Rogers v. RJ Reynolds Tobacco Co.

Decision Date30 June 2000
Docket NumberNo. 49A02-9808-CV-668.,49A02-9808-CV-668.
Citation731 N.E.2d 36
PartiesYvonne ROGERS, Individually and as Executrix of the Estate of Richard Rogers, Deceased, Appellant-Plaintiff, v. R.J. REYNOLDS TOBACCO CO., Philip Morris Incorporated, the American Tobacco Co., Inc., and Liggett Group, Inc., Appellees-Defendants.
CourtIndiana Appellate Court

C. Warren Holland, Michael W. Holland, Holland & Holland, Morris L. Klapper, Klapper Isaac & Parish, Indianapolis, Indiana, Attorneys for Appellant.

Richard D. Wagner, Thomas J. Costakis, Jeffrey C. McDermott, Krieg DeVault Alexander & Capehart, Indianapolis, Indiana, William T. Plesec, Paul D. Koethe, Kevin D. Boyce, Jones, Day, Revis & Pogue, Cleveland, Ohio, James W. Riley, Jr., Riley Bennett & Egloff, Indianapolis, Indiana, Aaron H. Marks, Kasowitz, Benson, Torres & Friedman LLP, New York, NY, Attorneys for Appellees.


RILEY, Judge


Plaintiff-Appellant Yvonne Rogers (Yvonne), individually and as Executrix of the Estate of her late husband, Richard Rogers (Richard), appeals an adverse jury verdict on the strict liability and wrongful death claims against cigarette manufacturers and distributors; R.J. Reynolds Tobacco Company, Philip Morris Incorporated, The American Tobacco Company, and Liggett Group, Incorporated (hereinafter referred to collectively as "Defendants").

We affirm in part, reverse in part, and remand for further proceedings in accordance with this opinion.


Rogers raises several issues for our review, which we consolidate and restate as follows:

1. Whether the trial court judge erred in failing to notify the parties that he advised the jury, at the jury's request during deliberations, that it could hold a press conference following the reading of the verdict.

2. Whether the trial court erred in denying Rogers' Motion for Relief from Judgment under Ind.Trial Rule 60(B) based on newly discovered evidence.

3. Whether the trial court erred in instructing the jury on the defense of incurred risk and on the meaning of "defective product."

4. Whether the trial court erred in the exclusion of certain evidence. 5. Whether the trial court erred by denying Rogers' Motion to Amend her Complaint to include a claim that the Defendants were engaged in an abnormally dangerous activity.


We adopt the facts of Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d 1045 (Ind.Ct.App.1990), reh'g denied, as previously determined:

