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From Products Liability Law Daily, June 21, 2013

$1.3 million award against tobacco company for failure to warn of health risks and addiction upheld

By Pamela C. Maloney, J.D.

A cigarette smoker’s spouse presented sufficient evidence from which a jury could reasonably conclude that the smoker was neither aware, nor reasonably should have been aware, of the hazards of smoking in 1968, and that, therefore, the manufacturer was liable for failing to warn the smoker of the health risks associated with smoking, a federal district court in New York ruled (Clinton v. Brown & Williamson Holdings, Inc., June 20, 2013, Seibel, C.). The court further determined that the smoker’s causation evidence was sufficient to support the jury’s finding of liability. The court upheld the spouse’s right to bring a loss of consortium claim but remanded the case to amend the judgment to include pre- and post-judgment interest and for a new trial on the smoker’s pain and suffering damages and on the issue of loss of parental care and guidance incurred by the smoker’s children.

Background. The smoker’s spouse brought negligent failure to warn and fraudulent concealment claims against the American Tobacco Company seeking damages for the smoker’s wrongful death and pain and suffering from lung cancer allegedly caused by the smoker’s cigarette use. The spouse also sought loss of consortium damages. The manufacturer claimed that the smoker knew or should have known of the health hazards and addictiveness of smoking and, therefore, there was no duty to warn of those risks. The manufacturer also argued that the spouse failed to prove that any alleged failure to warn was not a substantial factor in causing the smoker’s injuries but rather that the smoker’s failure to quit smoking caused his injuries. The jury found the manufacturer liable and awarded the spouse $1,300,000 for the smoker’s wrongful death, $25,000 for the smoker’s pain and suffering, and $20,000 for the spouse’s loss of consortium.

Warning issues. In finding that the jury’s conclusion that the smoker was neither aware, nor reasonably should have been aware, of the hazards of smoking in 1968 or earlier was reasonable, the court pointed to the abundance of evidence in the record that there were mixed messages about the health hazards of smoking prior to September of 1968. Experts testifying for both the spouse and the cigarette manufacturer stated that information about the health risks of smoking was published in magazines and newspapers and on television before the smoker began smoking and continued to be disseminated through September of 1968. However, the spouse’s expert further testified that although many people were aware that studies relating to smoking and health had been conducted, mainstream media coverage of those studies also included responses from tobacco companies or industry groups, which generally stated that there was no proof that smoking caused cancer and that more research was necessary. The cigarette companies even published press releases about smoking and health in which they stated that they did not believe tobacco products were “injurious to health.” The spouse also offered evidence that the smoker did not learn about the link between smoking and lung cancer until his good friend was diagnosed with lung cancer attributed to smoking. In addition, the smoker’s family and friends testified that they were unaware of the health hazards of smoking before 1968.

The court also found that cigarette advertising provided mixed messages about the health hazards of cigarettes, noting that before 1968, the U.S. government did not require warnings on tobacco advertisements. The spouse’s expert also explained that cigarette advertising was everywhere in the 1950s and 1960s and that tobacco companies sponsored television programs and sporting events. The manufacturer’s expert agreed that during that timeframe, cigarette advertising portrayed “healthy people enjoying life and did not contain any warning about the risks of cigarette smoking.”

According to the court, although the manufacturer did present evidence that information regarding the risks of smoking was available publicly, the spouse introduced sufficient evidence from which a reasonable juror could conclude that the smoker himself was not aware of the health hazards and addictiveness of smoking prior to September of 1968.

Proximate cause. The manufacturer also contend that the spouse failed to prove that the alleged failure to warn was a substantial factor in causing the smoker’s injury, arguing instead that the smoker’s failure to quit smoking was the cause. The manufacturer also argued that additional warnings would not have prevented the smoker from starting to smoke or would have induced him to quit smoking earlier than he did. Undisputed evidence showed that the smoker’s spouse, children, family, friends, and doctor all encouraged him to quit smoking, but that he continued smoking until 2003 when he finally quit. The court explained that the manufacturer’s arguments overlooked the fact that by the time the smoker was warned of the health risks, he was addicted to cigarettes, thus making quitting “far from the simple proposition” the manufacturer’s arguments suggested. The spouse’s expert opined that the smoker was heavily addicted to nicotine likely by the age of 12 to 15 before he understood the health risks and addictiveness of smoking and that the manufacturer’s failure to warn the smoker before he became addicted was at least one substantial factor in causing his injury. Based on the evidence, the jury’s conclusion that the manufacturer’s failure to warn was a substantial factor in causing the smoker’s injury was not against the weight of the evidence or erroneous.

Loss of consortium claim. After upholding the jury’s finding on liability, the court went on to determine that the smoker’s spouse could maintain her loss of consortium claim despite the manufacturer’s argument that the two were not married at the time of its alleged failure to warn. The court determined that the manufacturer’s alleged failure to warn of the health hazards and addictiveness of smoking continued to injure the smoker during his marriage because he had become addicted to nicotine, causing him to continue to smoke. This ongoing addiction gave rise to his wife’s claim for loss of consortium.

The case number is: 05-CV-9907 (CS).

Attorneys: Jerome Howard Block (Levy, Phillips & Konigsberg, LLP) for Clinton. Harold Keith Gordon (Jones Day) for Brown & Williamson Holdings, Inc.

Companies: Brown & Williamson Holdings, Inc.; American Tobacco Company; Philip Morris USA Inc.

MainStory: TopStory WarningsNews TobaccoProductsNews NewYorkNews

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