Rogers v. RJ Reynolds Tobacco Co.
Decision Date | 30 June 2000 |
Docket Number | No. 49A02-9808-CV-668.,49A02-9808-CV-668. |
Citation | 731 N.E.2d 36 |
Parties | Yvonne 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. |
Court | Indiana 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.
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:
Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1047-1049 (Ind.Ct.App.1990).
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.
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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