Thompson v. Brown & Williamson Tobacco Corp.

• Decision Date: 22 August 2006
• Docket Number: No. WD 63897.,WD 63897.
• Citation: Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76 (Mo. App. 2006)
• Court: Missouri Court of Appeals
• Parties: Michael S. THOMPSON and Christi Thompson, Respondents, v. BROWN & WILLIAMSON TOBACCO CORPORATION and Philip Morris USA Inc., Appellants.

207 S.W.3d 76

Michael S. THOMPSON and Christi Thompson, Respondents, v.BROWN & WILLIAMSON TOBACCO CORPORATION and Philip Morris USA Inc., Appellants.

No. WD 63897.

Missouri Court of Appeals, Western District.

August 22, 2006.

Application for Transfer to Supreme Court Denied September 26, 2006.

Application for Transfer Denied December 19, 2006.

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Kenneth B. McClain, Scott B. Hall, and Christopher R. Miller, Independence, MO,

Gregory Leyh, Gladstone, MO, for Respondents.

Thomas E. Deacy, Jr., Spencer J. Brown, and Brian G. Fedotin, Kansas City, MO, Murray R. Garnick and James M. Rosenthal, Washington, D.C., for AppellantPhilip Morris USA Inc.

Robert H. Klonoff, Washington, DC, Frank C. Woodside, III, and Mary-Jo Middelhoff, Cincinnati, OH, for AppellantBrown & Williamson Tobacco Corporation.

Before SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.

VICTOR C. HOWARD, Judge.

Brown and Williamson Tobacco Corporation("B & W") and Philip Morris USA Inc.("PM USA") appeal the judgment of the trial court awarding damages to Michael Thompson for personal injury based on negligence and strict product liability for product defect and failure to warn, and to his wife, Christi Thompson, for loss of consortium resulting from Michael Thompson's 30-year history of smoking cigarettes which led to his developing laryngeal cancer.B & W and PM USA appeal the trial court's denial of their motion for judgment notwithstanding the verdict or, in the alternative, motion for a new trial, filed after judgment in the personal injury jury trial, for failure to make a submissible case on the negligence, strict liability, and consortium claims.They also appeal the trial court's permitting the addition of the loss of consortium claim, its giving of a comparative fault instruction, its refusing to give other certain jury instructions offered by the appellants, and its admitting of certain evidence.

Factual Overview

Michael Thompson began smoking Marlboro cigarettes manufactured by PM USA in 1964 at the age of 14, continuing to smoke them until switching brands to GPC Light cigarettes manufactured by B & W in 1992.In February 1997, Michael Thompson was diagnosed with laryngeal (throat) cancer, which required four surgeries and radiation treatment.On August 23, 2000, Michael Thompson sued B & W and PM USA, the manufacturers of the cigarettes which he smoked, alleging personal injury based on negligence and strict product liability for defective design and failure to warn.On June 3, 2002, Michael Thompson amended his claim to include concealment and conspiracy claims, and sought to add his wife, Christi Thompson, to the case to add a claim of loss of consortium.At trial, the jury found in favor of Michael Thompson on the claims of negligence and strict liability product defect, and awarded damages in the amount of $1,593,508.¹The award was reduced by the jury finding comparative fault, assessing 50% to Michael Thompson, 40% to PM USA, and 10% to B & W.The jury found in favor of the defendants on the claims of concealment and conspiracy.The jury found in favor of Christi Thompson on her loss of consortium claim, and awarded damages of $500,000, which was also reduced by the comparative fault percentages.

Michael Thompson's Smoking and Health History

Michael Thompson testified that, in 1963, at the age of 13, he smoked his first cigarette.During the time he was growing up in Grandview, Missouri, 50% of Americans smoked cigarettes, including 70% of American males, and that included almost all of Michael Thompson's friends and most of the adults he knew, including his parents.When he smoked his first cigarette, he did not know that smoking was addictive or that it caused cancer.There were no warning labels on the packages at that time.Even so, he admitted that no warning label or parental punishment would have deterred him, as a teenager, from smoking at that time.

About a year after he tried his first cigarette, Michael Thompson started smoking Marlboro cigarettes, which were manufactured by PM USA.He said that he was influenced by a lot of his classmates who smoked Marlboros.Growing up, he and his family watched a lot of Western-themed television shows, and he recalled television advertisements for Marlboros, noting that he started smoking Marlboros because he"wanted to be like the cowboy" depicted in the ads.

