For tobacco litigation, Massachusetts is the place

 Edward L. Sweda Jr., The Daily Record Newswire

In the late 1950s and early 1960s, the North Carolina-based Lorillard Tobacco Co., as part of its marketing campaign for Newport cigarettes, organized free sampling in many locations across the United States.

Among the places where small packages of Newport cigarettes were handed out were public housing projects, including the Orchard Park project in Roxbury. It was there that 9-year-old Marie Evans received, from a van parked near her playground, her first free pack of Newport cigarettes, which she traded with her older sisters for candy.

By age 13, Marie was smoking those cigarettes and soon became addicted. Unable to quit smoking despite many attempts to do so, she died of small-cell lung cancer in 2002 at the age of 54.

Marie’s only son, Willie Evans, filed a product liability suit in Suffolk Superior Court against Lorillard in 2004. His legal claims included negligence and breach of warranty. Evans also asserted claims under G.L.c. 93A for breach of the implied warranty of merchantability and breach of a duty voluntarily undertaken by Lorillard to research the health effects of smoking and to provide accurate information about those effects to the public.

The trial lasted 14 days in November and December 2010. It included expert testimony that it had been possible to manufacture a less hazardous cigarette, one with either so little nicotine that smokers would not become addicted, or so little tar that even if they were addicted the smoke would be unlikely to kill them.

On Dec. 14, 2010, after six days of deliberations, the jury found for the plaintiff and awarded $21 million in damages to compensate Evans’ loss of the services, protection, care, society and companionship of his mother; $50 million for the pain and suffering endured by Marie Evans; and — two days later — $81 million in punitive damages.

After the trial, Superior Court Judge Elizabeth M. Fahey reduced the pain and suffering damages to $25 million, reduced the damages for loss of companionship to $10 million, and left the punitive damages award intact.

Lorillard appealed, principally on the basis that the product was not defective and unreasonably dangerous, and hence it did not breach the implied warranty of merchantability because no one would smoke a cigarette for very long if it delivered only negligible amounts of nicotine or tar.

But the Supreme Judicial Court on June 11, 2013, in  Evans v. Lorillard Tobacco Co., 465 Mass. 411, 990 N.E.2d 997, unanimously upheld the jury’s compensatory damages award. At the same time, the SJC overturned the $81 million punitive damages award solely due to a flaw in the jury instructions.

“The plaintiff presented evidence at trial that cigarettes are a highly engineered product, that the defendant manipulated its product to give the smoker a particular dose of tar and nicotine, that an addictive level of nicotine was approximately 0.4 to 0.5 milligrams of nicotine per cigarette, and that Lorillard never sold a cigarette with nicotine levels at or below 0.4 milligrams per cigarette,” the court determined.

Moreover, “[t]here was abundant evidence” that an alternative design that provided non-addictive levels of nicotine “was technologically feasible” and “was feasible as to cost.”

While the SJC agreed with Lorillard that an addicted smoker would not likely smoke the alternative, less hazardous cigarette, the court pointed out that the proposed alternative would indeed function as a cigarette for a teenager taking her first few puffs.

And for the purposes of product liability law, which is designed to protect the public from the harms caused by defective and unreasonably dangerous products, the SJC concluded that the perspective of the new, not-yet-addicted smoker was the more relevant one.

Building upon its 2006 opinion in Haglund v. Philip Morris, Inc., 446 Mass. 741, 847 N.E. 2d 315, which rejected a smoker’s personal choice defense, the SJC said: “We decline to place addictive chemicals outside the reach of product liability and give them special protection akin to immunity based solely on the strength of their addictive qualities. To do so would eliminate any incentive for cigarette manufacturers to make safer perhaps the most dangerous product lawfully sold in the market through reasonable alternative designs.”

In those two decisions, the SJC has clearly articulated the position that cigarette manufacturers get no special protection on the basis that they have addicted their customers who continue to smoke despite knowing that smoking is harmful.

The SJC’s unanimous ruling in Evans stands in stark contrast to the New York Court of Appeals’ 2008 opinion in Adamo v. Brown & Williamson Tobacco Corp., 11 N.Y.3d 545, 900 N.E.2d 966. In that case, the plaintiffs, a husband and wife, had been awarded compensatory and punitive damages after a trial court jury had found that the tobacco company defendant had negligently designed the cigarettes that the wife had smoked for 40 years.

