law Institute***
Policy applies equally to all members of committee/reviewing groupA	Yes	Yes	No
Required disclosure of conflicts of interest of spouses and close relations	Yes	Yes	No
Disclosure of information concerning specific relationshipsB	Yes	Yes	No
Annual disclosures of conflicts of interestC	No	Yes	No
Additional disclosures required any time changes in information occursD	Yes	Yes	No
Responsibility for decisions regarding conflicts of interest	General Counsel & Executive officer	Committee	Director
Policy states that the institution will make best efforts to ensure that no individual appointed to a committee has a conflict of interestE	Yes	Yes	No

^*See Federal Advisory Committee Act, 5 U.S.C. app. 2 § 15 (2006); see also Nat’L Acads., supra note 259.

^**See Inst. of Med., Conflict of Interest in Medical Research, Education, And Practice (Bernard Lo & Marilyn J. Field eds., 2009).

^***See Policy Statement 1994, supra note 232, at 61–63; see also Policy Statement 2010, supra note 234.

^AThe ALI’s policy on disclosure of conflicts of interest applies only to Reporters. Advisors and MCG members follow American Bar Association Model Rule of Professional Conduct 6.4, which only requires disclosure of interests of a client who may be materially benefitted by a decision in which the Advisor or MCG member participates.

^BWhile the NAS uses a detailed questionnaire requesting information about specific types of conflicts of interest, and the ioM recommends that requests for disclosure are sufficiently specific to allow others to assess the severity of the conflicts, the ALI leaves the identification of conflicts to the Reporter, requesting only that the Reporter deliver a memorandum explaining previous existing and contemplated engagements that may cause conflict, or its appearance, with the work proposed to be undertaken by the institute.

^CThe NAS requires disclosures whenever the disclosed information changes, but not annually. The IOM suggests that disclosures occur annually.

^DThe ALI asks Reporters to provide an explanatory memorandum to the Director if the Reporter is offered another engagement during the pendency of a project and if the Reporter decides that a conflict or the appearance of a conflict may result.

^EThe ALI states that where, in the Director’s judgment, the likelihood of conflict or its appearance is high and a satisfactory solution is not apparent, the Reporter should decline or withdraw from the engagement.

All members of NAS committees must fill out conflict of interest forms that ask for specific information about their financial interests and organizational affiliations upon appointment to a committee, and members must also update these forms whenever any of their financial interests or organizational affiliations change.²⁶⁰

Section 15 of the Federal Advisory Committee Act (“FACA”), which regulates the formation of NAS committees, provides extra safeguards to protect against experts with conflicts of interest serving on committees, stating that the NAS must make “its best efforts to ensure that … no individual appointed to serve on the committee has a conflict of interest that is relevant to the functions to be performed, unless such conflict is promptly and publicly disclosed and the Academy determines that the conflict is unavoidable.”²⁶¹ The FACA also attempts to ensure that committees do not meet privately with outside individuals. Committee meetings held to gather information from outside individuals, and all written material presented to the committee by such individuals, must be open and available to the public.²⁶²

The NAS also recognizes that issues of committee-member bias toward one particular viewpoint can rise to the level of conflict of interest. The National Academies defines bias, or a lack of objectivity, as arising from the “close identification or association of an individual with a particular point of view or the positions or perspectives of a particular group.”²⁶³ In situations where “[a]n individual may have become committed to a fixed position on a particular issue through public statements …, through publications …, through close identification or association with the positions or perspectives of a particular group, or through other personal or professional activities,”²⁶⁴ there may be bias but not a conflict of interest. However, when a committee member has a duty related to his or her statements, then the bias may rise to the level of a conflict of interest.²⁶⁵ Such conflicts of interest arising from bias may prevent individuals from serving on committees.

The IOM published a report in 2009 suggesting management plans for dealing with conflict of interest issues that could arise in the creation of clinical practice guidelines.²⁶⁶ Clinical practice guidelines are “systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances.”²⁶⁷

These clinical practice guidelines are to the medical world what the Restatements are to the legal world because they are meant to be independent scholarly assessments of the state of medical knowledge, and to heavily influence physicians’ decisions about health care, insurance companies’ decisions about coverage, and performance assessments of physicians and medical care institutions. These guidelines are created by committees of highly trained, well-respected medical researchers and practitioners and are based on formal evaluations of valid scientific evidence and systematic reviews of research studies.²⁶⁸ Panels of expert healthcare practitioners review drafts of these guidelines and issue final revisions. This process is similar to the ALI’s process of creating the Restatements: experts create the guidelines as the Reporters create the Restatements, then a group of experts review and suggest changes to the guidelines, like the Advisors and the MCG members do for the Restatements.

