Opinion
SUCV201602691BLS1
12-16-2018
Timothy WARSHAFSKY, Personal Representative of the Estate of Cheryl Harris v. R.J. REYNOLDS TOBACCO COMPANY, As Successor by Merger to Lorillard Tobacco Company et al.
File Date: December 18, 2018
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Mitchell H. Kaplan, Justice
The plaintiff, Timothy Warshaysky, in his capacity as personal representative of the estate of Cheryl Harris, has brought this action against the defendants, R.J. Reynolds Tobacco Company, as successor by merger to Lorillard Tobacco Company (collectively, RJR), and Cumberland Farms, Inc. The plaintiff alleges that Ms. Harris suffered personal injuries and eventually a wrongful death as a result of smoking Newport and Winston cigarettes that were manufactured and distributed by RJR. The plaintiff’s third amended complaint (the complaint) is pled in four counts: Count I-breach of warranty; Count II-negligence; Count III-a violation of G.L.c. 93A and Count IV-civil conspiracy. The defendants have moved for partial summary judgment dismissing: Counts III and IV in their entirety; all claims asserted against Cumberland Farms; and so much of Counts I and II as assert claims based on a failure to warn smokers of the risks associated with smoking cigarettes. In his opposition to the defendants’ motion, the plaintiff pointed out that none of his claims were based upon a violation of a duty to warn. In consequence, at oral argument on this motion, the court concluded that it need not address that part of the defendants’ motion. It then denied the balance of the motion for partial summary judgment, explaining its reasons for its ruling on the record. This memorandum will summarize the court’s rationale for its ruling, as the court believes this may be useful to the parties as they prepare for the trial of this action.
This count is also asserted against Cumberland Farms from whom Mr. Harris alleges that she purchased her cigarettes for the last twenty years of her life.
FACTS
The following facts are taken from the pleadings and summary judgment record viewed in the light most favorable to the plaintiff. The court recites only those facts necessary to the resolution of the motion for partial summary judgment.
Ms. Harris began smoking RJR’s cigarettes in 1963 when she was 13 years old and handed free samples by representatives of RJR. She quickly became addicted and then continued to smoke Newport and Winston cigarettes at the rate of 2 packs a day for decades. Although her father died of lung cancer in 1974, she did not appreciate the health risks of cancer until her son was born with asthma in 1981. Although she tried to quit smoking several times, she was unable to do so. She was diagnosed with cancer in April 2016, and nonetheless continued to smoke. She died from that disease.
RJR, individually, and in concert with Lorillard and other tobacco companies, engaged in conduct which affirmatively misled the public concerning the known causal link between smoking and disease and this deception continued through the 1980s and 1990s.
Certain allegations asserted by RJR in defense of plaintiff’s claims are also pertinent to the court’s consideration of the pending motion. RJR contends that it will prove at trial, through expert testimony, that Ms. Harris was not addicted to cigarettes.
PRINCIPLES OF MASSACHUSETTS LAW ESTABLISHED IN EVANS v. LORILLARD
In Evans v. Lorillard, 465 Mass. 411 (2013) (Evans), the Supreme Judicial Court (SJC) reviewed a verdict entered in favor of the plaintiff following a jury trial on claims similar to some of those asserted in this case. In Evans, the plaintiff alleged that his decedent (Marie) began smoking in 1960 at the age of thirteen when she was handed free samples of Newport cigarettes. She soon thereafter became addicted to cigarettes, contracted lung cancer, and died from that disease. The following principles of law established in Evans appear relevant, or potentially relevant, to issues raised in the present case.
a. Design Defect
In its opinion, the SJC reviewed the jury’s verdict that Lorillard breached the implied warranty of merchantability. See G.L.c. 106, § 2-314(2)(c). In particular, the SJC expressly adopted Restatement (Third) of Torts: Product Liability § 2(b) which states, in relevant part, "[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." It quoted with approval comment f to that section: "In determining whether the alternative design was practicable, 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 establishes 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." Id. at 424-25. (Internal quotations omitted.)
The SJC then found that the plaintiff had
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 plaintiff proposed as a reasonable alternative a cigarette without menthol where the carcinogens in the tar are at a level that was relatively safe and where the level of nicotine was nonaddictive ... There was abundant evidence that this alternative was technologically feasible.Id. 429-30.
