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From Products Liability Law Daily, February 15, 2019

Smoker fails to prove that defects in design or warnings caused health issues

By Pamela C. Maloney, J.D.

Previously litigated issues as to the addictive nature of tobacco products did not estop tobacco companies from raising proximate cause as a successful defense to a smoker’s negligence and strict liability design defect claims and his failure to warn claim.

A smoker who developed serious lung conditions allegedly as a result of smoking cigarettes failed to prove that a design defect in the cigarettes that he preferred to smoke caused those illness, the U.S. District Court for the Eastern District of Pennsylvania ruled after determining that a previously litigated RICO case against the tobacco companies precluded them from asserting the smoker’s failure to prove causation as a defense to the smoker’s claims. The court also found that the smoker would not have heeded additional warnings and, thus, there was no evidence that the alleged failure to warn by one of the tobacco companies caused his illnesses. Finally, there was no evidence to support the smoker’s claim for intentional infliction of emotional distress, which the court dismissed (McCracken v. R.J. Reynolds Tobacco Co., February 14, 2019, Kearney, M.).

A pack-a-day cigarette smoker, who also had been exposed to asbestos, was diagnosed with emphysema and chronic obstructive pulmonary disease, which his treating physicians attributed to tobacco use and possible occupational exposure to asbestos. The smoker, who preferred cigarettes manufactured by R.J. Reynolds Tobacco Co. (RJR), ITG Brands LLC, and Republic Tobacco, L.P., but mostly smoked Kool cigarettes, filed a lawsuit against those companies, alleging that they had defectively designed tobacco products by manipulating the amount of nicotine in their products in order to encourage addiction. He also alleged that from 1966-1969, Republic had failed to display product information data, ingredients contained within the products, and warnings about smoking on its cigarette packages. The smoker added a claim for intentional infliction of emotional distress and his wife brought a claim for loss of consortium as part of the third amended complaint. Pending before the court were the parties’ motions for summary judgment.

Collateral estoppel. The smoker argued that he was entitled to summary judgment on hisdesign defect claims because the tobacco companies were estopped from contesting these claims under the detailed factual findings in United States v. Philip Morris (449 F.Supp.2d 1 (2006)), a case brought by the Department of Justice challenging cigarette manufacturers for their marketing strategies as a racketeering conspiracy. According to the smoker, the general finding in the DOJ case—that the manufacturers were guilty of manipulating the nicotine levels with use of porous cigarette papers, selective use of high nicotine yield tobacco, and the selection of filters in order to insure addiction—proved his design defect claims. The tobacco companies countered that offensive collateral estoppel did not apply in this case and that they were entitled to summary judgment because the smoker failed to produce evidence of causation.

Although there was a strong argument for offensive collateral estoppel in this case, every court that has been asked to apply the doctrine to the findings in the DOJ case had refused to do so on the ground that the judge in the DOJ case had not made any of the thousands of independent factual findings essential to the final ruling. Thus, the smoker carried the burden of proving which specific findings in the DOJ case supported his design defect claims, which he failed to do. Furthermore, even if the smoker had identified the applicable DOJ case findings that applied to his design defect claims, the court in this case was "wary" that allowing issue preclusion would incentivize plaintiffs to take a "wait-and-see" approach to their claims, which in turn would risk the creation of a fund for any plaintiff who smoked and had a long-related injury. In addition, tobacco companies, including RJR, had prevailed in similar cases, making according conclusive affect to the last in a series of litigations inappropriate. Finally, the case at bar was procedurally distinct from the DOJ case in that it did not involve the United States suing for injunctive relief in a bench trial, but involved an individual smoker suing for damages and a demand for a jury trial. Noting again that tobacco companies had obtained jury verdicts in their favor on similar issues, the court concluded that it could not automatically preclude the tobacco companies in this case from pursuing their defenses to the smoker’s claims. Thus, the court denied the smoker’s assertion of offensive collateral estoppel to preclude the manufacturer’s proximate causation defense.

Causation and design defect claim. Neither the documentary evidence nor the smoker’s medical records submitted in support of his design defect claims provided sufficient evidence that a defect in the cigarettes caused his disease or addiction. Those documents that were admissible under the government records exception to the hearsay rule did not show that nicotine manipulation by the tobacco companies caused the smoker’s health problems. Nor did the documents discuss ammonia’s effect on addiction or specifically address Kool cigarettes. Instead, the documents showed only that the tobacco industry as a whole used ammonia to enhance their cigarettes’ nicotine delivery, leaving the court to speculate how the use of ammonia in cigarettes caused the smoker’s health problems or addition. Similarly, the smoker’s medical records did not prove that a defect in the cigarettes caused his injuries. His treating physicians merely suggested that smoking in general caused his health issues, but did not offer an opinion as to how a design defect in the cigarettes caused those issues or his addiction. Nor did the smoker offer any competent evidence showing that ammoniated tobacco made him an addict.

On the other hand, the tobacco companies presented testimony from competent medical experts showing that the smoker did not have a tobacco use disorder and that RJR did not use ammoniated tobacco to increase the addictiveness of its cigarettes. In light of the smoker’s lack of evidence showing how a defect in the tobacco companies’ cigarettes caused any of his illnesses, the court granted their motion for summary judgement on the design defect claims.

Causation and failure to warn claim. In response to the smoker’s claims that one of the tobacco companies (Republic) had failed to warn that smoking could cause emphysema or that its cigarettes contained tar, nicotine, or carcinogens, Republic admitted that it did not place warnings on its cigarette packages from 1966 through 1969. However, the smoker admitted that he knew the dangers associated with smoking cigarettes and recalled having seen the Surgeon General’s warning that cigarette smoking could be hazard to your health on cigarette packs beginning in 1966. He also admitted that he did not pay much attention to those warnings. Furthermore, the smoker failed to show how the specific warnings he claimed were needed—product information data, the ingredients contained within the products, and general warnings about smoking—would have deterred him from smoking. To the contrary, his actual behavior indicated that he ignored given warnings for decades. In light of the smoker’s admitted awareness of the health risks associated with smoking and his long history of smoking, which began in 1966, the court found that there was no genuine issue of material fact that additional warnings would have made him stop smoking and granted Republic’s motion for summary judgment on the failure to warn claim.

Intentional infliction of emotional distress. The court also granted summary judgment on the smoker’s intentional infliction of emotion distress claim, finding no medial evidence that he suffered emotional distress. Even had the smoker presented evidence to support the claim, it would still fail because he did not produce evidence that the tobacco companies’ use of ammonia or their failure to include certain warnings caused him harm or that their practices exhibited outrageous or atrocious conduct.

The case is No. Civil Action 17-4495.

Attorneys: Ted A. McCracken, pro se. Kurt D. Weaver (Womble Bond Dickinson LLP) and Aya M. Salem (Conrad O'Brien) for R.J. Reynolds Tobacco Co., ITG Brands LLC and Republic Tobacco, L.P.

Companies: R.J. Reynolds Tobacco Co.; ITG Brands LLC; Republic Tobacco, L.P.

MainStory: TopStory CausationNews WarningsNews DesignManufacturingNews DefensesLiabilityNews TobaccoProductsNews PennsylvaniaNews

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