The IOM recommended that, at a bare minimum, guideline developers provide systematic disclosure of the “nature, scope, duration, and monetary value of [financial] relationships” pertinent to the subject matter of the report to prevent undue industry influence so that the guidelines can be viewed as “objective and trustworthy.”²⁶⁹ The IOM recommended that such full disclosures be made annually both to a reviewing body and the general public.²⁷⁰ The policy requiring such disclosure should be sufficiently specific, using standardized content, format, and procedures for disclosure, and should cover all individuals with discretion in the development of clinical practice guidelines.²⁷¹

The IOM also recommended that organizations that develop practice guidelines create a committee to review and manage possible conflicts of interest utilizing a wide range of remedial measures, including prohibiting or restricting the individual’s participation, providing additional disclosure, or eliminating the existing financial relationship.²⁷² Such committees should follow clear and publicized methods for reviewing possible conflicts of interest so that the process is not so vague as to be useless, and because informal procedures increase the opportunity for undue influence.

For groups creating clinical practice guidelines, the IOM recommended that the groups exclude members with conflicts of interest altogether.²⁷³ If members with the needed expertise and without conflicts of interest cannot be found, the IOM recommended that guideline developers “publicly document that they made a good-faith effort to find experts without conflicts of interest by issuing a public call for members and other recruitment measures,”²⁷⁴ and that those with conflicts of interest be restricted to a minority on the panels and be excluded from voting, deliberating, drafting specific sections, or chairing the panel.²⁷⁵

C. MEDICAL JOURNAL POLICIES

Medical journals are another source of conflict of interest policies. When papers are submitted for publication, many medical journals require disclosure of any conflicts of interest with the research, which are often published along with the article.

The International Committee of Medical Journal Editors created a standard “Form for Disclosure of Potential Conflicts of Interest,” which many medical journals have integrated into their own guidelines (Table 7). The form is clear, includes explanations to clarify what information should be included, and applies to all authors.²⁷⁶

Table 7. Information Requested by the International Committee of Medical Journal Editors: “Form for Disclosure of Potential Conflicts of Interest”.

Resources Received To Help Complete Work Submitted	Grants, Consulting Fees/Honorariums, Support for Travel, Fees for Participation in Review Activities, Payment for Writing or Reviewing the Manuscript, Provision of Writing Assistance, Equipment, or Administrative Support
Financial Relationships That Could Be Perceived To Influence, or Give Appearance of Influencing, Submitted Work*	Board Membership, Consultancy, Employment, Expert Testimony, Grants, Payment for Lectures, Payment for Manuscript Preparation, Payment for Development of Educational Presentations, Stock/Stock Options, Travel Accommodations/ Meeting Expenses, Other (err on side of full disclosure)
Other Relationships That Readers Could Perceive as Having Influenced, or Give Appearance of Influencing, Submitted Work	Either (1) there are no other relationships/conditions/circumstances that present a potential conflict of interest, or (2) the following relationships/conditions/circumstances are present (space provided to explain)

^*ICMJE requests that authors “[r]eport all sources of revenue paid … directly to you or your institution on your behalf over the 36 months prior to submission of the work.” Some journals, such as The Lancet, require authors to submit such information for three years before the beginning of the work submitted.

Source: International Committee of Medical Journal Editors, ICMJE Form for Disclosure of Potential Conflicts of Interest, http://www.icmje.org/coi_disclosure.pdf.

D. COMPARISON OF THE ALI WITH THE NAS AND IOM RECOMMENDED CONFLICT OF INTEREST POLICIES

Table 6 compares key elements of the ALI’s conflict of interest policies with those of the NAS and those recommended by the IOM for committees writing clinical practice guidelines. The ALI’s definition of conflict of interest is narrower than those of the other two exemplars. In particular, the ALI’s definition does not include possible conflicts that could arise if the project confers a benefit to an organization with which the Director or Reporter is not currently working, but which he worked with in the past or is likely to work with in the future.²⁷⁷ This conflict of interest definition does not reflect a concern for unfair advantages gained by outside persons or organizations or for impairment of the Reporter’s objectivity.²⁷⁸ The ALI should broaden its conflict of interest definition to more closely resemble that of the NAS so that the definition of conflict of interest is not limited to simply a concern for advancing the position taken in other work within the scope of the Restatement project, but instead protects a much more significant commodity—objectivity. In addition, like the medical journals, the ALI should require disclosure of relationships during the three years prior to the beginning of a Restatement project to capture any lingering relationships or loyalties the drafters may have.

