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Home Politics Gladys Kessler, federal judge in landmark tobacco lawsuit, dies at 85

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


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.

Judge Kessler, a former public-interest 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 Judge 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, Judge 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 Judge 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.”

Judge 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 Judge Kessler deplored as “odious to a democratic society.”

Dilemmas involving detainees at Guantánamo continued in the Obama administration, and in 2014 Judge 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, Judge Kessler upheld the 2010 Affordable Care Act, a centerpiece of the Obama administration’s domestic agenda. Earlier in judicial career, she had specialized in family law and, as a lawyer, represented women in domestic violence and discrimination cases.

“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.”

Gladys Kessler was born in New York City on Jan. 22, 1938. Her mother died when she was very young, and Judge Kessler was raised by her father, a dentist, and her stepmother, a homemaker.

Judge Kessler said in an interview with the American Bar Association that she knew from a young age that she “wasn’t fit for certain jobs that women were expected to take like teaching, secretarial work.”

As an aspiring professional woman, she said, she had no models. “I didn’t know any women who worked outside the home,” she said. “Everybody was a homemaker.”

Judge Kessler enrolled at Cornell University in Ithaca, N.Y., where, without telling her father, she loaded up on courses in order to graduate early and save money for law school. After receiving her undergraduate degree in 1959, she graduated from Harvard Law School in 1962.

When she began applying for jobs, she confronted what she described as “overt gender discrimination.”

“One law firm partner told me that he would hire me,” she recounted to the ABA, “but his partners would never stand for it.”

She ultimately was hired as an appellate lawyer for the National Labor Relations Board before spending several years as a legislative assistant on Capitol Hill. She later worked in private practice in Washington, handling public-interest matters including discrimination cases, tenant-landlord disputes and consumer lawsuits.

Judge Kessler was a founder of the Women’s Legal Defense Fund and the National Association of Women Judges. She took senior status on the federal court in 2007.

Judge Kessler was a Washington resident. Her husband of 43 years, Arthur Mackwell, died in 2013.

Survivors include five stepchildren, Steven T. Mackwell of Hawley, Pa., Sharon A. Mackwell of Georgetown, Del., Sally Mackwell Bauer of Kimberton, Pa., Arthur D. Mackwell of St. Petersburg, Fla., and Clark S. Mackwell of Sarasota, Fla.; five grandchildren; five great-grandchildren; and a great-great granddaughter.

The tobacco case is set to conclude later this year, nearly a quarter-century after it began, when, by court order, cigarette companies will begin displaying in retail stores signs about the dangers of cigarette smoking. One of them reads: “Smoking kills, on average, 1,200 Americans. Every day.”