Evans v. Lorillard Tobacco Co., SJC–11179.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtGANTS
Citation990 N.E.2d 997,465 Mass. 411
PartiesWillie EVANS, executor, v. LORILLARD TOBACCO COMPANY.
Docket NumberSJC–11179.
Decision Date11 June 2013

465 Mass. 411
990 N.E.2d 997

Willie EVANS, executor,1


Supreme Judicial Court of Massachusetts,

Submitted Dec. 3, 2012.
Decided June 11, 2013.

[990 N.E.2d 1005]

Paul F. Ware, Jr. (Kevin P. Martin & Andrew J. McElaney, Jr., with him), Boston, for the defendant.

Michael D. Weisman (Thomas Frisardi with him), Boston, for the plaintiff.

The following submitted briefs for amici curiae:

Robin S. Conrad, Kate C. Todd, & Lisa S. Blatt, of the District of Columbia, & Carolyn A. Pearce for Chamber of Commerce of the United States of America.

Hugh F. Young, Jr., of Virginia, & David R. Geiger & Creighton Page for Product Liability Advisory Council, Inc.

Richard A. Samp, of the District of Columbia, & Donald R. Pinto, Jr., for Washington Legal Foundation.

Ellen Vargyas, of the District of Columbia, & Lisa G. Arrowood & Katherine A.K. Mumma for American Legacy Foundation & others.

Michael B. Elefante for Tobacco Control Legal Consortium.

Steven J. Phillips & Victoria Phillips, of New York, & Christopher Weld, Jr., Edward Foye, David C. Strouss, & Michael A. Lesser for Kathleen Donovan & another.

Emily G. Coughlin & Cynthia M. Kopka for Massachusetts Defense Lawyers Association.

Timothy C. Kelleher, III, & J. Michael Conley for Massachusetts Academy of Trial Attorneys.



[465 Mass. 414]Marie R. Evans (Marie) died in 2002, at the age of [465 Mass. 415]fifty-four, from small cell lung cancer caused by smoking cigarettes. A jury found that the defendant, Lorillard Tobacco Company (Lorillard), the designer and manufacturer of Newport brand cigarettes, caused her wrongful death based on various theories of liability: breach of the implied warranty of merchantability because of design defect and inadequate warning of Newport cigarettes' health hazards and addictive properties; negligence in the design, marketing, or distribution of Newport cigarettes; negligent distribution by giving free samples of Newport cigarettes to minors; and negligent performance of a duty Lorillard voluntarily undertook in 1954 to research the health hazards of smoking and disclose accurate information regarding the results of that research to the smoking public. As to the negligence claims, the jury found Marie also to be negligent, and apportioned thirty per cent of the comparative negligence to her. The jury awarded $21 million to her son, Willie Evans (plaintiff), for the loss of his mother's companionship, comfort, and counsel; and $50 million to Marie's estate for her conscious pain and suffering.2 The jury also found that Lorillard was grossly negligent and acted in a manner that was malicious, wilful, wanton, or reckless, and awarded punitive damages in the amount of $81 million. The judge found that Lorillard had violated G.L. c. 93A, § 2, but did not award any additional compensatory or punitive damages for its violation, finding that any further award of damages would be “duplicative” of the jury's award.

[990 N.E.2d 1006]

Following trial, Lorillard moved for judgment notwithstanding the verdict, a new trial, remittitur, and amendment of the G.L. c. 93A decision. The judge denied the posttrial motions except for the motion for remittitur, which she allowed in part, reducing the amount of compensatory damages to the plaintiff to $10 million, and to Marie's estate to $25 million, but denying any remittitur as to punitive damages. The plaintiff accepted the remittitur, Lorillard appealed from the judgment, and we granted the plaintiff's application for direct appellate review.