As of 2009, the ALI policy stated that “[i]t is improper for a member to represent a client in Institute proceedings and such conduct constitutes good cause for termination of Institute membership.”²⁷⁹ This policy came too late to affect Schwartz’s 1993 bill to Philip Morris for time spent acting as an Advisor for the Restatement (Third) of Torts, which would have been in direct conflict with the ALI’s 2009 rule, but did not violate any rule at the time.²⁸⁰ As of 2011, however, ALI policy does not include relationships outside of the attorney-client relationship, and only considers representation of a client—not consulting outside an attorney-client situation or general advocacy for concepts that would benefit an interested party.

Unlike the NAS, the ALI does not have any policies that require a good-faith effort to appoint members without conflicts of interest to serve as Reporters, Advisors, or in the MCG, nor does it have any policies that prevent these individuals from having a decision-making role. With an elected membership of 3000 and a total membership of more than 4200,²⁸¹ representing only 0.35% of licensed American lawyers,²⁸² the ALI would seem to have access to an adequate pool of lawyers and legal scholars from which to choose to avoid relevant conflicts of interest. The ALI does not, however, have any such policies regarding the selection of unbiased Reporters, Advisors, or constituents of the MCG. Had such a policy been in place, Schwartz would likely not have been included as an Advisor on the Third Restatement because of his bias.²⁸³

The NAS uses consistent, explicit, and detailed forms for providing broad disclosures of possible conflicts of interest.²⁸⁴ The IOM recommends that requests for disclosures be sufficiently specific and comprehensive to allow others to assess the severity of the conflicts.²⁸⁵ The ALI only requests that the Reporter deliver a memorandum of anything that the Reporter views as a possible conflict.²⁸⁶ This procedure leaves too much room for interpretation at the hands of the person who may have a conflict of interest, and could leave the Director—the judge of potential conflicts—unaware of possible conflicts of interest.

The NAS requires updates of organizational affiliations and financial interests whenever such information changes,²⁸⁷ and the IOM recommends repeated, full annual disclosures.²⁸⁸ The ALI falls far short of such policies; it neither requires complete updates when something changes, nor routine annual disclosures.²⁸⁹ The ALI only calls for additional disclosure when the Reporter concludes that a conflict may result from taking another engagement during the pendency of the Restatement.²⁹⁰

The NAS applies their conflict of interest reporting rules equally to all members of the committee.²⁹¹ The ALI only requires reporting from the Reporter, and states that the Advisors and MCG members need only disclose when a client may be materially benefited by the ALI’s work.²⁹² Advisors and MCG members have direct access and influence over Reporters, and it is important that they are seen as part of the Committee that creates the Restatements—therefore, they should also be held to rigorous conflict of interest standards.

The IOM recommends that an independent committee review and monitor all conflicts of interest and make final decisions regarding a particular individual’s eligibility for participation in one of its projects.²⁹³ The ALI, however, rests all monitoring of reporting requirement compliance with one person—the Director. Absent full public disclosure, there is no way to know whether the Reporters are complying with broader reporting requirements because only one individual has access to that information.²⁹⁴

Nothing in current ALI policies would prevent closed-door meetings with special interest groups like the ones that occurred between Prosser and the Tobacco Institute. This obviously raises grave questions about the objectivity of one of the nation’s most important legal institutions. The NAS must follow the FACA guidelines²⁹⁵ and, as a similarly important and influential institution, the ALI should adopt a similar open-meeting policy. Such policies would at least provide the public and the ALI general membership with information about what lobbying guided the formation of the Restatements. Many details about the information and arguments that the Tobacco Institute’s Committee on Legal Affairs members presented in their meeting with Prosser are unavailable due to claims of privilege, and therefore it is only through the implementation of an open-disclosure policy that the public, and the legislators that serve them, will be able to understand what interests may or may not have influenced the formulation of the ALI’s widely respected and utilized statements of the law.

The tobacco industry was unable to win a continued exemption in the Third Restatement—not because of ALI’s diligence, but through the bad luck (from the tobacco industry’s perspective) of having an individual member suggest a change from the floor at the ALI Annual Meeting. Under the ALI’s current conflict of interest policies, many of the instances of influence over the Second and Third Restatements could occur again. If the policies recommended by NAS or IOM had been in place, Prosser would not have met secretly with the tobacco industry, and there is a good chance that Schwartz, and perhaps Twerski, would not have held their positions, which provided easy and comfortable tobacco industry access to the creation of the Restatements. Absent creation and enforcement of such policies, any private interest with adequate money can follow the tobacco industry’s model by building connections and loyalties with influential, or potentially influential, ALI members in order to shape ALI reports. In order for the ALI to claim objectivity,²⁹⁶ it must improve and enforce its conflict of interest policies. Until then, all ALI projects should be viewed with skepticism as possibly manipulated behind the scenes by private interests.