In response to this finding, Lorillard argued
"that, even if a low tar, low nicotine cigarette were a technologically feasible alternative design that could be produced at comparable cost, it was not a reasonable alternative design because carcinogenic levels of tar and addictive levels of nicotine are inherent in all ordinary cigarettes and the inherent risks of smoking cannot be removed without fundamentally altering the nature of the product ... [Additionally], even if the alternative design proffered by the plaintiff were a cigarette, the reduced tar and nicotine in that alternative cigarette so fundamentally alters the nature of the product that no reasonable jury could find that it was a reasonable alternative to Newport cigarettes." Id. at 431-32. [This was because] "the alternative cigarette proffered by the plaintiff is not a reasonable alternative as a matter of law because, as the plaintiff’s experts conceded at trial, ordinary smokers-meaning smokers who are addicted to the nicotine in tobacco-will not smoke cigarettes that will not provide them with the nicotine they crave to satiate their addiction."Id. at 433-34.
The SJC rejected that argument explaining that
the evidence at trial would adequately support a finding that a cigarette with low tar and nicotine was a reasonable alternative to an individual who retained the unimpaired ability to make a rational, informed choice whether to smoke, such as an individual who was considering whether to start smoking or an individual who smoked infrequently or in small quantities. However, the plaintiff’s proposed alternative cigarette was not a reasonable alternative to one who already was addicted to nicotine, whose freedom of choice was physiologically impaired by the effects of the nicotine. In short, the evidence in this case is sufficient to support a finding that low tar, low nicotine cigarettes are a safer, reasonable alternative design to the design used by Lorillard in their Newport cigarettes for the subclass of cigarette consumers who are not yet addicted but is not sufficient to support a finding that such cigarettes are a reasonable alternative for the subclass of consumers who are already addicted ... 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. Rather, we conclude that, in determining as a matter of law whether the evidence presented at trial was sufficient for a reasonable jury to conclude that the plaintiff’s proposed design was a reasonable alternative to the defendant’s product, we must determine whether the design alternative unduly interfered with the performance of the product from the perspective of a rational, informed consumer, whose freedom of choice is not substantially impaired by addiction. Applying that standard to the evidence in this case, we conclude 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.Id. at 435-36.
Then turning to the verdict returned in favor of the plaintiff, the SJC held that
the plaintiff submitted sufficient evidence for a reasonable jury to conclude that the combined effect of the nicotine and tar consumed by smokers of Lorillard’s Newport cigarettes was a substantial factor in bringing about Marie’s addiction, lung cancer, and wrongful death, and that her injury would have been reduced or avoided had she smoked cigarettes with a reasonable alternative design that would have resulted in a nonaddictive level of nicotine and a reasonably safe level of carcinogenic tar being consumed by the smoker. Lorillard does not escape liability for its defective product simply because an addicted smoker continued to use a product that sated her addiction rather than switch to a safer product that would not do so.Id. at 438-39.
Of significance to the issues raised in the defendant’s motion for partial summary judgment in this case is that the alleged design defect must be considered from the perspective of a person not yet addicted to cigarettes and therefore not yet in need of sufficient nicotine to satiate the smoker’s addiction.
b. Negligence in Marketing and Distribution
The SJC inferentially held that based on the evidence presented, a jury could find that a marketing and distribution campaign that targeted minors constituted negligence, although evidence that the defendants targeted African-American adults was wrongfully admitted. However, as with a breach of warranty claim based on negligent design, the plaintiff must prove that this negligent conduct caused the plaintiff’s wrongful death. Id. at 445.
c. Violation of c. 93A
In Evans, the SJC also explained that the plaintiff’s claim that Lorillard violated c. 93A, and the acts and practices that violated that statute caused Marie injury, had to be "limited to events after 1979, when c. 93A was amended" to establish a private right of action. Id. at 464. In particular, the plaintiff would have to prove that those post-1979 acts were the cause of Marie’s injury and death.
