Rogers v. R.J. Reynolds Tobacco Co.
| Decision Date | 06 October 1988 |
| Docket Number | No. 09-87-120,09-87-120 |
| Citation | 761 S.W.2d 788 |
| Parties | Prod.Liab.Rep. (CCH) P 12,003 I.D. ROGERS, et al., Appellants, v. R.J. REYNOLDS TOBACCO COMPANY, Philip Morris, Incorporated, Brown & Williamson Tobacco Corporation, Lorillard, Inc., Liggett & Myers Tobacco Co., Inc., Liggett Group, Inc., the Tobacco Institute, Inc., and the Council for Tobacco Research--U.S.A., Inc. CV. |
| Court | Texas Court of Appeals |
Appeal from the granting of a summary judgment in favor of R.J. Reynolds Tobacco Company; Philip Morris, Incorporated; Brown & Williamson Tobacco Corporation; Lorillard, Inc.; Liggett & Myers Tobacco Co., Inc.; Liggett Group, Inc.; The Tobacco Institute, Inc., and The Council for Tobacco Research--U.S.A., Inc.
I.D. Rogers, surviving husband, individually and as Independent Executor of the Estate of Marjorie Helen Rogers, Deceased, and Linda Helen Harris and Ira Claborn Rogers, the surviving children of Marjorie Helen Rogers (their deceased mother), are the Appellants.
Basically, this proceeding was a products liability suit in the District Court against six major American cigarette manufacturers. Their trade association was The Tobacco Institute, Inc., and their research and public relations organization was The Council for Tobacco Research--U.S.A., Inc. The pleadings were for money damages, arising from the lung cancer affliction and disease and the death of Marjorie Helen Rogers.
By a Second Amended Original Petition, the Appellants (Plaintiffs below) had asserted causes of action against The American Tobacco Company, alleging it to be the manufacturer of the cigarettes exclusively smoked by Mrs. Rogers. The American Tobacco Company is not a party to this appeal, it having been severed by the trial court. The Plaintiffs below alleged that the six major American cigarette manufacturers entered into an averred civil conspiracy and a concert of action. Plaintiffs' pleadings averred that the purposes of these civil conspiracies and concerts of action were to suppress and conceal certain scientific and medical information relating to cigarette smoking and resulting disease; and that, through these conspiracies and concerted actions, the Big-6 manufacturers were able to take and project a unified and uniform position on the question of cigarette smoking's relationship to disease. Also, these alleged conspiracies and concerts of actions enabled the Big-6 to take a solid, frontal position that smoking-caused disease had not been established. Hence, Plaintiffs say, there was a failure to issue warnings in connection with cigarette and tobacco products of the Big-6.
In further averments, the Plaintiffs pleaded that, to carry out these purposes of their conspiracy and concerts of action, the tobacco companies, referred to as Big-6, formed two organizations; namely, The Council for Tobacco Research--U.S.A., Inc., and The Tobacco Institute, Inc. Further, the Rogerses aver that these two last-named organizations, along with Big-6, have carried out such purposes since the years 1954 and 1958. The Rogerses pleaded that Marjorie Rogers would likely have quit smoking timely and, thereby, would have avoided contracting lung cancer. Marjorie's cancer would not have occurred had not all of the Defendants engaged in and carried out such conspiratorial conduct. It is stipulated below that Mrs. Rogers smoked, for the purposes of this appeal, only cigarettes that were manufactured by the American Tobacco Company, which is not a party to the suit before us on this appeal.
Marjorie was born in July of 1925. She began trying cigarette smoking at about the age of 9 or 10. She was smoking regularly by age 16. From sometime in the early 1950's through 1982, Marjorie smoked from one pack to about 1 1/2 packs of cigarettes per day.
Prior to 1966, the cigarette companies did not give any warnings that cigarette smoking could cause lung cancer or other diseases. A warning was placed on the cigarette packages in 1966. At that time, Marjorie, apparently, took some comfort in that the warning said the cigarettes may be harmful, rather than stating that cigarettes are definitely harmful.
Marjorie was diagnosed as having lung cancer in November of 1982. She was then able to, and did, quit smoking. She died of lung cancer on December 17, 1983.
I.D. Rogers, by deposition testimony, stated that, at one time, his opinion was that Marjorie was addicted and I.D. did not think that Marjorie could quit smoking. Upon further questioning, he stated that he did not know whether or not she could quit. I.D. signed and executed an affidavit in which he swore that he and Marjorie had no idea that his wife's risk of dying from cigarette smoking was 25% or possibly higher and that, if they had been informed of this high risk, then Marjorie's addiction could have been defeated. This testimony raised a genuine issue as to a material fact. See Randall v. Dallas Power & Light Company, 752 S.W.2d 4 (Tex.1988).
I.D. Rogers was the husband of Marjorie for over 40 years. He swore that he could not recall his wife having said, at any time, that she had read any articles indicating that there were benefits from smoking. When asked if he had seen anything that might indicate to him that there were benefits from smoking, Mr. Rogers answered that inducing young people to think that they would elevate their social life or help them be accepted in a crowd came to mind; yet, he had never seen anything specific in writing to that effect. He testified that he was not familiar with The Council for Tobacco Research--U.S.A., Inc., and that he did not recall of ever having read any materials put out by The Council for Tobacco Research (CTR). Marjorie Rogers had apparently never mentioned to her husband anything about reading any materials published by either The Tobacco Institute (TI) or The Council for Tobacco Research. Mr. Rogers was not aware of Marjorie's reading any article or written material put out, or published, by either of them. Mr. Rogers could not testify as to what ads, if any, his wife had seen or heard about when she was 8, 9, 10, 11, 12, 13, 14 or 15 years old. He could not recall any particular ads about cigarettes, whether on billboards, in magazines or otherwise, during their early married life.
In the 1960's, he did recall, at one time or another, a certain Marlboro ad with a man on a horse, with a lariat. At his deposition that was the only advertisement that Rogers could recall. The Marlboro ad, he said, was displayed in magazines and newspapers and he did not know if his wife had seen that particular ad. He did recall quite a number of ads in the 1970's and the 1980's, but he did not pay a great deal of attention to them and they did not affect him.
It is clear that the decedent began smoking cigarettes sometime about, or prior to, 1940, which was more than a decade before the organization of CTR (Council for Tobacco Research) or CTR's predecessor. Mr. Rogers testified that his wife had told him that she had begun smoking because older people were doing it and smoking was just the thing to do. She had heard over the radio that L.S.M.F.T., or something or other, was fine tobacco and that she just kind of picked up on that slogan. Rogers recalled that it was probably sometime in the early 60's that Marjorie felt that she should cut down on smoking. The reason was that the news media began to publicize that cigarettes were hazardous to peoples' health and she was made aware of this information; then she realized that she should cut down and she would like to quit. Rogers continued:
An affidavit was signed and executed by a social psychologist, who was or is a Director of Social Psychology/Behavioral Medicine Research Group at the University of Houston. In Evans' affidavit, he stated that, in his opinion, there was a strong likelihood that Marjorie would have ceased smoking in 1965 if she had understood fully the dangerous risk of the disease and death resulting from cigarette smoking. These risks were supported by some prevailing views at that time that were held in the medical community and the scientific community generally. We quote from Dr. Evans' affidavit:
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