Marsee v. U.S. Tobacco Co.

• Decision Date: 10 January 1989
• Docket Number: No. 86-2094,86-2094
• Citation: 866 F.2d 319
• Parties: , 27 Fed. R. Evid. Serv. 694, Prod.Liab.Rep.(CCH)P 12,023 Betty Ann MARSEE, as Administratrix of the estate of Marvin Sean Marsee, deceased, Plaintiff-Appellant, v. UNITED STATES TOBACCO COMPANY, a New Jersey corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 319

866 F.2d 319

57 USLW 2436, 27 Fed. R. Evid. Serv. 694,

Prod.Liab.Rep.(CCH)P 12,023

Betty Ann MARSEE, as Administratrix of the estate of Marvin

Sean Marsee, deceased, Plaintiff-Appellant, v. UNITED STATES TOBACCO COMPANY, a New Jersey corporation,

Defendant-Appellee.

No. 86-2094.

United States Court of Appeals, Tenth Circuit.

Jan. 10, 1989.

Mack Muratet Braly of Mack Muratet Braly & Associates, P.C., Tulsa, Okl., George W. Braly and Dania Deschamps-Braly, of Braly & Braly, Ada, Okl., of counsel, for plaintiff-appellant.

Alston Jennings of Wright, Lindsey & Jennings, Little Rock, Ark., Edwin J. Jacob and Timothy M. Finnegan of Jacob, Medinger & Finnegan, New York City, and Andrew M. Coats of Crowe & Dunlevy, Oklahoma City, Okl., for defendant-appellee.

Before SEYMOUR, SETH and ANDERSON, Circuit Judges.

SETH, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir. R. 34.1.8. The cause is therefore ordered submitted without oral argument.

The plaintiff, Betty Ann Marsee, brought this products liability action against the defendant, United States Tobacco Company, on behalf of the estate of her late son, Marvin Sean Marsee. Plaintiff alleged that defendant's snuff products caused her son to develop oral cancer which led to his early death. The case was tried to a jury which returned a verdict in favor of defendant after a five-week trial. On appeal the plaintiff challenges various evidentiary and discovery rulings made by the trial court.

It was undisputed at trial that Sean Marsee had used defendant's product, Copenhagen Brand Snuff, from the age of twelve until he developed cancer at the age of eighteen. It was estimated that Sean Marsee used four or more cans of the product per week during this six-year period. In April of 1983, Marsee was diagnosed with cancer of the right lateral border area of the tongue. Despite three operations the cancer spread throughout the oral cavity. Sean Marsee died nine months after his cancer was first diagnosed.

The trial turned on the issue of whether the decedent's cancer was caused by his use of the defendant's product. Extensive discovery took place before the five-week trial. The trial afforded plaintiff opportunity to introduce an impressive amount of evidence on the issue of causation. She called thirty-one witnesses, including fourteen experts, and introduced 140 exhibits. Despite this effort plaintiff was unable to convince the jury that defendant's product caused her son's cancer.

Given the scope and magnitude of the evidence presented at trial, this court's statements in Higgins v. Martin Marietta Corp., 752 F.2d 492, 498 (10th Cir.1985), are especially worthy of consideration:

"During a lengthy trial, the judge must make numerous rulings on evidence. Of necessity, these rulings must be made without any advance notice. Deference must be given to the trial judge who is most familiar with the circumstances surrounding the issues in question. 'The trial court's conduct of trial proceedings, including rulings on motions and objections, will not be disturbed on appeal unless it affirmatively appears from the record that the trial court abused its discretion.' [Citations omitted.]

"A jury verdict will only be set aside if manifest error affecting a substantial right of a party occurs or the litigant is deprived of a fair trial."

Because we find that plaintiff's contentions on appeal hold no merit, we affirm the trial court's entry of judgment in favor of defendant.

I.

Plaintiff first contends that the trial court erred by refusing to allow her to enter in evidence the videotaped deposition of Louis Kohley, a severely disfigured, post-surgical cancer patient. Plaintiff claims the deposition was probative of whether Sean Marsee's tongue cancer was caused by the use of snuff. Mr. Kohley's case was similar to Mr. Marsee's in many respects. Both men were young when they began using snuff, both were healthy and active in athletics, and both developed oral cancer after using the defendant's products for several years.