VIOLATION OF CHAPTER 93A
While the plaintiff’s memorandum in opposition to the defendants’ motion to dismiss the c. 93A claim is somewhat ambiguous on this point, Evans makes clear that only acts undertaken after 1979 can form the basis for a private right of action for damages sustained as a result of a violation of c. 93A. Viewed in the light most favorable to the plaintiff, the summary judgment record adequately demonstrates disputed issues of fact concerning whether RJR engaged in knowingly deceptive conduct regarding the links between smoking and disease and sold a product that breached the implied covenant of marketability.
Although pre-1979 conduct might be admissible to place post-1979 conduct in context.
However, the defendant’s contention that the c. 93A count must be dismissed focuses on the element of causation, i.e., whether any of the allegedly unfair or deceptive conduct undertaken by RJR after 1979 caused Ms. Harris’ injuries and death. In response, the plaintiff appears to argue that when the c. 93A claim is based upon deceptive conduct, a causal connection between the conduct and the plaintiff’s injury need not be proven. He cites Aspinall v. Philip Morris Co., Inc., 442 Mass. 381 (2004) (Aspinall) for this contention. In this regard, reliance on Aspinall is misplaced. In Aspinall, the SJC held that, if proved, the deceptive advertising of Marlboro Lights would establish a per se injury to a class member on the purchase of the product because that product would not have the advertised characteristics and the cigarette purchased would, therefore, be worth less than what the class member paid for it. The loss would be based on the difference between the economic value of the item as advertised and purchased, and, if the amount of this economic loss could not be established, the class member would be entitled to recover $ 25, the amount provided by statute when the amount of the loss is nominal. Id. at 398-408. That principal has no application to Ms. Harris’ claim that she suffered a personal injury as a result of an act or practice that violated c. 93A. The plaintiff must prove the causal connection between the wrongful act and the personal injury.
RJR argues that causation cannot be established by means of post-1979 conduct, as a matter of law, because the plaintiff has pled that Ms. Harris became addicted shortly after smoking her first cigarette in 1963 and could not thereafter stop smoking, and, according to RJR, she is bound by this allegation. In support of this contention, RJR cites G.L.c. 231, § 87 and De Nunzio v. City Manager of Cambridge, 341 Mass. 420 (1960). However, in that case, the allegation in question was admitted by the defendant, and, therefore, established for the purposes of that case. Similarly, in Wasserman v. Tonelli, 343 Mass. 253, 257 (1961), the court held that under G.L.c. 231, § 87 an allegation admitted by the defendant "will conclude the issue." Conversely, in the present case, RJR denied that Ms. Harris became addicted to cigarettes in 1963, or thereafter. It represents that it will offer evidence at trial that specifically contradicts that allegation. G.L.c. 231, § 87 does not provide that the plaintiff is precluded from recovering under alternative theories if it proves other allegations that support recovery, but not an allegation denied by the defendant.
The court does, however, note a tension between the allegation that Ms. Harris was addicted to cigarettes before 1970, but injured by conduct that occurred after 1979. The plaintiff apparently seeks to address this tension by asserting that "Plaintiff’s injury is lung cancer and death (that occurred long after 1979), [and defendant] offers no authority for the premise that addiction is somehow an element of a 93A claim." This statement simply misses the point. As the SJC expressly noted in affirming the verdict in Evans, there was evidence in that case from which the jury could reasonably find that "the combined effect of the nicotine and tar consumed by smokers of Lorillard’s Newport cigarettes was a substantial factor in bringing about Marie’s addiction, lung cancer, and wrongful death, and that her injury would have been reduced or avoided had she smoked cigarettes with a reasonable alternative design that would have resulted in a nonaddictive level of nicotine and a reasonably safe level of carcinogenic tar being consumed by the smoker. Lorillard does not escape liability for its defective product simply because an addicted smoker continued to use a product that sated her addiction rather than switch to a safer product that would not do so." Id. at 438-39 (emphasis added). The import of addiction in this explanation of causation, at least in the context of a breach of warranty claim, is that addiction links the use of the defective product, decades before she was diagnosed with cancer, to the injury sustained. The inability of the deceased to switch to a non-defective cigarette is a result of the addiction. In consequence, wrongful conduct that occurs after addiction may, potentially, not be the cause of the injury sustained, for the same reason that it is not reasonable to assess whether a low tar and nicotine cigarette can be considered a substitute product for a smoker who is already addicted.