The evidence before the trial court at the summary judgment hearing was as follows: Richard Rogers, Yvonne's deceased husband, was born in 1935. He began smoking discarded cigarette butts when he was five or six years old. As a child he was prompted to smoke by seeing his father, his parents' friends, and movie heroes smoking. He also was aware of athletes promoting the use of cigarettes in advertisements. By the age of five he had heard smoking "stunts your growth." Record at 673. His high school coaches warned smoking affected breathing. Richard's father quit smoking when Richard was fifteen. His father told him he quit because he had experienced a "bad hacking fit." Record at 360.
By the sixth grade, Richard was smoking close to a pack of cigarettes a day. At the time he graduated from high school in 1953 and during the two years he was in the army, Richard smoked two packs of cigarettes a day. When he reached his mid-twenties he was smoking about three packs a day. He continued to smoke between two and three packs of cigarettes a day until June 24, 1986, when he was able to quit after receiving a short course of medical treatment consisting of hypnosis and drug therapy. Two months later Richard was diagnosed as having lung cancer.
As early as high school Richard smoked not for pleasure, but because it was a habit he could not break. By the age of twenty-one, he knew heavy smoking posed a greater health risk than moderate smoking. In 1960, when he made his first conscientious but unsuccessful attempts to quit smoking, he realized cigarettes were "more than just habit forming"; they were something he could not "get off of." Record at 671. Starting in 1970, Richard resorted several times to staying in bed all weekend as a method of quitting smoking.
[W]hat I was trying to do was take myself out of a situation where I did anything where I smoked. If I slept I didn't smoke. If I was in bed I didn't smoke. So the idea was get in bed, do nothing that would prompt you to get a cigarette. If I'd get up, I'd get a cup of coffee and light a cigarette; if I ate, I'd light a cigarette; get a newspaper, I'd light a cigarette. Everything I did was with a cigarette. So what I was hoping to do was immobilize myself for those three days. The idea was if you could go a week, maybe you could make it. I could never get that far. Record at 720.
This method proved unsuccessful for Richard; the first place he would go on the following Monday morning was to a drugstore. In his words, "I had to have that cigarette." Record at 567.
Sometime between 1960 and 1978, Richard attended a meeting sponsored by the American Cancer Society. He described the experience and his reaction to it.
A. ... [I]t was kind of like an Alcoholics Anonymous format where you'd be teamed up with somebody that you could call if you wanted to get some help, one of those things. Record at 677.
Q. .... Why was it that you determined that the program that they offered was not for you?
A. Because I have great willpower [sic]. I can quit smoking any time I want to. That was my thought. But I couldn't. Record at 682.
In 1964 Richard learned of the link between cigarette smoking and cancer from the widely-disseminated conclusion of the Surgeon General's report on Smoking and Health.
[T]he surgeon general was saying there was a risk of cancer, and that from the first warning, his warnings kept getting stronger and stronger. And the doctors were starting to tell you, don't smoke. Publications were telling you, don't smoke. Newspaper articles were telling you what the surgeon general was saying. He was appearing on television. Hospitals and doctors and clinics were appearing on television saying there was a danger. Record at 487-88.
I recall the initial warning coming out saying that they have discovered that cancer was caused by smoking.... Record at 489.
I think the first word was there was a link between cigarette smoking and cancer.
This is not just TV reports. I mean, it's blasted. When something like that comes out, it's TV, newspapers, people by word of mouth talking about it. It's a widely discussed subject. We're not talking about one isolated newspaper. We're talking about a social concept. Record at 490-91.
Finally, Richard acknowledged the cigarettes he had purchased since the January 1, 1966 effective date of the Federal Cigarette Labeling and Advertising Act bore the required warning labels.
Richard and Yvonne filed their initial complaint on March 7, 1987. Richard died on October 2, 1987. The complaint was subsequently amended to state a wrongful death claim based on the theories of strict liability, negligence and fraud. In her individual capacity, Yvonne sought damages for loss of Richard's consortium prior to his death and for the intentional infliction of emotional injury. Finally, the amended complaint contained allegations of both intentional and wanton and willful misconduct as a basis for punitive damages. The trial court granted summary judgment against Yvonne individually and as personal representative on all counts.

Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1047-1049 (Ind.Ct.App.1990).

In that decision, we concluded that:
the trial court properly granted summary judgment on the strict liability claim for failing to warn of the addictive qualities of cigarettes on and after January 1, 1966. It also properly granted summary judgment on the numerous fraud claims, Yvonne's claims on behalf of the estate for punitive damages, and her individual claim for the wrongful infliction of emotional distress. However, the trial court erred in granting summary judgment on the strict liability claim for failing to warn of the addictive qualities of cigarettes before January 1, 1966; the strict liability and negligence claims for design defects; and Yvonne's individual claim for loss of consortium, including punitive damages in addition to compensatory damages.

Id. at 1057. Thus, we affirmed the trial court's judgment in part, reversed in part, and remanded for further proceedings in accordance with that opinion.

Subsequently, on December 2, 1993, Rogers moved for partial summary judgment on the issues of whether the distribution of cigarettes is an abnormally dangerous activity and whether Richard Rogers voluntarily incurred the risk of smoking cigarettes. On April 26, 1994, the trial court denied Rogers' motion on the grounds that there were genuine issues of material fact.

On November 4, 1994, Rogers filed her Motion for Leave to File a Second Amended Complaint for Damages to add the theory that Defendants distribution of cigarettes was an abnormally dangerous activity. On December 1, 1994, the trial court denied Rogers' motion to amend.

The trial commenced on January 31, 1995. On February 23, 1995, after two days of deliberations, the court declared a mistrial when the jury advised the court that it was hopelessly deadlocked. The retrial commenced on August 5, 1996. Before reading the verdict, the trial judge announced that the court had granted the jury's request to hold a press conference in the courtroom and to make a public statement after the reading of the verdict. On August 23, 1996, the court entered judgment on the jury verdict, finding for Defendants. Rogers now appeals.

I. Jury Press Conference

First, Rogers argues that the trial court judge abused his discretion by failing to notify the parties that he advised the jury, at the jury's...

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