Burton v. R.J. Reynolds Tobacco Co.

• Decision Date: 09 May 2002
• Docket Number: Case No. 94-2202-JWL.
• Citation: 208 F.Supp.2d 1187
• Parties: David BURTON, Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Kansas

208 F.Supp.2d 1187

David BURTON, Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants.

Case No. 94-2202-JWL.

United States District Court, D. Kansas.

May 9, 2002.

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Kenneth B. McClain, Nicholas E. Mebruer, Nimrod T. Chapel, Jr., Donald H. Loudon, Jr., Scott B. Hall, Humphrey, Farrington, McClain & Edgar, Independence, MO, Gregory Leyh, Kansas City, MO, for Plaintiff.

M. Waren McCamish, Williamson & Cubbison, Kansas City, MO, John C. Noonan, Teresa L. Clark, Stinson, Morrison, Hecker, LLP, Kansas City, MO, Stanley D. Davis, Shook, Hardy & Bacon, L.L.P. Kansas City, MO, Junius C. McElveen, Jr., Jones, DAy, Reavis & Pogue, Washington, DC, Sydney Bosworth McDole, William E. Marple, Thomas C. Pavlik, Clay Alfred Hartmann, Stephen B. Yeager, Catherine L. Bjorck, Jones, Day, Reavis & Pogue, Dallas, TX, Stephen J. Kaczynski, Michael A. Nims, Paul G. Crist, Randal S. Baringer, Jones, Day, Reavis & Pogue, Cleveland, OH, Roger D. Stanton, Berkowitz, Feldmiller, Stanton, Brandt, Williams & Stueve, LLP, Prairie Village, KS, for R.J. Reynolds Tobacco Co., Inc.

James D. Griffin, Blackwell, Sanders, Peper & Martin, LLP, Kansas City, MO, Frank C. Woodside, III, Mary-Jo Middelhoff, Dinsmore & Shohl LLP, Cincinnati, OH, Bruce G. Sheffler, James Mirro, Pater K. Eck, Nicholas Booke, Chadbourne & Parke, LLP, New York City, Roger W. Warren, Sanders, Conkright & Warren, LLP, Kansas City, MO, James M. Warden, Warden Triplett Grier, Overland Park, KS, for The American Tobacco Co., Brown and Williamson Tobacco Corp.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

On February 22, 2002, a jury rendered a verdict in favor of plaintiff David Burton against R.J. Reynolds Tobacco Company ("Reynolds") and American Tobacco Company ("American")¹, awarding compensatory damages against both Reynolds and American and authorizing an award of punitive damages against Reynolds. Both Reynolds (Doc. 653) and American (Doc. 655) request that the court set aside the jury's verdict and enter judgment as a matter of law in favor of defendants pursuant to Federal Rule of Civil Procedure 50(b) or, alternatively, order a new trial pursuant to Federal Rule of Civil Procedure 59.

Reynolds and American advance numerous arguments in support of their motions. The court has carefully considered each argument in turn and rejects them for the reasons set out more fully below. In summary form, however, the court believes that the jury's verdict was well grounded in the evidence and the law and should be upheld.

The evidence presented at trial was such that a reasonable jury was entitled to find that the defendants had or should have had knowledge that the cigarettes they manufactured and sold to Mr. Burton and the world at large were addictive and caused peripheral vascular disease; that they failed to warn the public, including Mr. Burton, of these dangers before the 1969 warning preemption took effect; that they failed to test their products to ascertain the full hazardous nature of them as regards addiction and peripheral vascular disease; and that they set out on a very successful campaign, beginning in the 1950s, at or before the time Mr. Burton began to take up smoking, to conceal from the public, including Mr. Burton, the true hazardous nature of cigarettes, including specifically that they are addictive and cause peripheral vascular disease. These facts are sufficient to support the jury's verdict in all of its particulars. As a result, the defendants' motions are denied.

I. Standards

A. Judgment as a matter of law

Judgment as a matter of law under Rule 50(b) "should be cautiously and sparingly granted," Black v. M & W Gear Co., 269 F.3d 1220, 1238 (10th Cir.2001), and is appropriate only if the evidence, viewed in the light most favorable to the nonmoving party, "points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion." Sanjuan v. IBP, Inc., 275 F.3d 1290, 1293 (10th Cir.2002). In determining whether judgment as a matter of law is proper, the court may not weigh the evidence, consider the credibility of witnesses, or substitute its judgment for that of the jury. Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1241 (10th Cir.2001).