We affirm the judgment only in part. We conclude that the jury were adequately instructed regarding the claim of wrongful [465 Mass. 416]death based on the breach of the implied warranty of merchantability, that the evidence supports the jury's verdict finding such a breach, that this breach alone supports the jury's finding of wrongful death, and that the errors at trial did not deny Lorillard a fair trial as to this claim. But we conclude that the jury were not adequately instructed regarding the claim of wrongful death based on the theories of negligent design and marketing, and that the jury's findings on these theories must be vacated. Because the verdict form asked the jury to determine whether Marie's wrongful death was caused by Lorillard's negligence, and did not request separate findings of causation based on each theory of negligence, we must also vacate the jury's finding that Marie's wrongful death was caused by Lorillard's negligence because the jury may have found that Marie's death was caused by negligent design or marketing, rather than negligent failure to warn or the negligent distribution of cigarettes to minors. We also conclude that, even if Lorillard did not honor its public commitment in 1954 to “accept an interest in people's health as a basic responsibility, paramount to every other consideration in our business,” Lorillard did not, by making this statement, voluntarily undertake a legal duty whose negligent breach provides a separate ground to find wrongful death. Because the jury's award of compensatory damages, as reduced by the remittitur, adequately rests on the finding of breach of the implied warranty of merchantability, we affirm that award. However, we vacate the award of punitive damages because it may have been tainted by the errors regarding the theories of negligent design and marketing and the breach of a voluntarily undertaken duty, and we remand the case for a new trial on the issue of punitive damages.

We also vacate the judgment arising from the judge's finding that Lorillard committed unfair or deceptive acts or practices in the conduct of trade or commerce, in violation of G.L. c. 93A, § 2 (§ 2). We conclude that the judge erred in finding that Lorillard voluntarily undertook a legal duty through its public commitment in 1954, and that the judge improperly applied the doctrine of offensive collateral estoppel against Lorillard by adopting over thirty-eight findings from a Federal racketeering case against Lorillard and other cigarette manufacturers. In [465 Mass. 417]addition, because the judge found that Lorillard “was negligent in the design, marketing, and/or distribution of Newport cigarettes” (emphasis added), the judge's finding of negligence was potentially based exclusively on a theory of either negligent marketing or distribution, and not on a theory of negligent design. However, any negligence in Lorillard's marketing or distribution of its cigarettes to minors could not have caused injury to Marie after 1979, because she was an adult by 1979. Because these various errors, when considered cumulatively, may have affected the judge's ultimate determination that Lorillard caused injury to Marie after 1979 through its violation of § 2, we conclude

[990 N.E.2d 1007]

that the prudent course is to vacate the judgment on the plaintiff's claim under c. 93A and remand the case to the judge. On remand, the judge shall determine whether, based solely on the relevant evidence presented at trial, Lorillard violated § 2, and, if liability is found under G.L. c. 93A, § 9, what actual damages should appropriately be awarded to Marie's estate for injury suffered by her that was caused by the § 2 violation. If the judge finds a violation of § 2, the judge shall also determine whether the violation was wilful or knowing and, if so, whether actual damages should be doubled or trebled in accordance with G.L. c. 93A, § 9(3).3

Background. Because Lorillard contends that the evidence is insufficient as a matter of law to sustain the jury's verdict, we summarize the evidence at trial in the light most favorable to the plaintiff. We reserve our recitation of some of the evidence for our analysis of Lorillard's specific claims of error.

1. Marie's smoking history. In 1960, when Marie was thirteen years old, she began smoking Newport cigarettes. She started smoking cigarettes because she saw other people smoking “and they looked attractive doing it,” and because “[i]t made you grown up, made you feel like an adult.” 4 She testified that, when she was a child, “there would be campaigns going on for [465 Mass. 418]Newport”; they had “free giveaways” of cigarettes after school in a playground in the Orchard Park neighborhood of the Roxbury section of Boston, where she grew up. “So I would stand out there and get free cigarettes. That's how I started smoking.” The “free giveaways” occurred “quite a bit; maybe about fifty times.” She smoked Newport cigarettes because she “had free access to them,” “[t]hey were pretty packaged,” and “[t]hey were always available.” Marie testified that, at least in the early years of her smoking, she felt that she received certain benefits from cigarette smoking: she enjoyed the taste and aroma of the cigarette, smoking helped her relieve stress and anxiety, smoking helped keep her alert, smoking helped her keep her weight under control, and smoking helped her fit in socially with her friends.

When she was a child and teenager, she heard people refer to cigarette smoking as an addiction. She remembered the 1964 United States Surgeon General's report describing cigarette smoking as habit forming and as a cause of lung cancer. However, she testified that she was not convinced by these statements:

“[I]t was, you know, one of those two sides to every story. It was like, one day it would come out saying it was bad for you. The next day it was good for you. And it was kind of always a debate going on whether or not it caused cancer or didn't, or if it was something else. And so it became something that you really didn't rely on anyone's opinion as to being the true cause of what causes cancer.”

As an adult, Marie smoked an average of thirty Newport cigarettes each day—one and one-half packs of cigarettes. She was so addicted to cigarettes that she

[990 N.E.2d 1008]

would smoke within five minutes of waking...

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