E. THE TOBACCO INDUSTRY’S EFFORT TO INFLUENCE THE ALI REFLECTS A BROADER PATTERN

The tobacco industry’s effort to influence the ALI in its standard-setting function is not unique. The tobacco industry understands the power and influence of scholarly groups and individuals, the standards such scholarly groups produce, and the importance of influencing those standards. The industry has used seemingly impartial “third parties,” beginning with physicians and scientists²⁹⁷ and followed by sociologists, economists, philosophers, journalists, and anthropologists,²⁹⁸ to advance tobacco industry arguments promoting the benefits and downplaying the health hazards of smoking through seemingly independent books and published papers.²⁹⁹ For example, the tobacco industry, working through an influential psychiatrist, prevented a diagnosis of “tobacco dependence” from being included in the American Psychiatric Association’s 1980 Diagnostic and Statistical Manual of Mental Disorders III,³⁰⁰ which defines diagnoses for psychiatric practice (and reimbursement). In the mid-1990s, using its lawyers and public relations firms, the tobacco industry prevented Medicare from adopting a diagnostic code to indicate that a medical problem was due to secondhand smoke exposure as part of billing for services. Such a diagnostic code would have facilitated research linking secondhand smoke and disease.³⁰¹ The tobacco industry also secured passage of the federal Data Quality Act in the late 1990s to make it easier for industries to challenge public health regulations.³⁰²

In 1992, the tobacco companies faced a threat when the U.S. Environmental Protection Agency (“EPA”) released its report declaring secondhand smoke a Class A carcinogen, and attributing 3000 lung cancer deaths a year, as well as over 150,000 cases of bronchitis or pneumonia in children annually, and aggravation of asthma.³⁰³ The industry tried unsuccessfully to stop the report, and then tried to change, or to at least slow it down, by urging the Bush Administration to impose new risk assessment standards for federal agencies; the new standard would affect the EPA and therefore change the conclusion of the report.³⁰⁴

Since the industry was unable to infiltrate the EPA and influence the actual report or prevent its publication, the industry enlisted journalists to write articles supporting tobacco industry positions, repeat messages from the industry’s public relations firms on secondhand smoke, and further question the validity of the EPA’s report.³⁰⁵ The industry used a public relations firm to form the nominally independent organization, The Advancement for Sound Science Coalition (“TASSC”), a nonprofit “coalition advocating the use of sound science in public policy decision making” as part of an effort to influence the scientific standards for reaching a “causal” conclusion (analogous to “proof beyond a reasonable doubt”) about the health effects of environmental toxins, including secondhand smoke.³⁰⁶ In order to broaden the influence of TASSC and to distract people from the true purpose of the coalition, the law firm Covington & Burling suggested that TASSC recruit representatives from the food, plastics, chemicals, and packaging industries into leadership positions.³⁰⁷ While initiated by the tobacco industry, other industries have adopted these strategies to create doubt about “junk science” and the need for “sound science” (as defined by industry interests).³⁰⁸

F. LIMITATION

While the information available in the Legacy Tobacco Documents Library provides important insights into how the tobacco industry, acting through its lawyers, shaped the Second and Third Restatements of Torts, some key documents remain withheld by the cigarette companies under privilege claims (Tables 2 and 4). The cigarette companies are required to make internal documents produced in discovery in smoking and health litigation publicly available through 2016 as a result of a 1998 Minnesota settlement³⁰⁹ and subsequent 1998 Master Settlement Agreement³¹⁰ between the major cigarette companies and attorneys general of forty states, in addition to the federal Racketeer Influenced and Corrupt Organizations Act ruling against the tobacco companies.³¹¹ Philip Morris withheld the documents in Tables 2 and 4 on the grounds that they were prepared in anticipation of litigation, but that is not the case. Most are meeting notes or memos concerning the writing and application of the Restatements or discussions of long-term policy goals, not documents prepared for use in litigation. Most important, the notes concerning the meeting of industry lawyers with Prosser shortly before the changes advantageous to the tobacco industry appear in the Second Restatement cannot be, by their very nature, confidential or privileged. Such communications with third parties (i.e., Prosser) cannot be privileged, since the presence of third parties destroys the confidentiality necessary for privilege to attach.³¹² If the public disclosure requirements in these settlements and ruling are to achieve their stated goals, there is a need for academic researchers to challenge such claims. Despite this limitation, however, the available materials document effective behind-the-scenes efforts by the cigarette companies to influence preparation of the Second Restatement, and points to serious conflicts of interest present during the preparation of the Third Restatement.