In essence, the court must affirm the jury verdict if, viewing the record in the light most favorable to the nonmoving party, it contains evidence upon which the jury could have properly returned a verdict for the nonmoving party. Roberts v. Progressive Independence, Inc., 183 F.3d 1215, 1219-20 (10th Cir.1999) (citing Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1546 (10th Cir.1996)). Conversely, the court must enter judgment as a matter of law in favor of the moving party if "there is no legally sufficient evidentiary basis ... with respect to a claim or defense ... under the controlling law." Deters v. Equifax Credit Information Servs., Inc., 202 F.3d 1262, 1268 (10th Cir.2000) (quoting Harolds, 82 F.3d at 1546-47).

B. Motion for a new trial

A motion for a new trial made on the ground that the jury's verdict is against the weight of the evidence is committed to the sound discretion of the trial court. Veile v. Martinson, 258 F.3d 1180, 1188 (10th Cir.2001) (citing Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1125 (10th Cir.1995)). The evidence is viewed in the light most favorable to the plaintiff. Macsenti v. Becker, 237 F.3d 1223, 1235 (10th Cir.2001). The "inquiry focuses on whether the verdict is clearly, decidedly or overwhelmingly against the weight of the evidence." Veile, 258 F.3d at 1188 (citing Getter, 66 F.3d at 1125). In assessing the propriety of granting a new trial, the court must bear in mind that "determining the weight to be given to the testimony, drawing inferences from the facts established, resolving conflicts in the evidence, and reaching ultimate conclusions of fact" are functions within the sole province of the jury. Id. at 1190-91 (quoting Thunder Basin Coal Co. v. Southwestern Pub. Serv. Co., 104 F.3d 1205, 1212 (10th Cir.1997)).

A new trial based upon an erroneous evidentiary ruling is warranted only if that error prejudicially affected the substantial rights of a party. Fed.R.Civ.P. 61; Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1020 (10th Cir.2000). Evidence admitted in error is prejudicial only "if it can be reasonably concluded that with or without such evidence, there would have been a contrary result." Sanjuan v. IBP, Inc., 160 F.3d 1291, 1296 (10th Cir.1998).

II. Arguments made jointly by defendants in their motions²

Defendants argue in their motions that there was insufficient evidence for a reasonable jury to have found in plaintiff's favor on the claims for negligent failure to warn, fraudulent concealment and negligent testing and that plaintiff's claims for fraudulent concealment and negligent testing fail to state a claim under Kansas law. Defendants also argue that the evidence was overwhelming that plaintiff should have known by 1992 that he was addicted to smoking and that, therefore, no reasonable jury could have rejected the statute of limitations defense. In the alternative, defendants argue that they should be granted a new trial because the court erred in its evidentiary rulings.

A. Negligent failure to warn

With respect to plaintiff's failure to warn claim, defendants argue that the evidence presented at trial established that defendants' failure to warn Mr. Burton of the dangers of smoking did not cause Mr. Burton's addiction and peripheral vascular disease (PVD), that plaintiff was required to present expert testimony about the feasibility, adequacy and effectiveness of a proposed warning, that, had Mr. Burton heeded the federally mandated warnings, he would not have developed PVD, that plaintiff did not rebut the presumption that Reynolds issued sufficient warnings between January 1, 1966, and July 1, 1969, because of its compliance with federal law, that defendants did not have a duty to warn about the risk of developing PVD because it was not known prior to 1969 that smoking causes PVD, and that defendants did not have a duty to warn about the risk of addiction because the risk was well known before plaintiff started smoking in 1950.

1. Insufficient evidence of causation

Defendants argue that the evidence presented at trial established that defendants' failure to warn Mr. Burton that smoking causes addiction and PVD did not cause plaintiff's injuries. Under Kansas law, a manufacturer's failure to provide an adequate warning creates a rebuttable presumption of causation. Richter v. Limax Int'l, Inc., 45 F.3d 1464, 1471-72 (10th Cir.1995). Thus, the burden falls to defendants to rebut the presumption of causation.³

Defendants argue that the evidence presented at trial showed that no matter what warning was issued to Mr. Burton, he would have continued to smoke Camel cigarettes, become addicted and develop PVD. In support, defendants point to the cross-examination of Mr. Burton:

Q: Now, you were going to smoke cigarettes, Mr. Burton, no matter what anyone said because you liked them, correct?

A: Yes.

Plaintiff argues that Mr. Burton would never have started smoking if he had been warned about the dangers of addiction and PVD and points to Mr. Burton's statement made during direct examination:

Q: All right, Mr. Burton, let me take you back to when you were 14. If someone could have shown you this when you were 14, do you believe you would have ever started smoking?

A: No.

Plaintiff also points to testimony by Mr. Burton that he quit smoking after a doctor told him that he would lose his arms if he continued to smoke.

Because of the presumption of causation under Kansas law, defendants are entitled to judgment as a matter of law only if they come forward with evidence rebutting the presumption of causation and the evidence regarding causation presented at trial "points but one way and is susceptible to no...