From 1964 to 1990, Michael Thompson continued to smoke 1½ to 2 packs of Marlboro cigarettes per day.Michael Thompson volunteered for military service in 1969, and while serving in Vietnam, cigarettes were cheaply and readily available to him, and even supplied in military ration kits.He switched to Marlboro Lights in 1987 or 1988 because he thought that it was a way to cut back on cigarette use.In 1992, Michael Thompson switched to GPC Light cigarettes, manufactured by B & W, because they were less expensive than Marlboros.

About the time that Michael Thompson began smoking cigarettes regularly, the United States Surgeon General issued his first report on smoking and health, which concluded that smoking caused fatal diseases like cancer.In 1965, Congress passed the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1340, which required every package of cigarettes to bear the warning: "Caution: Cigarette Smoking May Be Hazardous To Your Health."This warning was modified in 1969 to say: "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous To Your Health."The warning was modified again in 1985 to four rotating warnings, including: "Smoking Causes Lung Cancer, Heart Disease, and Emphysema, and May Complicate Pregnancy," and "Quitting Smoking Now Greatly Reduces Serious Health Risks."

Michael Thompson testified that he remembered seeing some of those warning messages over the years, but they had no effect on his decision to smoke, because he thought that any health risks applied to older people.He attempted to quit smoking on a couple of occasions, but he never lasted more than a day because it made him grouchy, anxious, and stressed out.He said that he did not know that nicotine was addictive and did not know that the symptoms he felt were those of withdrawal from the nicotine.He switched to a "light" brand of cigarettes, which were advertised as yielding less tar and nicotine per cigarette than regular cigarettes, but did not know that he was likely getting the same amount of tar and nicotine.

In January 1997, Michael Thompson went to the doctor for treatment of a persistent sore throat.He was subsequently diagnosed with laryngeal cancer, which his doctors said was the result of his 30-year history of smoking.He stopped smoking on February 11, 1997, on the day he entered the hospital to have his cancer surgically removed.During this surgery, his voice box was completely removed, along with a portion of his tongue, a portion of his throat, lymph glands on both sides of his neck, and all of his teeth.Following this surgery, he developed an infection, which required reconstructive surgery of his throat.At that time, doctors found residual evidence of cancer, and Michael Thompson underwent radiation therapy.Because his neck wounds were slow to heal, surgeons later had to perform a gastrostomy, placing a tube directly into his stomach so that food and medications could enter his body without irritating his throat.Following radiation treatment, Michael Thompson underwent a fourth surgery to reconstruct his throat.This involved the transplanting of skin and tissue from his arm to his neck and throat.Michael Thompson now speaks with the aid of a medical device and has continuing pain, but is cancer-free.His medical condition prevents him from resuming his prior career as a security officer for a large company.

Procedural History

On August 23, 2000, Michael Thompson sued B & W and PM USA,² seeking compensatory and punitive damages, asserting claims of negligence and strict product liability.On June 3, 2002, Michael Thompson filed an amended petition, specifying the following claims: (1) negligence against both defendants, including negligent design against both, and negligent failure to warn before 1969 against PM USA;³(2) strict liability for product defect against both defendants and strict liability failure to warn prior to 1969 against PM USA; (3) concealment against both defendants; and (4) conspiracy against both defendants.In a fifth claim, Michael Thompson sought to add his wife, Christi Thompson, to the lawsuit so that she could bring a loss of consortium claim.Just prior to trial, B & W and PM USA moved for summary judgment with regard to the consortium claim, arguing that it was barred by the five-year statute of limitations, but that motion was denied.

In its answers to Michael Thompson's complaint, PM USA asserted the affirmative defenses of failure to mitigate injury, assumption of the risk, and knowledge of open and obvious dangers.B & W asserted the affirmative defenses of comparative fault, assumption of the risk, and knowledge of open and obvious dangers.Immediately prior to the beginning of jury selection in the trial, B & W and PM USA filed a notice that they specifically waived the affirmative defense of comparative fault.

Trial began on October 3, 2003, in the circuit court of Jackson County, Missouri.Notwithstanding the defendants' notice of waiver of the defense, the Thompsons requested a jury instruction on comparative fault.The circuit court granted the request with regard to the claims for product defect, failure to warn, and negligence.As noted above, the jury returned verdicts in favor of Michael Thompson on the strict liability for product defect and negligence claims, and for Christi Thompson on the loss of...