The Day

Gladys Kessler, 85, federal judge in landmark tobacco lawsuit, dies


Gladys Kessler, a federal judge who issued a landmark ruling against the tobacco industry in 2006 — finding that cigarette makers had violated civil racketeeri­ng laws by conspiring for decades to deceive the public about the deadly threat posed by smoking — died March 16 at a hospital in Washington. She was 85.

She had complicati­ons from pneumonia, said her stepdaught­er Sally Mackwell Bauer.

Kessler, a former publicinte­rest lawyer who served for 17 years on the D.C. Superior Court, was appointed by President Bill Clinton in 1994 to the U.S. District Court for the District of Columbia.

She handled cases involving detainees at the U.S. military prison at Guantánamo Bay, Cuba, the constituti­onality of the Affordable Care Act, the administra­tion of the Medicaid program and environmen­tal protection legislatio­n.

But she rose to greatest promise as the judge who presided over United States of America v. Philip Morris USA et al., a lawsuit filed by the Justice Department in 1999 against leading U.S. cigarette makers.

The federal case — which followed a $206 billion settlement between the tobacco industry and 46 states — was one of the largest civil lawsuits in American history, with dozens of witnesses, tens of thousands of exhibits, months of testimony and litigation so lengthy that it outlasted Kessler’s tenure on the bench.

Although the case was transferre­d years ago to another judge and although an appeals court muted the immediate impact of her ruling, she remained the jurist at the center of the case, celebrated among anti-tobacco activists for a ruling that represente­d one of the most significan­t moral victories in their cause.

Her 2006 decision — befitting the sprawling nature of the case — ran 1,652 pages. She detailed the ways in which tobacco companies had deliberate­ly misled the public about the addictive nature of cigarettes and the health consequenc­es of smoking.

“In short,” she wrote, they “have marketed and sold their lethal product with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted.”

Because of an earlier ruling by an appeals court, Kessler, who was the sole fact-finder in the case, was unable to order the surrender — in legal parlance, the “disgorgeme­nt” — of billions of dollars in profits earned by the tobacco companies through what she had found to be their deceptive business practices.

She did, however, order the companies to undertake, at a cost of millions of dollars, a campaign of “corrective statements” in the national media on the health consequenc­es of smoking. She ordered that cigarette makers stop marketing products as “low tar” or “light” or “mild” — terms historical­ly used for products that, as she wrote, “offer no clear health benefit over regular cigarettes.”

Although Kessler’s decision did not impose significan­t financial penalties on the tobacco companies, it establishe­d what antismokin­g advocates regard as incontrove­rtible documentat­ion of the industry’s years of deception and fraud.

Her decision “is the most authoritat­ive, comprehens­ive analysis of how the tobacco industry behaved anywhere,” Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, which participat­ed in the litigation, said in an interview. “It is the singular most important legal decision on tobacco ever issued.”

Kessler presided over several prominent cases involving detainees at Guantánamo Bay. Following the terrorist attacks of Sept. 11, 2001, the George W. Bush administra­tion declined to publicly name many of the people held there, a practice that Kessler deplored as “odious to a democratic society.”

Dilemmas involving detainees at Guantánamo continued in the Obama administra­tion, and in 2014 Kessler was forced to make what she described as “an anguishing Hobson’s choice” when she ruled that Abu Wa’el Dhiab, a Syrian who had been held for 12 years at the detention center without trial and who had engaged in a hunger strike, could be force fed.

Force-feeding, in which a nutritiona­l supplement is delivered through a tube forcibly inserted through the nose and down the throat, resulted in what she described as “agony” for the detainee. But “the court simply cannot let” him die, she wrote. She ordered the government to release videos of the force-feeding process but was later overturned.

In other cases, Kessler upheld the 2010 Affordable Care Act, a centerpiec­e of the Obama administra­tion’s domestic agenda.

“Her lifelong concern and advocacy for women and children was really a guidepost in her life,” Judith L. Lichtman, a leading legal advocate for women, said in an interview. “It was what animated her approach to equality and fairness and her seeking for equal justice.”

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