Tompkin v. Philip Morris Usa, Inc.
| Citation | 362 F.3d 882 |
| Decision Date | 30 March 2004 |
| Docket Number | No. 02-3267.,No. 02-3309.,02-3267.,02-3309. |
| Parties | Jocelyn TOMPKIN, Administratrix with will annexed of the Estate of David Tompkin, deceased, Plaintiff-Appellant/Cross-Appellee, v. PHILIP MORRIS USA, INC., formerly known as Philip Morris, Inc.; Liggett Group, Inc.; Lorillard Tobacco Company; The American Tobacco Company, Defendants-Appellees/Cross-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
A. Russell Smith (argued and briefed), R. Bryan Nace (briefed), A. Russell Smith Law Offices, Akron, OH, for Plaintiff-Appellant Cross-Appellee in 02-3267, 02-3309.
Mary M. Bittence (briefed), Diane P. Chapman (briefed), Baker & Hostetler, Cleveland, OH, Walter L. Cofer (argued and briefed), Shook, Hardy & Bacon, Kansas City, MO, Kenneth J. Walsh (briefed), Tyler L. Mathews (briefed), McDonald Hopkins, Cleveland, OH, Patrick M. McLaughlin (briefed), Colin R. Jennings (briefed), McLaughlin & McCaffrey, Cleveland, OH, James E. Milliman (briefed), Benjamin S. Shively (briefed), Middleton & Reutlinger, Louisville, KY, Frank W. Woodside, III, Michael J. Suffern (briefed), Dinsmore & Shohl, Cincinnati, OH, for Defendants-Appellees/Cross-Appellants in 02-3267.
Mary M. Bittence (briefed), Diane P. Chapman (briefed), Baker & Hostetler, Cleveland, OH, Walter L. Cofer (argued and briefed), Shook, Hardy & Bacon, Kansas City, MO, Kenneth J. Walsh (briefed), Tyler L. Mathews (briefed), Eric E. Kinder, McDonald Hopkins, Cleveland, OH, Craig Proctor (briefed), Shook, Hardy & Bacon, Kansas City, MO, Patrick M. McLaughlin (briefed), Colin R. Jennings (briefed), McLaughlin & McCaffrey, Cleveland, OH, James E. Milliman (briefed), Benjamin S. Shively (briefed), Middleton & Reutlinger, Louisville, KY, Frank W. Woodside, III, Michael J. Suffern (briefed), Dinsmore & Shohl, Cincinnati, OH, for Defendants-Appellees/Cross-Appellants in 02-3309.
Before: SUHRHEINRICH, COLE, and ROGERS, Circuit Judges.
Plaintiff Jocelyn Tompkin sued the defendant tobacco companies, alleging that her husband, David Tompkin, died as a result of smoking cigarettes sold by the defendants.1 Tompkin asserted statutory and common law products liability claims. After this court reversed the district court's grant of summary judgment in favor of the defendants, the case proceeded to trial. A jury found for the defendants, and Tompkin now appeals.
Tompkin raises three issues on appeal. Specifically, she claims that the district court erred by (1) admitting "surprise" testimony from a defense expert that there was an "association" between Mr. Tompkin's asbestos exposure and an elevated risk of lung cancer, (2) excluding certain evidence that she proffered (in particular, evidence concerning research and public-relations groups associated with the tobacco industry, evidence concerning non-party tobacco companies, evidence from prior tobacco-related proceedings, and evidence concerning the defendants' conduct after the date that her husband quit smoking), and (3) refusing to charge the jury on her "consumer expectations" claim under the Ohio Products Liability Act. Because Tompkin has not shown that she was prejudiced by any of these alleged errors, we affirm the judgment of the district court.
David Tompkin began smoking in 1950, at the age of sixteen, and he quit in 1965, at the age of thirty-one. His smoking history was as follows:
Year Amount and Brand
1950-1951 4 to 6 Old Gold cigarettes per day
1951-1954 4 to 6 Philip Morris cigarettes per day
1954-1957 6 to 8 Pall Mall cigarettes per day
1957-1959 10 Chesterfield cigarettes per day
1959-1961 1.5 packs of Herbert Tareyton cigarettes
per day
1961-1964 Between 2 and 3 packs of Kent cigarettes
per day
1964-1965 Between 2 and 3 packs of Lark cigarettes
per day.2
Mr. Tompkin was exposed to asbestos and other pollutants in the course of his career. After graduating from high school in 1952, he worked at Stalwart Rubber Company in the curing room. From 1953 to 1957, he worked as a bricklayer apprentice, and from 1957 to 1984, he worked as a bricklayer. In 1984, he started a construction company. During this work, he was "heavily exposed" to asbestos, and he was exposed to brick dust, cement dust, mortar, lime, and rubber-curing effluvia. Finally, Mr. Tompkin had a family history of cancer.