THE CONSPIRACY CLAIM
The plaintiff asserts its conspiracy claim on two theories: first, a so-called "true conspiracy" in which the wrong consists of two or more defendants acting in combination to coerce the plaintiff to act to her detriment-"where the wrong was in the particular combination of the defendants rather than in the tortious nature of the underlying conduct;" and second, concerted action where liability is imposed on one individual for the tort of another, such as providing substantial assistance to another in the commission of a tort. See Kurker v. Hill, 44 Mass.App.Ct. 184, 188-89 (1998). As the court understands the defendants’ argument in support of dismissal of this claim, it is again because the collectively coercive or concerted actions of RJR and other tobacco companies could not have caused the plaintiff’s deceased’s injury, as she was already addicted when this collective/concerted conduct occurred. The motion for summary judgment dismissing this claim is denied for the same reason that the motion is denied as to the c. 93A claim-the allegation that Ms. Harris was addicted in the 1960s was denied-although the issue of causation will have to be carefully addressed in special questions to the jury.
It may be noted that there is no right to a jury trial in claims brought under G.L.c. 93A, §§ 2 and 9, and the court does not plan to submit this claim to the jury.
A further comment on the application of the plaintiffs’ two theories of conspiracy to the allegations in the complaint and evidence presented in the summary judgment record is warranted. To the extent the conspiracy count is based on the theory of "true conspiracy," it appears relatively straightforward. Indeed, in Philip Morris USA, Inc. v. Putney, 199 So.3d 465 (Fl.App. 4th Dist. 2016) (Putney), a Florida Court of Appeal affirmed a jury verdict on this theory returned against tobacco companies. In doing so, the Court reasoned: "Given the number of co-conspirators involving the major players in the tobacco industry, the breadth of the conspiracy, and the addictive nature of cigarettes, we conclude that the conspiracy alleged in this case is an independent tort of conspiracy where mere force of numbers acting in unison or other exceptional circumstances may make a wrong. The unified actions of the conspirators, coupled with the addictive nature of cigarettes, resulted in the conspirators exerting a peculiar power of coercion over [the deceased]." Id. at 469. In reaching that conclusion the Florida Court relied, in part, on the definition of this type of conspiratorial independent tort provided in the Massachusetts case, Deslauries v. Shea, 300 Mass. 30 (1938) (where the SJC held "in order to prove an independent tort for conspiracy upon the basis of ‘mere force of numbers acting in unison, ’ it must be shown that there was some ‘peculiar power of coercion of the plaintiff possessed by the defendants in combination which any individual standing in a like relation to the plaintiff would not have had’ "). Certainly, in the pending case, the summary judgment record contains evidence supporting this theory. Although, again, causation is an element of this tort and must be proved. See Putney, 199 So.3d at 470.
The second theory relied upon by the plaintiff is not readily applied to the facts alleged in the complaint. Under this theory, the plaintiff must prove a separate tort committed by a person other than the defendant. The defendant may then also be liable to the plaintiff, if the defendant knows of this other person’s conduct, that this conduct constituted a breach of duty, and "gives substantial assistance or encouragement to the other so to conduct himself" Kurker, 44 Mass.App.Ct. at 189 citing Restatement (Second) of Torts § 876(b) (1977). Concerted action with the direct tortfeasor is thus an element to be proved by a plaintiff under this theory of conspiracy. As the court understands the plaintiff’s memorandum opposing summary judgment on the civil conspiracy count, it appears that plaintiff is arguing that all that must be proved to establish liability under this theory of conspiracy is concerted, wrongful action. To that extent, the plaintiff does not properly characterize this claim, the purpose of which is to establish liability on the part of a defendant for a tort committed by another person.
THE CLAIM AGAINST CUMBERLAND FARMS
There is evidence that Ms. Harris purchased cigarettes manufactured by RJR. If the plaintiff proves that the cigarettes she purchased breached the implied covenant of merchantability, and that she suffered injury as result of consuming them, she will have established her breach of warranty claim against Cumberland Farms, as a regular seller of the product, as well as RJR the manufacturer. See Allen v. Chance Maufacturing Co., 398 Mass, 32, 34 (1998).
ORDER
For the foregoing reasons, the defendants’ motion for partial summary judgment is DENIED.