Haglund v. Philip Morris, Inc.

• Decision Date: 18 May 2006
• Citation: 847 N.E.2d 315,446 Mass. 741
• Parties: Brenda HAGLUND, executrix,<SMALL><SUP>1</SUP></SMALL> v. PHILIP MORRIS INCORPORATED.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

847 N.E.2d 315

446 Mass. 741

Brenda HAGLUND, executrix,¹ v. PHILIP MORRIS INCORPORATED.

Supreme Judicial Court of Massachusetts, Worcester.

Argued February 7, 2006.

Decided May 18, 2006.

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Stephen R. Fine (Charles M. Healey, III, with him) for the plaintiff.

Paul E. Nemser, Boston (Roberto M. Braceras with him) for the defendant.

The following submitted briefs for amici curiae:

David R. Geiger, Ashley A. Weaver, Boston, & Jonathan M. Harrison for Product Liability Advisory Council, Inc.

Edward L. Sweda, Jr., Boston, for Tobacco Control Resource Center, Inc.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

MARSHALL, C.J.

We determine in this case whether a cigarette manufacturer in a wrongful death action predicated on breach of the warranty of merchantability may assert as an affirmative defense that the decedent smoker's use of cigarettes was "unreasonable." See Correia v. Firestone Tire and Rubber Co., 388 Mass. 342, 356, 446 N.E.2d 1033 (1983) (in warranty liability action, "the user's negligence does not prevent recovery except when he unreasonably uses a product that he knows to be defective and dangerous") (Correia defense).²

Following the death from lung cancer of her husband, Stephen C. Haglund (decedent), a long-time smoker, Brenda Haglund filed a wrongful death product liability action against Philip Morris Incorporated (Philip Morris) pursuant to G.L. c. 106, § 2-314(2)(c).³ In denying all liability, Philip Morris asserted, among other things, that the decedent's decision to begin and continue smoking its cigarettes constituted "unreasonable use" pursuant to our holding in Correia, supra. The plaintiff moved for summary judgment to preclude assertion of the Correia defense, arguing that the Correia defense should, as a matter of law, be unavailable because a cigarette is an inherently dangerous product that causes injury when used for its ordinary purpose. The judge treated the summary judgment motion as a motion to strike, denied it, and dismissed the action sua sponte. The plaintiff appealed, and we granted her application for direct appellate review.⁴

We affirm the judge's denial of the motion to strike and reverse the judgment of dismissal. As we explain more fully below, the Correia defense presumes that the product at issue is, in normal circumstances, reasonably safe and capable of being reasonably safely used, and therefore that the consumer's unreasonable use of the product he knows to be defective and dangerous is appropriately penalized. Here, however, both Philip Morris and the plaintiff agree that cigarette smoking is inherently dangerous and that there is no such thing as a safe cigarette. Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes. Thus the Correia defense, which serves to deter unreasonable use of products in a dangerous and defective state, will, in the usual course, be inapplicable.

However, we also agree with Philip Morris that, in certain conceivable scenarios, an individual consumer's behavior may be so overwhelmingly unreasonable in light of the consumer's knowledge about, for example, a specific medical condition from which he suffers, that the Correia defense may be invoked. The jury determine unreasonable use from the specific factual context of each case, and we are loathe to foreclose assertion of the defense as a matter of law in every cigarette-related product liability action. Because the plaintiff's motion for summary judgment on the Correia defense was brought early in the litigation, we reverse the judgment of dismissal to afford the parties the opportunity to develop more fully the evidence supporting their claims and defenses.

We summarize the relevant background.

1. Background. The decedent was born on July 22, 1948, and began smoking in 1973. The plaintiff alleged that, initially, the decedent smoked only Philip Morris's Marlboro brand cigarettes, through which he became addicted to nicotine. She also alleged that the decedent tried several times to quit smoking cigarettes. The decedent died as a result of lung cancer on May 10, 2000.

