Philip Morris is a victim. At least, that is what the company, in Philip Morris USA Inc. v. Williams, asked the U.S. Supreme Court to believe when it heard arguments in the case on Dec. 3, 2008.

The case is on its third trip to the Supreme Court. Last time there, the court found that the Oregon Supreme Court was in violation of due process when it upheld a jury instruction allowing punitive damages for harm that befell nonparties as a result of the defendant’s misconduct. Upon return to Oregon, however, the state Supreme Court found that Philip Morris had not properly requested a jury instruction on that issue in the first place and had not timely preserved its objection. Philip Morris returned to the U.S. Supreme Court, asking that it order Oregon to start the trial over from scratch some nine years after the original trial.

In seeking to be excused from compliance with established Oregon jury instruction law, Philip Morris has co-opted a tactic that is usually the last resort of a pro se litigant, litigating blindly in a system with which it has no experience, and for which it lacks adequate resources to compete with a sophisticated adversary.

Just another delaying tactic

But Philip Morris is a seasoned and sophisticated litigant. After years of skilled and savvy litigation in both the Oregon system and the U.S. Supreme Court, Philip Morris has invoked ignorance of the law as an excuse for a completely new trial. In fact, Philip Morris has an active legal history of exploiting litigation cost and delay as a bludgeon to punish and deter plaintiffs in smokers’ actions like this one. The history of tobacco litigation demonstrates the aggressive use of every available delaying tactic, and the investment of vast resources, by Philip Morris and its fellow cigarette manufacturers in a relentless, and devastatingly successful, strategy of attrition.

Litigation against the tobacco industry began in 1954. The industry faced a collective crisis — a great cancer scare — that threatened its existence. Together, the tobacco companies, including Philip Morris, fought back with a campaign of deceit and deception. Part of that campaign was the early decision — reaffirmed over decades — to wage a war of attrition in courtrooms around the nation, abusing the legal process and concealing evidence.

Year after year, individual smokers sued tobacco companies. The industry beat them back with aggressive, no-money-spared litigation. For decades, the industry paid not one penny by way of judgment or settlement. As R.J. Reynolds’ general counsel put it in a 1988 memo, “[t]he aggressive posture we have taken . . . continues to make these cases extremely burdensome and expensive . . . .To paraphrase General Patton, the way we won these cases was not by spending all of Reynolds’ money, but by making that other son of a bitch spend all his.”

In August 2006, the district court in the Department of Justice tobacco case found that the tobacco companies “violated and continue to violate” the Racketeer Influenced and Corrupt Organizations Act. The court found “overwhelming evidence” that, “over the course of more than 50 years, Defendants . . . deceived the American public . . . they abused the legal system in order to achieve their goal — to make money with little, if any, regard for individual illness and suffering, soaring health costs, or the integrity of the legal system.”

At the trial of Mayola Williams’ case for the wrongful death of her husband from years of tobacco addiction, Philip Morris gambled — and lost — on a proffered jury instruction that materially misstated Oregon statutory law. When its requested jury instruction was rejected, it failed to submit a correct one.

Philip Morris has now asked the U.S. Supreme Court, years after the trial, to intervene on its behalf and order Oregon to expend its fiscal and judicial resources on a new trial. Such extraordinary “relief” would not only reward Philip Morris but punish the plaintiff, an elderly widow who followed Oregon’s trial rules and met her burden of proof, by requiring her to spend more money, and abide additional years, on a new trial.

Sometimes, due to surprise or novelty at trial, due process may provide unsophisticated or impoverished litigants a second chance at recasting their litigation strategy. We all benefit from such triumphs of due process over hypertechnicality. But Philip Morris is no Clarence Earl Gideon, and its trumpet blows off-key. Gideon had no counsel and no defense strategy. Philip Morris had excellent trial counsel. Now Philip Morris seeks from the Supreme Court that which the Oregon court correctly denied: a reward for being too clever by half.

The U.S. Supreme Court’s entry into the traditional states’ province of punitive damages was not intended, and should not be stretched beyond its bounds, to serve as yet another instrument of attrition, or to accord well-heeled litigants as many appellate and trial opportunities as they can afford, to the ultimate prejudice of their adversaries, by honoring untimely requests for exemption from long-established state rules.

Elizabeth J. Cabraser is a partner at San Francisco-based Lieff Cabraser Heimann & Bernstein. She submitted an amicus brief in the Williams case on behalf of Public Justice P.C. and six other groups.