Table 2. Tobacco Industry Lawyers & Members of ALI, 1961⁸⁷.

Covington & Burling	Arnold & Porter	Shook, Hardy & Bacon	Liggett & Myers	Philip Morris
H. Thomas Austern	Thurman Arnold	David Ross Hardy	Francis H. Horan (general counsel)	Paul D. Smith (vice president and general counsel)
Dean G. Acheson
Edward Burling
W. Graham Claytor, Jr.
Hugh B. Cox
Gerhard A. Gesell
Daniel M. Gribbon
Don victor Harris, Jr.
James H. McGlothlin
John Lord O’Brian
John T. Sapienza

Table 4. Restatement (Third) Privileged Documents.

Title (Privilege Claim*)	Date	Author	Importance/Expected Contents
Memorandum … providing legal analysis of tort reform issues. (3A, 3B) http://legacy.library.ucsf.edu/tid/njmaaoo	Feb. 3, 1994	Keith Teel	This document is probably a privileged version of Teel’s (head of TRPC) memo of the same date. However, one of the several privileged copies may contain missing attachments including a prior memo on the Restatement and a timeline of approval of the Restatement.
Memorandum … summarizing and providing legal suggestions concerning tort reform proposals. (iB, 1C) http://legacy.library.ucsf.edu/tid/vlpaaaoo	Jan.12, 1995	GD Slaiman	This document follows an agenda for a Tort Reform Policy Committee meeting where the ALI’s Restatement (Third) of Torts was listed and may discuss interests and goals concerning the Restatement.
Memorandum … reflecting legal advice and proposed joint defense strategy concerning potential impact of proposed state or federal legislation and amendments to federal rules of civil procedure and amendments to the Third Restatement of Torts on smoking and health litigation. (3A, 3B) http://legacy.library.ucsf.edu/tid/phd32aoo; and http://legacy.library.ucsf.edu/tid/wqviaioo	Jan. 19, 1995	Keith Teel	This document is possibly an unredacted copy of Teel’s (head of TRPC) memo addressing the return of unfavorable language to the Third Restatement.
Memorandum … providing counsel’s analysis of proposed amendments to the Restatement of the Law of Torts and its affect (sic) on federal product liability legislation. (1C) http://legacy.library.ucsf.edu/tid/uwnaaaoo	May 4, 1995	victor Schwartz	Schwartz, Advisor to the Reporters, discusses the longer term effects of the Restatement on federal legislation, and may discuss past or future plans to change the Restatement.
Memorandum … providing counsel’s legal analysis of proposed amendments to the Restatement of the Law of Torts and strategic advice regarding the same. (1A) http://legacy.library.ucsf.edu/tid/twnaaaoo	May 9, 1995	victor Schwartz	Schwartz, an advisor to the Reporters, discusses past or future plans to change the Restatement.

1B: Attorney-Client Privilege; confidential communications between Philip Morris USA, Inc. counsel and its employees.

1C: Attorney-Client Privilege; confidential communications between Philip Morris USA, Inc. counsel.

3A: Joint Defense; legal advice prepared in anticipation of litigation concerning confidential communications between counsel with common legal interest.

3B: Joint Defense; legal advice prepared in anticipation of litigation concerning confidential communications between employees and counsel with common legal interest.

CONCLUSION

The ALI continues to create new legal treatises, restatements, and model laws that states and courts continue to adopt,³¹³ giving this private organization tremendous influence akin to a legislature or court.³¹⁴ Although heavily cited and trusted, some have argued that the ALI no longer restates the law, but that it instead reforms and rewrites the laws outside of the electoral process,³¹⁵ that the courts “have surrendered to the ALI [the courts’] inherent common law judicial power to state, restate, and reformulate the legal principles” in litigation,³¹⁶ and that the ALI’s procedures maintain the status quo and are easily influenced, or even hijacked, by special interests,³¹⁷ rather than serving the interest of the public at large. One special interest group—the tobacco industry—had easy access to, and quiet influence on, ALI Reporters, Advisors, and members of the MCG during the creation of both the Second and Third Restatements. The tobacco industry obtained direct access to Prosser, was able to sway the legal analysis used to create Section 402A, and changed the wording of the section to the tobacco companies’ benefit. Such actions occurred without disclosure to the ALI membership or to the legislatures or courts that adopted Section 402A. Affecting the Restatements allowed the tobacco industry to change the law in practically every state to its advantage without the need for lobbying or litigation.