The trial court excluded the videotaped deposition under Fed.R.Evid. 403, citing the danger of unfair prejudice. This court has evinced a strong reluctance to upset a trial court's ruling on the admissibility of evidence under Fed.R.Evid. 403. "Challenges under Rule 403 call for balancing the probative value of and need for the evidence against the harm likely to result from its admission." McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1257 (10th Cir.1988). This balancing task "is one for which the trial judge, because of his familiarity with the full array of evidence in the case, is particularly suited." Id. (quoting Rigby v. Beech Aircraft Co., 548 F.2d 288, 293 (10th Cir.1977)). "The decision to exclude (or admit) evidence under this rule is within the sound discretion of the trial court, and will not be reversed absent a clear abuse of discretion." K-B Trucking Co. v. Riss International Corp., 763 F.2d 1148, 1155 (10th Cir.1985).

In this case, the trial court was well within its discretion in excluding the videotape from evidence. It found the probative value of the deposition to be almost nonexistent and stated:

"The fact that one other individual using smokeless tobacco also developed oral cancer similar to that suffered by Sean Marsee constitutes very little, if any, proof that smokeless tobacco caused Marsee's cancer."

Marsee v. United States Tobacco Co., 639 F.Supp. 466, 468 (W.D.Okla.1986). Courts have demonstrated a strong tendency to discount the probative value of evidence of similar instances of disease on the issue of causation when the disease involved is "widespread and commonly understood to be caused by many factors." Grenier v. Dow Chemical Co., 628 F.Supp. 1529, 1531 (D.Me.1986). See also Amatucci v. Delaware and Hudson Ry. Co., 745 F.2d 180, 184 (2d Cir.1984) (evidence of other engineers who had heart attacks excluded because it was irrelevant to show plaintiff's heart attack was caused by employment as an engineer); In re "Agent Orange" Product Liability Litigation, 611 F.Supp. 1223, 1252-53 (E.D.N.Y.1985) (evidence that 17 of the roughly 7,500 persons who develop Hodgkin's Disease each year were exposed to Agent Orange is not probative on issue of whether exposure to Agent Orange causes Hodgkin's Disease).

In the absence of any evidence that Mr. Kohley's oral cancer was caused by the use of snuff, the trial court correctly held that any inferences the jury could have drawn from his case would have been purely conjectural. The trial court then balanced the low probative value of the deposition against the high likelihood that it would unfairly prejudice the defendant. In his deposition, Mr. Kohley described in detail the painful course of his treatment for oral cancer, including the surgical removal of parts of his tongue, neck, jaw, and the floor of his mouth. His tongue was missing, as was his chin and part of his jaw. Speech was so difficult for Mr. Kohley that his mother had to interpret his testimony. The trial court held:

"The grim physical condition of Kohley, coupled with the similarities of the Kohley case to Marsee's, might well have led the jury to give the Kohley testimony greater weight than it was due on the issue of causation of oral cancer."

Marsee, 639 F.Supp. at 468-69. The trial court was clearly within its discretion in holding that the danger of unfair prejudice to defendant far outweighed the low probative value of the Kohley deposition. The deposition was properly excluded under Fed.R.Evid. 403.

II.

Plaintiff next contends that the trial court erred by sustaining defendant's hearsay objection to testimony proffered by Dr. Kent Westbrook, one of plaintiff's experts, on recent cases of oral cancer among young people who dip snuff. Dr. Westbrook was called by plaintiff in her case-in-chief and again in rebuttal to testify on the issue of causation.

During his testimony, Dr. Westbrook expressed his opinion that, in general, the use of snuff is a cause of oral cancer. He also expressed the opinion that Sean Marsee's cancer of the tongue was caused by use of defendant's snuff products. The former opinion was based on Dr. Westbrook's experience in treating oral cancer patients and on his review of the literature on oral cancer. The latter opinion was based on his review of Sean Marsee's case history.

Later, during his redirect examination, Dr. Westbrook testified as follows that he was aware of other young oral cancer patients who had used snuff:

"Q. ... Do you have any knowledge that would be relied upon generally by people in your field of recent cases of oral cancer in young people who are snuff dippers?

"A. There are some cases that I have talked to doctors about that appear to be oral cancers associated with snuff dipping. These are cases that [plaintiff's counsel] gave me the name of the doctor.

I called the doctor and talked with them about the patients."

Transcript at 1069-70. Following this exchange, the trial court sustained defendant's hearsay objection to any further testimony by Dr. Westbrook on the details of these conversations. The trial court did not strike the testimony of Dr. Westbrook that he was aware of other oral cancer cases among young snuff dippers. It simply excluded the details of what he had been told over the telephone about these cases.

Plaintiff argues that the trial court misapplied Fed.R.Evid. 703 by excluding the details of Dr. Westbrook's conversations regarding other oral cancer cases. This argument in itself misconstrues the operation of the rule. Rule 703, entitled "Bases of Opinion Testimony by Experts," states:

"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a...