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Family loses tobacco lawsuit 

A jury returned a defendant's verdict yesterday afternoon in a wrongful death and product liability case brought against Philip Morris Inc. by the family of a Douglas man who died of lung cancer in 2000, after decades of smoking.

After hearing nearly three weeks worth of evidence and deliberating over portions of three days, a Worcester Superior Court jury found that the Marlboro cigarettes Stephen C. Haglund of Douglas smoked before his death at age 51 were not defectively designed and unreasonably dangerous, as Mr. Haglund's family alleged in their civil lawsuit against the tobacco company.

The plaintiffs alleged that when Mr. Haglund began smoking in the 1970s, Philip Morris could have employed technology that extracted addictive nicotine from cigarettes and provided a safer alternative to their product.

In his opening statement in the case, Paul F. Ware Jr., a lawyer for Philip Morris, said the technology, known as solvent extraction, did not remove all nicotine from cigarettes, and more importantly, did not remove any of the carcinogens. . . .

"We think there are appellate issues that are going to be reviewed, and there will be more to come," said Michael D. Weisman, one of the Haglunds' lawyers.

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Douglas man's survivors lose case against cigarette maker 

Cigarettes defective, family says in death lawsuit 

Lawyers for both sides made opening statements to the jury yesterday in a wrongful death and product liability case brought against Philip Morris Inc. by the family of a Douglas man who died of lung cancer in 2000, after years of smoking Marlboro cigarettes.

The suit alleges that when Stephen C. Haglund began smoking in the 1970s, Philip Morris could have provided a safer alternative to Marlboros by employing technology that extracted addictive nicotine from the tobacco in cigarettes.

Lawyers for Philip Morris have denied that the nicotine in its cigarettes prevented Mr. Haglund from giving up smoking and that the "alternative design" mentioned by the plaintiffs would have prevented his death. . . .

Citing internal Philip Morris documents that will be introduced into evidence, Mr. Weisman said the tobacco company knew for years that nicotine was addictive, but "wanted to produce a product that would get people hooked and keep them hooked."

Paul F. Ware Jr., a lawyer for Philip Morris, said solvent extraction did not remove all of the nicotine from cigarettes, and more importantly, did not remove any of the carcinogens.

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• Lawyers begin wrangle in smoker death suit 

Lawyers for both sides made opening statements to the jury today in a wrongful death and product liability case brought against Philip Morris Inc. by the family of a Douglas man who died of lung cancer in 2000, after years of smoking Marlboro cigarettes.

The suit alleges that when Stephen C. Haglund began smoking in the 1970s, Philip Morris could have provided a safer alternative to Marlboros by employing technology that extracted addictive nicotine from the tobacco in cigarettes.

Lawyers for Phil Morris have denied that the nicotine in its cigarettes prevented Mr. Haglund from giving up smoking and that the "alternative design" mentioned by the plaintiffs would have prevented his death. The lawsuit was filed in 2001, a year after Mr. Haglund's death at age 51, by his widow, Brenda L. Haglund, and two of their children, Stephen M. Haglund and Melissa J. Robledo.

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• MAJOR LITIGATION SETBACKS FOR TOBACCO INDUSTRY IN THE UNITED STATES 

During the last four months, there have been several court decisions that have bolstered the prospects of plaintiffs who have sued tobacco companies.

May 18.  Haglund v. Philip Morris, 847 N.E. 2d 315 (pdf).  The Massachusetts Supreme Judicial Court unanimously rejected the tobacco industry’s blame-the-smoker-for-smoking defense.  This is the first court opinion in the country that has squarely held that, as a matter of law – except in extremely rare and unlikely cases – the so-called “personal choice” defense is unavailable to the tobacco companies.  Thus, a consumer can proceed with a strict liability tobacco lawsuit in Massachusetts even while knowing that there is something wrong with the product. All the consumer has to prove is that it was possible to make a less dangerous product (e.g., one without nicotine, which would not be addictive and hence not smoked in quantities large enough to cause disease), and that the product caused the consumer’s illness.

July 6.  Engle v. Liggett Group, 2006 Fla. LEXIS 1480 (pdf).  The Florida Supreme Court upheld findings that cigarette manufacturers were negligent, committed fraud and fraudulent concealment and that their products are defective, unreasonably dangerous, addictive, and the cause of 16 major diseases.  . . .

July 21.  Arnitz v. Philip Morris, 933 So. 2d 693 (pdf).  See http://tobacco.neu.edu/litigation/cases/pressreleases/Arnitz.htm  The Court of Appeal of Florida, Second District upheld a plaintiff verdict, ruling that a plaintiff is allowed to raise the issue of comparative negligence as a tactical matter in the absence of the tobacco company defendant’s pleading of comparative negligence as an affirmative defense.  This permits juries to rule for plaintiffs even if the jurors also think (as they often do) that the plaintiffs were also at fault.