State legislatures and courts need to recognize that adopting exemptions that provide, in effect, that tobacco products are not defective or unreasonably dangerous equates to unknowingly adopting viewpoints of the tobacco industry quietly created through the ALI, and therefore these policies should be reevaluated. Assuming that states relied on the ALI for a neutral interpretation of the law, any state that employs an exemption for tobacco products from liability under products liability law based on Section 402A should remove that exemption. Likewise, courts and legislatures should re-examine their acceptance of the “defective condition unreasonably dangerous” standard as it applies to tobacco and cigarettes. Because the ALI was so skillfully manipulated by the tobacco industry in its creation of the Second and Third Restatements, courts should stop applying the principles of the those Restatements to tobacco lawsuits to ensure a fair tribunal in which individuals can find redress for injuries caused by the tobacco industry.

The ALI needs to review not only the Restatements of Torts, but all of its Restatements and other publications for undue influence and conflicts of interest, and to implement policies that will give force to its claim as a reliable source of “scholarly work to clarify, modernize, and otherwise improve the law.”³¹⁸ The ALI has an obligation to its members, the legal profession, and the public to put unbiased analysis of the law first, carrying out unbiased research into the current state of the law and conducting a critical appraisal of that information, as well as serving as a role model for professional behavior within the legal community. The influence of the tobacco industry upon the Restatements of Torts suggests that all of the ALI’s projects carry the burden of questionable motivation and research and manipulation by interested parties. Until the ALI adopts and enforces meaningful, effective, and transparent conflict of interest policies, their work should not be taken without question as unbiased authoritative documents worthy of reliance by our courts and legislatures.

Table 1. Timeline of Tobacco Industry Efforts and the Evolution of Section 402A.

January 3, 1958	Preliminary Draft No. 6—First appearance of 402A.
November 1, 1960	Council Draft No. 8 with 402A. Only concerns food.
April 7, 1961	Tentative Draft No. 6.
May 17–20, 1961	ALI 38th Annual Meeting to discuss the Tentative Draft No. 6.
September 28, 1961	The Tobacco Institute’s Committee on Legal Affairs meets and discusses Draft No. 6.
September 28, 1961	The Committee on Legal Affairs writes memo on the potential impact on the tobacco industry of Draft No. 6.
December 6, 1961	The Committee on Legal Affairs meets to discuss proposed changes to the Restatement (Second) of Torts.
December 8, 1961	The Committee on Legal Affairs releases “Suggestions for Revision to Comment f.”
Week of December 7, 1961	Austern’s subcommittee meets with Dean Prosser to discuss proposed changes to “certain sections” of the Restatement.
March 1, 1962	ALI releases Council Draft No. 11, “good tobacco” exemption appears for first time.
April 16, 1962	Tentative Draft No. 7, published; “good tobacco” exemption remains; check marks next to unreasonably dangerous and defective definitions appear in Philip Morris copy of draft.
May 23–26, 1962	ALI 39th Annual Meeting to discuss Tentative Draft No. 7. Section 402A adopted without discussion of new “good tobacco” exemption.

Table 3. Restatement (Second) Privileged Documents.

