Main v. R.J. Reynolds Tobacco Co.
| Decision Date | 08 April 2022 |
| Docket Number | 20-P-459 |
| Parties | Jonathan MAIN, personal representative, v. R.J. REYNOLDS TOBACCO COMPANY & another. |
| Court | Appeals Court of Massachusetts |
Paula S. Bliss (Steven Rotman also present), for the plaintiff.
Scott A. Chesin, for the defendants.
Present: Wolohojian, Sullivan, & Ditkoff, JJ.
At issue in this tobacco liability case is whether the judge correctly instructed the jury on the plaintiff's burden of proof for his breach of warranty claim, which was based on a theory of design defect. "A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe" (ellipses omitted). Evans v. Lorillard Tobacco Co., 465 Mass. 411, 424, 990 N.E.2d 997 (2013), quoting Restatement (Third) of Torts: Products Liability § 2 (b), at 14 (1998) (Third Restatement). The instruction at issue in this case told the jury that the plaintiff had to prove that a reasonable alternative design was available before Richard Main4 became addicted to cigarettes. This instruction was incorrect. Instead, the jury should have been instructed that the plaintiff bore the burden to prove that "a reasonable alternative design ‘was, or reasonably could have been, available at time of sale or distribution,’ " which, in this case, was a period of several decades. Evans, supra, quoting Third Restatement § 2 comment d, at 19.
Although the plaintiff did not object to the instruction before the jury retired to deliberate, see Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974), we conclude the error should be deemed preserved because the judge employed a procedure that did not give the plaintiff an opportunity to object timely either before or after the instruction was given. We further conclude that the erroneous instruction was prejudicial because it foreclosed the jury from considering the evidence that a reasonable alternative design was or reasonably could have been available at some point during the many years Richard smoked. Accordingly, we vacate so much of the judgment as entered in favor of the defendants on the plaintiff's breach of warranty claim. We otherwise affirm the judgment.5
Background. In 1963 or 1964, when Richard was twelve or thirteen years old, he began smoking Kent cigarettes, which he obtained as free sample packs that were manufactured and distributed by the defendant R.J. Reynolds Tobacco Company (as successor to Lorillard Tobacco Company) (R.J. Reynolds). These free sample packs were distributed as part of a program designed to entice young people to smoke cigarettes. After about six months of smoking the Kent free samples, Richard began buying and smoking Marlboro cigarettes, which were manufactured by the defendant Philip Morris USA, Inc. (Philip Morris). By the time Richard reached the age of sixteen or seventeen, he was smoking a pack of cigarettes per day. His smoking continued to increase, and he ended up smoking two to three packs per day for approximately twenty years. After several unsuccessful attempts, Richard finally managed to quit on New Year's Eve in 1987, at the age of thirty-six, having smoked for twenty-three years. Thirty years later, Richard died of a type of lung cancer
associated with cigarette smoking.
This suit was brought by Richard while he was still alive; after his death, it has been pursued by his son, Jonathan Main, as the representative of Richard's estate.6 As pertinent to this appeal, the suit alleges that the defendants breached the implied warranty of merchantability by manufacturing, selling, and distributing defectively designed cigarettes, and that Richard's death was caused by those design defects.
The plaintiff has from the start acknowledged, as the Supreme Judicial Court stated in Evans, that his breach of warranty claim requires that he prove that a reasonable alternative design was available. But the parties disagreed whether the plaintiff was required to prove that a reasonable alternative design was available before Richard became addicted to cigarettes in 1965 (as the defendants argue) or at any point during the period the defendants manufactured or distributed the cigarettes Richard smoked (as the plaintiff contends). The issue was presented to the judge in the defendants’ motion in limine, which sought to exclude all evidence regarding safer alternative designs after 1965 on the ground that such evidence was irrelevant and unfairly prejudicial.7 At the hearing on that motion, the plaintiff argued that Evans permitted evidence of alternative designs that may have either prevented or reduced Richard's risk of developing lung cancer
; therefore, any evidence of an available safer alternative design that would have reduced that risk while Richard was a smoker was admissible. The plaintiff also noted that he planned to present evidence of safer designs that would help an addicted smoker quit, arguing that the relevant issue was "design feasibility throughout the course of time that [Richard] was smoking that would have been safer for him" and "not just the addiction." After hearing the parties’ arguments, the judge denied the defendants’ motion. Although the judge did not spell out her reasons, the parties would have been justified in concluding that she denied the motion because she rejected the defendants’ reading of Evans.
Consistent with her ruling on the motion in limine, the judge permitted evidence from multiple expert witnesses regarding reasonable design alternatives both before and after the point in time at which Richard become addicted to cigarettes.8 More specifically, the plaintiff offered evidence of four safer alternative designs: a very low nicotine cigarette; a less inhalable cigarette; a cigarette utilizing technology to heat and not burn the tobacco; and a cigarette with some of the carcinogens removed. As we set out in more detail later, at least some of these alternative designs were technologically feasible before Richard started smoking. Others, however, were the result of ongoing developments and research thereafter.
After the close of evidence, the judge held a charge conference with counsel. Among other things, the defendants requested an instruction that "the [reasonable] alternative [design] must have been available before [Richard] became addicted" to cigarettes. Again, the plaintiff argued forcefully against such an instruction, and asked that the judge reexamine Evans because "requiring [the plaintiff to] prove that there was a reasonable alternative by the time [Richard] became addicted is not product liability law in Massachusetts." But the judge expressed her intention to instruct the jury that "the alternative design must ... have been available by the time the person developed an addiction," which she stated she based on her reading of Evans, although the judge acknowledged that she did not think Evans was particularly clear on the point.
Also during the charge conference, the judge outlined the procedure she would employ for the parties to lodge objections to the jury instructions after they were delivered to the jury. The judge stated that all objections to the instructions were required to be in writing, which she expected the parties to accomplish contemporaneously, and then handed to her at sidebar. She further explained:
The judge did not identify how the parties were to know the other side's objections. Nor did the judge's process incorporate a mechanism for the parties to lodge objections to the other side's requests or to the judge's rulings.
The following day, the judge delivered her final instructions to the jury. Contrary to what she had indicated during the charge conference, the judge did not instruct the jury that the plaintiff had the burden of proving a reasonable alternative design was available before Richard became addicted to cigarettes.9 The charge thus reflected what the plaintiff had argued Evans stood for.
When she concluded her charge, the judge called the parties to sidebar and asked whether they had any objections. The plaintiff had none. The defendants, however, handed written objections and requests to the judge. The record then reflects that there was a pause during which the judge read to herself the defendants’ written objections and requests. She then had the written objections marked for identification. Without further discussion, the judge gave two additional instructions to the jury, one relating to punitive damages (this instruction is not implicated in this appeal), and the following instruction (supplemental instruction):
The judge then immediately had the court officer sworn, and discharged the jury to deliberate.
Nothing in the record suggests or indicates that the defendants’ objections to the charge were shared with the plaintiff before the judge ruled on them. Nor did the judge inform the parties how she would supplement or amend her instructions before she actually provided the supplemental instruction to the jury. And she gave no opportunity to the plaintiff to object to her supplemental instruction either (a) before it was given (in fact, there is nothing to indicate that the plaintiff at that point even knew what the judge was going to do), or (b) before the jury were discharged to deliberate. The plaintiff lodged no objection to the supplemental instruction...
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