In re Tobacco Litigation
| Decision Date | 06 May 2004 |
| Docket Number | No. 31157.,31157. |
| Citation | 600 S.E.2d 188,215 W.Va. 476 |
| Court | West Virginia Supreme Court |
| Parties | In re TOBACCO LITIGATION (Medical Monitoring Cases). |
Scott S. Segal, Esq., Deborah L. McHenry, Esq., The Segal Law Firm, Charleston, for Petitioners.
Dennis C. Sauter, Esq., Gretchen M. Callas, Esq., Jackson & Kelly, Charleston, for R.J. Reynolds Tobacco Co.
W. Henry Jernigan, Esq., Dinsmore & Shohl, Charleston, Mark L. Silbersack, Esq., Dinsmore & Shohl, Cincinnati, OH, Pro Hac Vice for Brown & Williamson Tobacco Corp.
Mark E. Troy, Esq., Bailey & Wyant, Charleston, for Liggitt Group, Inc.
Pamela L. Campbell, Esq., David B. Thomas, Esq., Teresa K. Thompson, Esq., Allen, Guthrie, McHugh & Thomas, Charleston, for Philip Morris, Inc.
William Michael Greunloh, Esq., Frederick C. Baker, Esq., Motley Rice, LLC, Mount Pleasant, SC, Pro Hac Vice for Petitioners.
R. Scott Long, Esq., Hendrickson & Long, Charleston, for Petitioners.
Theodore Goldberg, Esq., David B. Rodes, Esq., Goldberg, Persky, Jennings & White, Pittsburgh, PA, Pro Hac Vice for Petitioners.
Jeffrey L. Furr, Esq., David V. Patton, Esq., Marilyn R. Forbes, Esq., Amy L. Bircher, Esq., Womble, Carlyle, Sandridge & Rice, Winston-Salem, NC, Pro Hac Vice for R.J. Reynolds Tobacco Co.
Joseph Patrick Archie, Esq., A. Elizabeth Blackwell, Esq., Andrew R.C. Gaddes, Esq., Sean P. Wajert, Esq., Dechert, Price & Rhodes, Philadelphia, PA, Pro Hac Vice for Philip Morris USA, Inc.
Michael J. Farrell, Esq., Farrell, Farrell & Farrell, LC, Huntington, for Lorillard Tobacco Company.
J. William Newbold, Esq., Bruce Ryder, Esq., Thompson Cobun, LLP, St. Louis, MO, Pro Hac Vice for Lorillard Tobacco Company.
In this appeal, we are asked to review a jury's verdict declining to require the manufacturers of certain tobacco-containing products to provide medical monitoring to individuals who were significantly exposed to the potentially harmful effects of smoking. As set forth below, we affirm a trial court order that upholds the jury's verdict.
This appeal involves a class action by certain West Virginia residents (hereinafter "appellants") against several manufacturers of tobacco-containing cigarettes (hereinafter "appellees"), alleging that those products were defective. Because of their exposure to tobacco smoke, the appellants sought the creation and funding by the appellees of a medical monitoring program for the early detection of two tobacco-related diseases: lung cancer, and chronic obstructive pulmonary disease ("COPD"). The appellants are residents of West Virginia who had not previously been diagnosed with those two diseases, and who had a minimum of a "five-pack-year history" of smoking.1
The trial court bifurcated the case into several phases,2 and in the first phase allowed the parties to present evidence on seven issues common to all appellants and appellees. The first six issues corresponded to the six elements of a cause of action for medical monitoring identified by this Court in Syllabus Point 3 of Bower v. Westinghouse Electric Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999), where we stated:
In order to sustain a claim for medical monitoring expenses under West Virginia law, the plaintiff must prove that (1) he or she has, relative to the general population, been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.
Applying Bower, the trial court established that the first six issues were:
The seventh and last issue that the parties were permitted to present evidence upon concerned whether the appellees' conduct in designing and selling cigarettes was willful and wanton, such that punitive damages might be awarded. A jury trial on these seven issues began on September 10, 2001, and concluded on November 14, 2001. At the close of the trial, the trial court granted the appellants' motion for judgment as a matter of law on the first two issues, ruling that the appellants (1) had been significantly exposed (2) to a proven hazardous substance. The jury deliberated on the remaining five issues, and found for the appellants on issues (4) and (6), concluding that the appellants had an increased risk of contracting lung cancer and/or COPD as a result of their exposure to cigarette smoke, and that medical monitoring procedures for the early detection of those diseases existed.
However, the jury found against the appellants on issues (3) and (5). The jury found that the appellees had not engaged in any tortious conduct, and found that the appellants had not established a necessity for medical monitoring. Bower requires that all six elements must be proven before recovery is available to any plaintiff. To say that one "needs no evidence to prove a medical monitoring cause of action" is a clear misstatement of the law.
The jury also found against the appellants on issue (7), finding no willful and wanton misconduct by the appellees.
The trial court entered judgment on the jury's verdict, and in an order dated March 18, 2002, denied the appellants' motion for a new trial. The appellants now appeal the trial court's order.
In Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995), this Court addressed the standard of review of a trial court's ruling on a motion for new trial. Tennant stated:
We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Tennant, 194 W.Va. at 104, 459 S.E.2d at 381. "Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).
Typically, when a case has been determined by a jury, the questions of fact resolved by the jury will be accorded great deference. "An appellate court will not set aside the verdict of a jury, founded on conflicting testimony and approved by the trial court, unless the verdict is against the plain preponderance of the evidence." Syllabus Point 2, Stephens v. Bartlett, 118 W.Va. 421, 191 S.E. 550 (1937). In accord, Syllabus Point 1, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963). See also Syllabus Point 4, Stenger v. Hope Natural Gas Co., 141 W.Va. 347, 90 S.E.2d 261 (1955) ( . ). Accordingly, "[i]n determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true." Syllabus Point 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736.
With these standards in mind, we proceed to consider the parties' arguments on appeal.
We begin our analysis by noting that the appellant is challenging a jury's verdict in favor of the appellees on three of seven issues. The jury concluded that the appellees did not engage in tortious conduct by designing, manufacturing and/or distributing a defective product; concluded that the appellees did not engage in willful or wanton misconduct; and concluded that the appellants had failed to establish that it was reasonably necessary to undergo periodic medical examinations as a result of their exposure to the appellees' products. Our analysis of the extensive trial record and elaborate briefs of the parties suggests that the appellant raises serious challenges that call into question the jury's findings on the first two issues; on the third issue, however, we believe that the jury's finding is supported by the evidence.
The appellants' arguments may be summarized in the following fashion. The appellants assert that the trial court...
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