Title (Privilege Claim*)	Date	Author	Importance/Expected Contents
Memorandum from Tobacco Institute Outside Litigation Counsel to Joint Defense Counsel Regarding Potential Impact on Tobacco Industry of Proposed Amendments to the Restatement (Second) of Torts. (3A, OWP, FWP) http://legacy.library.ucsf.edu/tid/lhq88d00	Sept. ??, 1961	Covington & Burling	This memorandum is early in their process of reviewing the Restatement. It may include early impressions and possibly lay out a detailed plan of action to change the Restatement.
Memorandum Prepared by Tobacco Institute Outside Counsel Requesting Industry Counsel’s Advice and Comments Regarding Proposed Section of the Restatement of Torts. (AC, WP, JD) http://legacy.library.ucsf.edu/tid/ogr41i00	Sept. ??, 1961	Covington & Burling	This may be another copy of the above memo, or it may be different, but again it is a discussion of the industry’s early impressions of the Second Restatement with advice on how to affect it.
Memorandum Prepared by Outside Counsel for the Tobacco Institute Regarding Issues To Be Discussed at September 28, 1961, Meeting of Counsel for American and Other Tobacco Companies Including the Restatement of Torts. (AC, WP, JD) http://legacy.library.ucsf.edu/tid/her41i00	Sept. 28, 1961	Covington & Burling	This memorandum was prepared for the committee meeting where they decided to form Austern’s subcommittee and so it may give more details as to what they expected to discuss about the Restatement.
Memorandum from outside Counsel for the Tobacco Institute to Industry Counsel Containing Tobacco Institute outside Counsel’s Comments and Thoughts Regarding Issues To Be Discussed at December 6, 1961, Meeting of Industry Counsel. (AC, WP, JD) http://legacy.library.ucsf.edu/tid/flq41i00	Nov. 27, 1961	Stanley Temko	Notes for the document mention the American Law Institute. Although notes for the December 6, 1961, committee meeting are privileged, the Restatement was discussed at the meeting and this document may provide more information regarding the conclusions of Austern’s subcommittee in advance of the meeting.
Minutes of Meeting of the Committee on Legal Affairs Concerning Potential Liability for Statements Made by Persons Purporting To Act for the Institute and Proposed Changes to Restatement of Torts. (1C, 3A, oWP) http://legacy.library.ucsf.edu/tid/lxq88d00	Dec. 6, 1961	JV Hewitt	Previous known meeting discussing the Restatement was three months prior. This meeting may have discussed progress made on suggested language and plan for moving forward.
Notes Prepared by American Tobacco’s Outside Counsel Containing Thoughts and Impressions of December 6, 1961, Meeting of Industry Counsel and Describing Industry Counsel’s Advice, Opinions, and Analysis Regarding Various Issues, Including the Restatement of Torts. (AC, WP, JD) http://legacy.library.ucsf.edu/tid/wsc41i00	Dec. 6, 1961	Cyril F. Hetsko	Like previous meetings, this meeting of the Committee on Legal Affairs discussed the Restatement and most likely strategies surrounding the Restatement.
Notes Prepared by American outside Counsel Describing Industry Counsel’s Thought Processes, Strategies and opinions Regarding Meeting of Industry Counsel on December 6, 1961, Involving Pending Health Litigation. (AC, WP, JD) http://legacy.library.ucsf.edu/tid/dmp41i00	Dec. 6, 1961	Cyril F. Hetsko	Additional information about this privileged document shows that they discussed Prosser in the notes about the Committee meeting. These notes probably discuss plans to talk with Prosser and steps moving forward with the Restatement.
Letter from Tobacco Institute Outside Litigation Counsel to Joint Defense In-House Counsel Memorializing Meeting of Sub- Committee with Dean Prosser To Discuss Proposed Changes to Certain Sections in the Restatement (Second) of Torts. (3A, OWP, FWP) http://legacy.library.ucsf.edu/tid/kxq88d00	Dec. 14, 1961	H. Thomas Austern	A key document, this letter probably details the conversation that the Subcommittee had with Prosser, reviewing what suggestions the Subcommittee made and their reasoning and how Prosser responded.
Communication from outside Counsel for the Tobacco Institute Containing outside Counsel’s Thoughts and Analysis Regarding December 13, 1961, Meeting with Dean William Prosser, the Reporter for the ALI on the Restatement (Second) Torts Section 402A Regarding Product Liability Issues. (AC, WP, JD) http://legacy.library.ucsf.edu/tid/yiq41i00	Dec. 14, 1961	H. Thomas Austern	This may or may not be another copy of the above document. It probably describes the meeting with Prosser and probably explains their thoughts about the meeting and steps forward.
Memorandum from outside Counsel for the Tobacco Institute Containing Thoughts, Analysis and Advice Regarding Draft Section 402A of the ALI’s Restatement of the Law, Second, Torts—Council Draft No. 11 Regarding Product Liability Issues. (AC, WP, JD) http://legacy.library.ucsf.edu/tid/jbq41i00	Mar. 14, 1962	JS Koch	This memo comes two weeks after the production of the Council Draft No. 11 intended for discussion at a meeting of the Council from March 15th through the 17 th in 1962 and which introduced the “good tobacco” exemption. This memo shows that the lawyers in the Committee on Legal Affairs received the Council Draft before the Council reviewed it even though none of them were members of the Council and should reveal what the committee thought of the new changes.
Letter from Joint Defense Counsel to Philip Morris Counsel and Joint Defense Counsel Regarding ALI Restatement on Torts. (3A, FWP) http://legacy.library.ucsf.edu/tid/dcs12a00	May 3, 1962	JS Koch	Dated after the release of Tentative Draft No. 7, this letter may discuss the tobacco industry’s new opinions about the Restatement and possibly reflect on the Committee’s successes.
Memorandum from outside Counsel for the Tobacco Institute Containing Comments and Analysis Regarding Tentative Draft No. 7 of the ALI’s Restatement of Law, Second, Torts Regarding Products Liability Issues. (AC, WP, JD) http://legacy.library.ucsf.edu/tid/feq41i00	May 3, 1962	JS Koch	This is likely another copy of the above document and should reveal the committee’s opinions about the Tentative Draft No. 7.
Communication from outside Counsel for the Tobacco Institute Containing Thoughts and Analysis Regarding Section 402A of the Restatement of Law, Second, Torts Regarding Products Liability. (AC, WP, JD) http://legacy.library.ucsf.edu/tid/ncw41i00	May 28, 1961	JS Koch	Dated after the 39th Annual ALI Meeting where Section 402A was accepted by the general membership.

