Smith v. Brown & Williamson Tobacco Corporation, No. WD65542 (Mo. App. 9/2/2008)

Decision Date02 September 2008
Docket NumberNo. WD65542.,WD65542.
PartiesLincoln Smith, et al., Respondents, v. Brown & Williamson Tobacco Corporation, Appellant.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of Jackson County, Hon. Marco Antonio Roldan.

Robert H. Klonoff and Casey O. Housley, Counsel for Appellant.

Kenneth B. McClain, II and Gregory A. Leyh, Counsel for Respondent.

Before Lowenstein, P.J., concurs, Smart, J. writes a dissenting opinion.


ROBERT G. ULRICH, Senior Judge.

Brown & Williamson Tobacco Corporation (B&W) appeals the judgment entered in favor of the survivors of Barbara Smith and against B&W under Missouri's wrongful death statute for claims of personal injury based on negligence and product defect. Section 537.080.1 B&W presents ten points on appeal. B&W asserts in its first five points and ninth point that the trial court erred in denying its motion for judgment notwithstanding the verdict for various reasons. B&W asserts in its sixth point that the trial court erred in instructing the jury on comparative fault after B&W withdrew the affirmative defense. B&W asserts in its seventh and eighth points that the trial court erred in denying its motion for a new trial on punitive damages. Finally, B&W asserts in its tenth point that the trial court erred in denying its motion for judgment notwithstanding the verdict, its motion for new trial, and its request for remittitur on punitive damages. The judgment is affirmed in part, reversed in part, and the case is remanded.


This case involves a wrongful death action brought by the survivors of a deceased longtime smoker against a tobacco company. Section 537.080. In the light most favorable to the jury verdict, the facts are as follows. Barbara Smith was born on May 13, 1927. She began smoking Lucky Strike cigarettes in 1942. After smoking Lucky Strikes for one to two years Ms. Smith switched to Kool cigarettes, manufactured by B&W.

In January 1964, the Surgeon General of the United States issued his first report on smoking and health. The report concluded that smoking causes fatal diseases, including cancer. The report also advised the public that the best way to reduce the risk of death and diseases associated with smoking is to quit smoking. Congress enacted the Federal Cigarette Labeling and Advertising Act (FCLAA) in 1965. The FCLAA required every package of cigarettes to bear the warning: "Caution: Cigarette Smoking May Be Hazardous To Your Health." The warning was modified in 1969 to read: "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous To Your Health." The warning was changed again in 1985 to a system of four rotating warnings, including: "Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy" and "Quitting Smoking Now Greatly Reduces Serious Health Risks."

Ms. Smith developed angina in the early 1980s.2 In 1990, a physician informed Ms. Smith that she had "respiratory trouble" that was the beginning stage of emphysema. The same doctor told Ms. Smith that she was "going to have to quit smoking because it was going to kill her if she didn't." She quit smoking that year. Ms. Smith was diagnosed with lung cancer in 1992. Part of one lung was removed, and Ms. Smith was apparently cancer free thereafter.

Ms. Smith brought suit against B&W in Jackson County, and the case was transferred to the United States District Court, Western District of Missouri, in 1996. B&W was granted summary judgment as to certain of her negligence and strict liability claims. On May 12, 2000, Ms. Smith died from a heart attack at age 73. After her death, all remaining claims in federal court were dismissed with prejudice.

In March 2003, the survivors of Barbara Smith, her husband Lincoln Smith3 and their children, brought suit against B&W in Jackson County under the Missouri Wrongful Death Act (section 537.080) to recover damages for her death, which resulted from heart disease. The petition alleged claims for negligence, strict liability, fraudulent concealment, and conspiracy.

B&W plead comparative fault as an affirmative defense and performed discovery regarding Ms. Smith's fault. After completion of discovery, B&W withdrew its comparative fault affirmative defense. At trial, B&W protested the jury's receiving a comparative fault instruction. Over B&W's objection, the court gave the jury a comparative fault instruction.

Trial was had in January 2005.4 The jury returned a verdict for B&W on the fraudulent concealment and conspiracy claims. It returned a verdict for Ms. Smith's survivors on the negligence and strict liability claims, awarding $2 million in compensatory damages. The jury further found that Ms. Smith was 75% at fault; accordingly, the trial court reduced the compensatory damages to $500,000. The jury also found that B&W was liable for "aggravating circumstances" and assessed $20 million in punitive damages. B&W's timely appeal followed.