August 9.  Aspinall v. Philip Morris.  A Massachusetts Superior Court judge rejected Philip Morris’ motion for summary judgment in a “light” cigarette class action.  The judge rejects the argument that the Federal Cigarette Labeling Act preempts the plaintiffs’ claims and disagreed with the Illinois Supreme Court’s majority opinion in Price v. Philip Morris on the question of whether the Federal Trade Commission’s use of consent orders constitutes “specific authorization” of industry conduct by a federal agency, thus shielding the industry from liability under state consumer protection statutes. . . .

August 22.  Thompson v. Brown & Williamson Tobacco Co.  The Missouri Court of Appeals, Western District upheld a plaintiff verdict and rejected all appellate arguments made by the tobacco company defendants, including the contention that Congress has preempted state law claims, that “common knowledge” of the dangers of smoking obviated the defendants’ duty to warn in a negligence claim and that a defendant can withdraw an affirmative defense of comparative negligence and prevent the plaintiff from seeking a comparative fault instruction, even when the evidence presented at trial supported such an instruction. . . .

Regarding tobacco litigation, certain tobacco-friendly stock analysts have focused virtually exclusively on whether and when Altria will spin off Kraft Foods and have disregarded or downplayed legal developments that have gone against tobacco’s interests.  . . .

The latest proof that these companies have not transformed themselves into responsible corporate citizens – as they have claimed as part of a multi-million-dollar public relations campaign -- came on August 31 when the tobacco company defendants moved to have Judge Kessler not apply her ban on false descriptors such as “light” and ‘Low Tar” and her requirement of corrective statements to sales outside the United States.  As the Washington Post in its September 5 editorial (“Big Tobacco, Lawless As Ever,”) put it: “If we can’t continue to defraud Americans into killing themselves, they effectively asked, can we at least keep suggesting to billions of people abroad that some cigarettes are safer than others?”

In light of these pro-plaintiff legal developments, the Tobacco Products Liability Project (TPLP), a project of the Public Health Advocacy Institute based at Northeastern University School of Law in Boston, plans to conduct a litigation conference in February 2007 in Miami, Florida.

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Supreme Judicial Court Case Summaries: May 29, 2006. ($$) 

Where a Superior Court judge dismissed a wrongful death action which (1) was brought against a cigarette manufacturer and (2) was predicated on breach of the warranty of merchantability, we hold that the dismissal was improper and reverse it.

SJC's comments

"We determine in this case whether a cigarette manufacturer in a wrongful death action predicated on breach of the warranty of merchantability may assert as an affirmative defense that the decedent smoker's use of cigarettes was 'unreasonable.' See Correia v. Firestone Tire and Rubber Co., 388 Mass. 342, 356 (1983) (in warranty liability action, 'the user's negligence does not prevent recovery except when heunreasonably uses a product that he knows to be defective and dangerous') (Correia defense).

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Biz Buzz: Where there's cigarette smoke, there's a firestorm of words  

Take the Massachusetts Supreme Court, which ruled last week in a wrongful death suit filed by Brenda Haglund, whose husband died of lung cancer six years ago. The court reviewed her case after a lower court rejected her claim that a tobacco company should have warned her husband about the dangers of smoking.

The high court also ruled against her, stating both parties "agree that cigarette smoking is inherently dangerous and that there is no such thing as a safe cigarette," according to a report by Merrill Lynch analyst Christine Farkas. "Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes."

The opinion caused Farkas to rule on the court's grammatical gambit.

"If the word nonunreasonable broadly means reasonable (given the double negative) the court is suggesting that because all cigarettes are unsafe, they cannot be reasonably used -- even if consumers have been informed of the hazards," Farkas wrote.

No double jeopardy in this case.

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SULLUM: No Such Thing As a Reasonable Smoker 

Philip Morris tried to minimize the significance of this ruling, noting that the court left open the possibility of using the Correia defense in extraordinary circumstances, such as when someone continues to smoke after developing emphysema. But this decision makes it much easier for smokers and their survivors to win damages and will probably result in a lot more litigation.

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• 2nd UPDATE: Mass High Court Limits Tobacco Indus Defense ($$) 

The state's highest court Thursday limited one of the tobacco industry's most successful defenses in wrongful death lawsuits, ruling the companies cannot shield themselves from liability simply by claiming that smokers acted unreasonably by lighting up when they knew cigarettes were dangerous.

The court's ruling came in a wrongful death lawsuit filed against Philip Morris Inc., a unit of Altria Group (MO), by Brenda Haglund, whose husband died of lung cancer in May 2000.

The lawsuit was dismissed by a lower court judge.

But the state Supreme Judicial Court reinstated Haglund's lawsuit, ruling that a defense often used by tobacco companies cannot be used by Philip Morris in Haglund's case. The court ruled that type of defense can only be used if a reasonably safe product was used in an unreasonable way.

"Here, however, both Philip Morris and the plaintiff agree that cigarette smoking is inherently dangerous and that there is no such thing as a safe cigarette. Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes," the court said in its unanimous, 7-0 ruling.