1C: Attorney-Client Privilege; confidential communications between Philip Morris USA, Inc. counsel.

3A: Joint Defense; legal advice prepared in anticipation of litigation concerning confidential communications between counsel with common legal interest.

3B: Joint Defense; legal advice prepared in anticipation of litigation concerning confidential communications between employees and counsel with common legal interest.

OWP: Work Product; opinion work product containing counsel’s mental impressions, opinions, conclusions, or legal theories prepared in anticipation of litigation.

FWP: Work Product: fact work product containing facts obtained by counsel or at the request of counsel in anticipation of litigation.

AC: Attorney-Client; confidential communications exchanged between or among in-house or outside attorneys representing company and employees or consultants of the company for the purpose of seeking or rendering legal advice or providing confidential information in order to assist in the rendering of legal advice.

WP: Work Product; documents containing or reflecting analysis, summaries, mental impressions, conclusions, or opinion prepared in anticipation of or in connections with litigation.

JD: Joint Defense; work product documents or documents containing communications between in-house or outside attorneys for the company and entities with which it shared a common legal interest.

For full descriptions of the privileged document codes see Univ. of Cal., S.F., Privileged Document Codes, Legacy Tobacco Documents Libr., http://legacy.library.ucsf.edu/help/privcodes.jsp (last visited Aug. 20, 2012).

Figure 2. Editorial Mark on Tentative Draft No. 7¹¹³.

Table 5. States Using Language or Intent of Restatement (Second) of Torts Section 4o2a as of February 2011.

Use	State	Statute (West 2010)/Case
Specifically references Section 402A including Comment’s “good tobacco” exemption	Oregon	OR. REV. STAT. ANN. § 30.920 (West 2011)
	South Carolina	S.C. CODE ANN. §§ 15-73-10, -30 (2005)
	Texas	TEX. CIV. PRAC. & REM. CODE ANN. § 82.004 (West Supp. IV 2010)
Adopts the intent/language of Section 402A but does not explicitly adopt the “good tobacco” exemption	Arkansas	ARK. CODE ANN. § 16-116-102 (West Supp. I 2012)
	Illinois	735 ILL. COMP. STAT. ANN. 5/2-2106.5 (West 2003)
	Indiana	IND. CODE ANN. §§ 34-6-2-146, -20-2-1, -20-2-3 (West 2011)
	Iowa	IOWA CODE ANN. § 668.12 (West 1998)
	Kansas	Messer v. Amway Corp., 210 F. Supp. 2d 1217, 1232-33 (D. Kan. 2oo2).
	Kentucky	KY. REV. STAT. ANN. § 411.340 (West 2006)
	Maine	ME. REV. STAT. ANN. tit. 14, § 221 (2003)
	Michigan	MICH. COMP. LAWS ANN. § 600.2947 (West 2010)
	Minnesota	Russo v. NCS Pearson, Inc., 462 F. Supp. 2d 981, 996 (D. Minn. 2006)
	Missouri	MO. ANN. STAT. § 537.760 (West 2008)
	Nebraska	NEB. REV. STAT. ANN. §§ 25-21, -181 (2009)
	New Mexico	N.M. STAT. ANN. §§ 13-1406, -1407, -1419 (2011)
	North Dakota	N.D. CENT. CODE §§ 28-01.3-01, -01.3-05 (2006)
	South Dakota	S.D. CODIFIED LAWS § 20-9-9 (2004)
	Utah	UTAH CODE ANN. § 78B-6-702 (West 2008)
Adopts the intent/language of Section 402A but explicitly does not exempt tobacco	California	CAL. CIV. CODE § 1714.45 (West 2009)
Adopts the intent/language of “Defective Condition Unreasonably Dangerous” standard in combination with Restatement (Third) Torts principles	Mississippi	MISS. CODE ANN. § 11-1-63 (West 2008)
	Montana	MONT. CODE ANN. § 27-1-719 (2009)
	New Jersey	N.J. REV. STAT. § 2A:58C-3 (2000)
	Oklahoma	OKLA. STAT. ANN. tit. 76, § 57 (West 2002)
	Tennessee	TENN. CODE ANN. § 29-28-105 (West 2002)