"I didn't know the gap between science and the law was this wide."
Right after losing again in the appellate trial of a damages suit worth 50 billion won that the National Health Insurance Service filed against tobacco companies, Chair Jeong Ki-seok said this. Decades have passed since the medical community identified tobacco as the main culprit of lung cancer, but the court's judgment did not change this time either.
While the Seoul High Court acknowledged the statistical link between smoking and lung cancer, it said the proof was insufficient to hold tobacco companies legally liable. In the United States, tobacco companies paid as much as 300 trillion won in compensation and settled before even going to trial, but in Korea "0 won" rulings keep being handed down.
◇ Court: "Statistical correlation alone does not prove individual causation"
The Seoul High Court's Civil Division 6-1 on the 15th upheld a lower court ruling against the plaintiff in an appeal filed by the National Health Insurance Service seeking damages from KT&G, Philip Morris Korea, and BAT Korea.
The issue was the causal relationship between smoking and the onset of lung cancer. The National Health Insurance Service cited epidemiological studies showing that smokers' relative risk of developing lung cancer is up to dozens of times higher than that of nonsmokers. The bench did not deny the existence of an "epidemiological causal relationship" between smoking and lung cancer.
However, the court found that "epidemiological study results alone cannot conclude that a particular individual's lung cancer was caused by smoking." It said statistics only describe trends in populations and do not directly prove the cause of disease in an individual.
The bench cited Supreme Court precedent that various factors, including an individual's duration of smoking, preexisting health, lifestyle, and family history, must be considered comprehensively. It added that although there is room to examine individual causation given that the subjects smoked for more than 30 years, the tobacco companies' unlawful conduct must first be proven.
The National Health Insurance Service argued that tobacco companies intentionally concealed, downplayed, or distorted the risks and addictiveness of tobacco. It also claimed that not reducing nicotine levels, using additives, and introducing ventilated filters constituted design defects.
But the bench did not accept these arguments. It found no medical basis to view low-nicotine or additive-free cigarettes as safer, and said it is difficult to generalize that ventilated filters are more harmful than regular filters. It also said the companies could not be deemed to have intentionally hidden the risks or provided false information.
Results were the same in lawsuits brought by individuals against tobacco companies. The first tobacco suit in Korea was filed in 1999. In 2014, the Supreme Court acknowledged the link between smoking and lung cancer but found it difficult to conclude that an individual's cancer was caused by smoking. All similar suits filed since have reached the same conclusion.
◇ Why the United States was different: shifts driven by whistleblowing and laws
The United States did not win tobacco lawsuits from the start. Litigation had continued since the 1950s, but losses mounted due to a lack of scientific evidence and strong lobbying by tobacco companies.
The turning point came in 1994. With the disclosure of internal tobacco company documents, it emerged that corporations had been aware of tobacco's addictiveness and harmfulness and had systematically concealed it. Afterward, 46 State Governments filed suit, and tobacco companies agreed to pay a total of $206 billion (about 300 trillion won) in medical costs.
The decisive basis for U.S. courts' recognition of liability was not the "danger of smoking" itself, but the unlawful acts of corporations that hid it despite knowing about it.
In Quebec, Canada, based on the 1988 Tobacco-Related Damages and Healthcare Costs Recovery Act, about 1.1 million people who were diagnosed with lung or throat cancer after smoking for more than 12 years filed damages suits against three tobacco companies.
Courts ruled for the patients at trial in 2015 and on appeal in 2019, and also approved a settlement of about 33 trillion won, including the State Government's healthcare cost recovery suit. The court found that the tobacco companies violated four Quebec laws, including breach of the duty to warn, consumer deception, and infringement of the right to life and physical safety.
Korean courts also do not deny the medical consensus that smoking is a major cause of lung cancer. However, they maintain that statistical plausibility and legal causation in individual cases are separate.
An attorney said, "In the end, the winning point in Korean tobacco litigation lies not in 'statistics' but in the 'proof' the court requires," adding, "Unless direct evidence emerges that a tobacco company deceived people while knowing the risks, it will be hard for the courts' view to change."