The court said it would not block the use of the personal choice defense in every cigarette-related case. The defense might be used when a person's behavior was "overwhelmingly unreasonable," such as when someone with emphysema decided to start smoking.

But the court said the defense, "which serves to deter unreasonable use of products in a dangerous and defective state, will, in the usual course, be inapplicable."

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• SJC-09483, Massachusetts Supreme Judicial Court Oral Arguments 

Date February 7, 2006

Video View oral argument with Windows Media Player

Justices Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, Cordy, JJ.

Summary Tobacco. Warranty. Uniform Commercial Code, Warranty. Estoppel. Words, "unreasonable use".

Appealed From Worcester Superior Court, Justice Leila R. Kern

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• SJC says tobacco firms can't blame smokers as defense 

The Supreme Judicial Court ruled yesterday that cigarette makers cannot defend against personal-injury lawsuits by arguing that smokers should know the health risks of cigarettes and thus are responsible for harming themselves.

Cigarettes, the court said, are so dangerous that they cannot be used safely by anyone.

The ruling, believed to be the first of its kind in the nation by a top state court, said Philip Morris Inc. cannot shield itself from a lawsuit by the widow of a Douglas man who died of lung cancer by arguing that he knew cigarettes were harmful and thus had used the product unreasonably. Tobacco companies have successfully used that defense in wrongful death suits across the country.

''Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes," Chief Justice Margaret H. Marshall wrote for the court.

Although the 7-0 ruling only concerns suits against cigarette makers in Massachusetts, antismoking activists hailed it as a landmark that could bolster litigation elsewhere, if courts in other states agree with the SJC's reasoning.

''This could blow Big Tobacco out of the water," said John F. Banzhaf III, a professor at George Washington University Law School and founder of a national antismoking group. ''What the court is saying is that this product is so dangerous that the plaintiff almost never can be said to have used it improperly."

But Boston lawyers for Philip Morris disputed that the ruling in the case of Stephen C. Haglund would ripple beyond Massachusetts, saying that it will only apply to a limited number of cases here. . . .

A lawyer for the Product Liability Advisory Council, which filed a brief siding with Philip Morris, accused the SJC of ''playing Big Brother." He disputed the court's statement that ''there is no such thing as a safe cigarette," arguing that many smokers do not get sick.

''What they mistakenly assumed is that cigarettes are inevitably dangerous, they basically harm everyone," said David R. Geiger, a Boston lawyer whose group represents a wide spectrum of product makers. ''I worry that this [ruling] could be used not only in cigarette litigation but in litigation against manufacturers of all products that have inherent dangers." . . .

In the Haglund case, Fine employed a bit of legal jujitsu. He conceded that Haglund knew that cigarettes were dangerous and that he was unreasonable to take up the habit, but argued that it was irrelevant because cigarettes cannot be used safely at all.

Citing that concession, Worcester Superior Court Judge Leila R. Kern dismissed the suit. But the SJC yesterday reversed her ruling.

''This was a home run for the plaintiff," said Richard Daynard . . . .

But Geiger, the Product Liability Advisory Council lawyer, said that Philip Morris could ask the SJC to hear arguments again if the company gathers evidence showing that cigarettes can be used safely. The manufacturer might also be able to appeal to the US Supreme Court, he said.

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• HAGLUND v. PHILIP MORRIS 

We determine in this case whether a cigarette manufacturer in a wrongful death action predicated on breach of the warranty of merchantability may assert as an affirmative defense that the decedent smoker's use of cigarettes was "unreasonable." See Correia v. Firestone Tire and Rubber Co., 388 Mass. 342, 356 (1983) (in warranty liability action, "the user's negligence does not prevent recovery except when he unreasonably uses a product that he knows to be defective and dangerous") (Correia defense). [FN2] . . . .

We affirm the judge's denial of the motion to strike and reverse the judgment of dismissal. As we explain more fully below, the Correia defense presumes that the product at issue is, in normal circumstances, reasonably safe and capable of being reasonably safely used, and therefore that the consumer's unreasonable use of the product he knows to be defective and dangerous is appropriately penalized. Here, however, both Philip Morris and the plaintiff agree that cigarette smoking is inherently dangerous and that there is no such thing as a safe cigarette. Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes. Thus the Correia defense, which serves to deter unreasonable use of products in a dangerous and defective state, will, in the usual course, be inapplicable.

However, we also agree with Philip Morris that, in certain conceivable scenarios, an individual consumer's behavior may be so overwhelmingly unreasonable in light of the consumer's knowledge about, for example, a specific medical condition from which he suffers, that the Correia defense may be invoked. The jury determine unreasonable use from the specific factual context of each case, and we are loathe to foreclose assertion of the defense as a matter of law in every cigarette-related product liability action. Because the plaintiff's motion for summary judgment on the Correia defense was brought early in the litigation, we reverse the judgment of dismissal to afford the parties the opportunity to develop more fully the evidence supporting their claims and defenses.

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