The Appellate Division (New York) reversed that judgment, and the Court of Appeals affirmed the order on the ground that the plaintiffs, while having “presented evidence from which a jury could find that light cigarettes — cigarettes containing significantly lower levels of tar and nicotine — are ‘safer’ than regular cigarettes,” nonetheless had failed to show “that cigarettes from which much of the tar and nicotine has been removed remain ‘functional.’”

The Court of Appeals, in the context of the Adamo case, found that the “function of a cigarette is to give pleasure to a smoker.” Such an interpretation of the “function” of a deadly and addictive product sets a dangerous precedent.

An important aspect of the SJC’s opinion in Evans is its discussion of the contrast between the Restatement of Torts 2d and the Restatement of Torts 3d:

“Under section 402A of the Second Restatement, a seller is liable for physical harm caused to the ultimate user if it ‘sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property.’”

Comment i to section 402A addressed the issue of “unreasonably dangerous” tobacco: “Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.”

Under section 2 of the Third Restatement, however, a “product … is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design … and the omission of the alternative design renders the product not reasonably safe.”

In determining whether a reasonable alternative design was practicable, the SJC noted “a trier of fact may consider whether the alternative design is in actual use and whether it is common practice in the industry, but, if expert testimony established that ‘a reasonable alternative design could practically have been adopted, a trier of fact may conclude that the product was defective notwithstanding that such a design was not adopted by any manufacturer, or even considered for commercial use, at the time of sale,’” citing Third Restatement, section 2, comment d.

The SJC said while “consumer expectations may be considered in the risk-utility balancing, the Third Restatement makes it clear that, in sharp contrast with the Second Restatement, ‘consumer expectations do not play a determinative role in determining defectiveness,’” citing Third Restatement, section 2, comment g.

Considering a national perspective, the SJC said that the “vast majority of States have adopted the risk-utility tests of the Third Restatement rather than the consumer expectations test of the Second Restatement.”

Since the SJC continues to uphold the risk-utility balancing standard, it ruled that the trial judge “did not err in instructing the jury that they ‘may,’ rather than that they ‘must’ consider whether Newport cigarettes met consumers’ reasonable expectations as to safety.”

Additionally, the SJC concluded that “a reasonable jury could find from the evidence presented that a low tar, low nicotine cigarette constituted a safer reasonable alternative to Lorillard’s Newport cigarettes.”

Therefore, anyone who developed a tobacco-related disease from smoking any cigarettes (other than “ultra low tar and nicotine” cigarettes) in Massachusetts can now recover damages from the cigarette manufacturer. As the Evans decision makes clear, it doesn’t matter whether the plaintiff would have smoked the safer cigarettes; the very possibility that they could have been manufactured and marketed renders all the less-safe cigarettes actually sold legally defective.

Furthermore, as Haglund earlier had made clear, the plaintiff’s fault in smoking cigarettes is simply not relevant.

On Oct. 23, 2013, Lorillard announced that it had settled the case for $79 million ($35 million plus accumulated interest) and dropped its threatened appeal to the U.S. Supreme Court.

The SJC’s Evans v. Lorillard opinion therefore stands as a landmark precedent, binding in Massachusetts and potentially persuasive in any other jurisdiction. The ruling is also not limited to cigarettes manufactured and promoted by Lorillard, but applies to cigarettes put into the marketplace by any cigarette manufacturer.

Thus, the state of the law in Massachusetts, thanks to the SJC’s ruling in Evans v. Lorillard Tobacco Co., is that any cigarette that addicts or that maintains the nicotine addiction of consumers is defective. Because this applies to virtually every cigarette ever sold in the commonwealth, it is a critical development for smokers who seek legal redress from the companies that put these defective products on the market.

Conversely, it is disastrous news for cigarette companies, whose executives have made the choice to manufacture, promote and profit from defective products that have addicted and killed millions of their customers. MLW

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Edward L. Sweda Jr. is senior attorney for the Public Health Advocacy Institute, a nonprofit organization that promotes litigation against tobacco companies as a strategy to improve public health, based at Northeastern University School of Law in Boston. He is a contributing author to the 2014 surgeon general’s report, “The Health Consequences of Smoking — 50 Years of Progress,” and can be contacted at edsweda@phaionline.org.

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