The plaintiff filed the present wrongful death action in Middlesex County in March, 2001; it was transferred to Worcester County in November, 2001, pursuant to a joint motion to sever and suspend case processing.⁵ The complaint alleged two counts: breach of the implied warranty of merchantability and punitive damages. In relevant part, the plaintiff claimed the decedent used cigarettes "exactly as intended and foreseen" by the defendant, that his death was the "direct result" of his addiction to smoking Marlboro cigarettes, that Marlboro cigarettes were defectively designed because, in 1973, when the decedent began smoking, Philip Morris could have implemented, but did not, "a safer reasonable alternative design: a non-addictive cigarette through nicotine extraction," and that "[a] cigarette without nicotine would be non-addictive and would [have] enable[d] the smoker to quit smoking at will, or reduce use below disease threshold levels."

In its answer, Philip Morris denied all liability. It stated that "nicotine in cigarette smoke is addictive and that cigarette smoking is addictive," that "nicotine plays an important role in cigarette smoking," that "it can be very difficult to quit smoking," that "the technology exists to reduce, but not completely remove, the nicotine content in tobacco," and that such technology existed prior to 1973, when the decedent began smoking. Philip Morris also averred that the risks of cigarette smoking are widely known, that individual decisions whether and how much to smoke vary from individual to individual, that no consensus exists in the scientific community about what constitutes a safer alternative cigarette design, and that the company's attempt to market a reduced nicotine cigarette proved unsuccessful. Philip Morris interposed forty affirmative defenses, including, as its thirty-fourth defense, the Correia defense that is at the heart of this appeal.⁶

On September 1, 2004, the plaintiff sought summary judgment to preclude Philip Morris from asserting the Correia defense.⁷ The grounds for preclusion were, first, that the Correia defense is inapplicable where the product, cigarettes, "are the only consumer product in existence which when used exactly as intended, and in the complete absence of any mishaps, causes injury," and, second, the doctrine of quasi estoppel. See, e.g., Uccello v. Gold'n Foods, Inc., 325 Mass. 319, 328, 90 N.E.2d 530 (1950). The plaintiff "concede[d] and . . . stipulate[d]" in her summary judgment motion that, "if [Philip Morris] is permitted to assert the Correia defense in this case, the Defendant will prevail on the basis of this defense." After Philip Morris filed its opposition, and in an apparent attempt to remove all factual controversy from the case, the plaintiff filed the following stipulation: "Plaintiff hereby stipulates that at all relevant times hereto [the] decedent was fully aware of the risks of cigarette addiction and lung cancer from smoking cigarettes and acted unreasonably in starting to smoke cigarettes and continuing to smoke cigarettes."⁸

In October, 2004, a Superior Court judge, treating the plaintiff's summary judgment motion as a motion to strike, denied it. She entered, sua sponte, a judgment of dismissal on the basis of Philip Morris's assertion of the Correia defense and the plaintiff's stipulation.

2. Discussion. We have not previously been asked to address the question posed by the plaintiff: whether the Correia defense is unavailable as a matter of law to cigarette product liability claims based on a theory of breach of the implied warranty of merchantability. Because the Correia defense is part of a comprehensive scheme of warranty liability, we begin with an overview of the relevant law.

a. Implied warranty of merchantability. The plaintiff's claim for breach of the implied warranty of merchantability is governed principally by G.L. c. 106, § 2-314(2) (c). See note 3, supra. We have previously noted that, as a matter of social policy, the warranty of merchantability imposes a "special responsibility" on the seller toward "any member of the consuming public who may be injured" by its product (emphasis added). Correia v. Firestone Tire and Rubber Co., 388 Mass. 342, 354-355, 446 N.E.2d 1033 (1983), quoting Restatement (Second) of Torts § 402A comment c (1965). Warranty liability is "fully as comprehensive as the strict liability theory of recovery that has been adopted by a great many other jurisdictions," Back v. Wickes Corp., 375 Mass. 633, 639, 378 N.E.2d 964 (1978), and "congruent in nearly all respects with the principles expressed in Restatement (Second) of Torts § 402A (1965)." Id. at 640, 378 N.E.2d 964. See Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 15 (1st Cir. 2001) ("Actions under Massachusetts law for breach of the implied warranty of merchantability are the functional equivalent of strict liability in other jurisdictions"). The stringent responsibility placed on sellers under our warranty scheme is justified on the ground that:

"[T]he public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons who afford it are those who market them. . . ."

Correia v. Firestone Tire and Rubber Co., supra, quoting Restatement (Second) of Torts, supra at § 402A...