Additional facts are set forth in the analysis as needed.

Standard of Review for Points I-V

The standard of review for a trial court's denial of a motion for judgment notwithstanding the verdict is whether a submissible case was made. Payne v. Cornhusker Motor Lines, Inc., 177 S.W.3d 820, 832 (Mo. App. E.D. 2005). In order to make a submissible case, the plaintiff must present substantial evidence for every fact essential to liability. Id. "In determining whether a submissible case was made, this court views the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the prevailing party." Id. The jury is the sole judge of witness credibility and the weight and value of testimony. Moran v. Hubbartt, 178 S.W.3d 604, 609 (Mo. App. W.D. 2005). Further, the jury may believe or disbelieve any portion of witness testimony. Id. Review of whether substantial evidence exists is de novo. Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 814 (Mo. banc 2003). Substantial evidence is evidence, "which if true, has probative force upon the issues, and from which the trier of fact can reasonably decide the case." Id. (quotation marks and citations omitted). A motion for judgment notwithstanding the verdict should be granted "only when reasonable minds cannot differ as to the ultimate disposition of the case." Moran, 178 S.W.3d at 609. (quotation marks and citations omitted). Granting a judgment notwithstanding the verdict is a drastic action, and an appellate court will not overturn a jury's verdict unless there are no probative facts to support it. Blue v. Harrah's N. Kansas City, LLC, 170 S.W.3d 466, 472 (Mo. App. W.D. 2005).

Point I

In its first point, B&W claims the trial court erred in denying its motion for judgment notwithstanding the verdict on Ms. Smith's survivors' claim for failure to warn and for heart disease, COPD/Emphysema, and addiction. It asserts that Ms. Smith's survivors failed to state a claim as to those theories and injuries under the Wrongful Death Act because those claims were fully adjudicated on the merits against Ms. Smith during her lifetime when the federal district court dismissed her complaint with prejudice.

Before her death, Ms. Smith brought suit against B&W and another tobacco company in federal court alleging multiple claims. B&W was granted summary judgment as to certain of these claims. Ms. Smith brought four strict liability claims: (1) Count I alleged cigarettes were unreasonably dangerous; (2) Count II alleged that there were inadequate warnings prior to 1970; (3) Count III alleged a defective design because cigarettes are addictive and cause health problems; and (4) Count VI alleged that cigarettes are defective because they are addictive. B&W was granted summary judgment as to Count II. The court determined that Ms. Smith could not prove causation; that is, had there been warnings prior to 1970, Ms. Smith would not have altered her behavior and, thus, the lack of warning prior to 1970 did not cause Ms. Smith's health problems. Ms. Smith brought three negligence claims: (1) Count IV alleged negligent testing, research, advertising, and promotion; (2) Count V alleged defendants negligently warned consumers of health hazards in a manner that diluted the effect of the Surgeon General's warning; and (3) Count IX alleged negligent misrepresentation through concealment. Ms. Smith voluntarily withdrew Count V. B&W was granted summary judgment as to part of Count IV and Count IX. Regarding Count IV, B&W was granted summary judgment as to the claims of negligent advertising and promotion. The court determined no evidence was presented that Ms. Smith saw or was motivated to smoke Kool cigarettes by advertising and promotion. B&W was further granted summary judgment as to Count VII, which alleged a breach of express warranty, Count XI, which alleged fraudulent misrepresentation, and Count X, which alleged civil conspiracy.

Ms. Smith's survivors' wrongful death petition contained four counts. Count I alleged negligence. It asserted that B&W breached three duties: (1) the duty to warn before 1969; (2) the duty to establish a reasonable dose; and (3) the duty to create a safer cigarette. Count II alleged a strict liability claim that cigarettes were defective and unreasonably dangerous. Count III alleged fraudulent concealment, and Count IV alleged conspiracy.

The causes were presented to the jury in three verdict forms. Part I was for the concealment claim, Part II was for the conspiracy claim, and Part III was for the failure to warn, negligent design, and failure to warn claim. The jury returned the following verdict: Part I in favor of B&W, Part II in favor of B&W, and Part III in favor of Ms. Smith's survivors.

At issue in this point are the negligence and strict liability failure to warn claims. These claims were asserted in both the federal action and the subsequent wrongful death action.5 B&W was granted summary judgment on these claims in the federal court...

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