Mass. court affirms big verdict against Big Tobacco

Autodesigner via Wikimedia Commons CC0 1.0

Last week, the Massachusetts Supreme Judicial Court affirmed a lung cancer victim's verdict against Marlboro maker Philip Morris (PM).

Arising from verdict in a $37m case against PM and co-defendants, including R.J. Reynolds Tobacco Co. and Star Markets, the decision broke no new ground, but might be instructive for students of product liability.

On appeal, PM did not "dispute that the plaintiffs introduced sufficient evidence of agreement between it and the other cigarette entities to deceive the public about the dangers of smoking.... Further, [PM did] not dispute the evidence of medical causation, i.e., that smoking causes the type of cancer from which Greene suffered."

Rather, PM asserted that the plaintiff failed to connect causally her choice to smoke to specific misrepresentations. The court wrote that PM viewed the evidence too narrowly, and that the plaintiff sufficiently "met this requirement by introducing evidence of her detrimental reliance on the conspiracy's misrepresentations regarding filtered cigarettes. [PM] represented that such products, including Marlboro Lights, delivered lower tar and nicotine and were a healthier alternative to regular cigarettes."

The plaintiff also met the burden of proving causation on a count of civil conspiracy. "The conspirators expressly misrepresented to the public that they would not have been in the business of selling cigarettes if cigarettes were truly dangerous," the court reasoned. Consequently, "the jury could have found that [the plaintiff] would have smoked less, or quit sooner, absent the conspiracy's campaign of fraud and deception."

PM also pointed to the court's 2021 adoption of the Third Restatement approach to causation (on this blog) to argue that the jury was erroneously instructed on "substantial causation." The court ducked the question by finding that counsel had not preserved their objection to the jury instructions.

Finally, the court upheld the award as against PM challenges to the trebling of damages under Massachusetts consumer protection law and the commonwealth's 12% judgment interest rate.

The case is Greene v. Philip Morris USA Inc., No. SJC-13330 (Mass. May 9, 2023). The unanimous opinion was authored by Justice Scott L. Kafker, who also wrote the opinion in the 2021 causation case.

Public records make $363m toxic-tort verdict possible

Condensed ethylene oxide, a carcinogen.

102% Yield via Wikimedia Commons CC BY-SA 4.0

Public records made possible a $363m verdict in a toxic tort case in September.

For the ABA Journal, attorneys Jennifer M. Cascio, Lance D. Northcutt, and Patrick A. Salvi II wrote about how they won the verdict in an Illinois jury trial (limited free access). They explained:

In August 2018, a federal report revealed that a small community southwest of Chicago had an elevated cancer risk due to emissions of a carcinogen from two innocuous buildings situated between a Target and a Denny’s. Those buildings were operated by the medical device sterilization company Sterigenics, which had been releasing a colorless, odorless human carcinogen [ethylene oxide] since 1985 without any warning to the surrounding community that included homes, schools, businesses and parks—all within a mile.

Bringing such a case is easier said than done; I know because I saw it in Erin Brockovich and A Civil Action. Seriously, though, even at the pleading stage, showing evidence of proximate causation between a toxic substance and specific plaintiffs' illnesses is a towering hurdle, much less the proof that would be needed to win a trial. And a plaintiff that cannot get over the pleading hurdle cannot get discovery.

It's noteworthy, then, that, as described, this case started with a public federal report and proceeded thanks in part to the Freedom of Information Act (FOIA). Especially burdened by a dearth of relevant epidemiological evidence, the plaintiff lawyers wrote that they amassed the necessary evidence of causation by "gather[ing] documents via Freedom of Information Act requests and digging through state and federal databases."

We like to think that our not insubstantial regulatory state is using the resources that it itself produces to safeguard public health. For whatever reason, and there are many reasons, that's the exception to the rule. America rather relies heavily on the tort system as a first-line accountability mechanism. FOIA is vital to bridge the gap between public and private enforcement. 

The case moreover shows the importance of affirmative disclosures of scientific information through publicly available databases. Here, fortunately for affected persons, plaintiff lawyers were on the hunt for evidence. No doubt, though, some victims did not know they were victims of pollution, a colorless, odorless gas, no less, until they saw an attorney's ad. FOIA without affirmative disclosure is useless when people don't know there's a reason to be asking questions. Cancer sufferers might have other things on their minds.

The case, one of more than 700 of its kind against the same defendant, is Kamuda v. Sterigenics, U.S. LLC, No. 2018-L-010475 (Ill. Cir. Ct. verdict Sept. 19, 2022).