On June 26, 1992, Mr. Tompkin was diagnosed with lung cancer. He died on February 12, 1996, at the age of 61.
On June 24, 1994, Tompkin and her husband, then still alive, filed suit against the defendants in the United States District Court for the Northern District of Ohio. Tompkin was substituted for her husband, as administratrix of his estate, after his death. In her amended complaint, Tompkin asserted the following claims: (1) strict liability; (2) negligent, willful and wanton misconduct; (3) fraud and misrepresentation; (4) strict liability for misrepresentation; (5) express warranty; (6) implied warranty; (7) conspiracy and concerted action; and (8) derivative claims for wrongful death and loss of consortium.
On August 3, 1998, the district court granted summary judgment in favor of the defendants. It held that Tompkin's first five claims were governed by the Ohio Product Liabilities Act ("OPLA") and that OPLA's "common knowledge" doctrine — which bars claims for damages from risks which are "common knowledge" — applied to these claims. Tompkin v. Am. Brands, Inc., 10 F.Supp.2d 895, 899-905 (N.D.Ohio 1998). It also held that OPLA preempted breach of implied warranty claims and that Tompkin failed to establish that her husband relied on any statements by the defendants, as required to sustain her fraud and conspiracy claims. Id. at 900, 909-10. Finally, it held that, by definition, Tompkin's derivative claims failed when the underlying claims failed. Id. at 911.
On July 24, 2000, this court reversed, in part, the district court's grant of summary judgment. We concluded that Tompkin had established a genuine issue of material fact on the extent of "common knowledge" of the nexus between smoking and lung cancer, and we reversed the grant of summary judgment on her OPLA claims. Tompkin v. Am. Brands, 219 F.3d 566, 571-75 (6th Cir.2000). Additionally, we reversed the district court's holding that OPLA preempted Tompkin's breach of implied warranty claim. Id. at 576. However, we affirmed the district court's holding that OPLA preempted her negligent, willful and wanton misconduct claim. Id. at 575.
The trial commenced on September 25, 2001, and comprised approximately seven days of testimony. At trial, Tompkin advanced a "failure to warn" claim under OPLA, a "consumer expectations" claim under OPLA, and a breach of implied warranty claim. However, the district court refused to instruct the jury on Tompkin's "consumer expectations" claim, reasoning that "there was no testimony" to support the claim.
At trial, Tompkin presented fourteen witnesses, including family and close friends of her husband. Tompkin and two of her daughters testified about their relationships with Mr. Tompkin and about the effect of his cancer on him and his family. Similarly, Mr. Tompkin's business partner, and long-time coworker, testified about Mr. Tompkin's work and his smoking habits. Finally, in a videotaped deposition, Mr. Tompkin testified about his history of smoking, his (lack of) awareness of the dangers of smoking, his medical history, his history of employment, and the impact of his cancer on his personal and professional life.
Tompkin also presented testimony from the physicians who treated her husband. Mr. Tompkin's family physician, his two oncologists, and his surgeon testified about the diagnosis and treatment of his lung cancer. Additionally, his oncologist opined, as the treating physician, not as an expert witness, that cigarette smoking caused Mr. Tompkin's lung cancer.
Tompkin also presented expert testimony on her "failure to warn" claim, the defendants' "common knowledge" defense, and the cause of Mr. Tompkin's cancer. Dr. Alan Blum, a professor of family medicine at the University of Alabama School of Medicine, Tuscaloosa branch, testified in support of Tompkin's failure to warn claim. A self-styled historian, he traced the history of medical literature on the connection between smoking and lung cancer. He concluded that by 1939 "the case was closed that smoking was the leading cause of lung cancer." Based on this conclusion, he opined that (1) the defendants "knew in 1939, or in the exercise of reasonable care should have known in 1939, about a risk that was associated with their cigarettes and lung cancer," and (2) the defendants "should have issued warnings or instructions in 1939 as to the risks of smoking tobacco, particularly cigarettes, and insofar as its causing lung cancer is concerned."
Tom Smith, the director of the general social survey at the National Opinion Research Center at the University of Chicago, testified in response to the defendants' common knowledge defense. He reviewed polling conducted between 1950 and 1965 on the connection between smoking and lung cancer. In particular, he described six Gallup polls which, averaged together, showed that only 45% of the respondents believed that smoking caused lung cancer. Based on this investigation, he opined that "the ordinary person with ordinary knowledge common to the community" did not recognize "the nature and the extent of the link between smoking cigarettes and lung cancer between the years 1950 and 1965." He explained that "based on the particular data here from Gallup as well as other data we've looked at about what causes cancer and people's beliefs about what harms come from smoking, the data clearly indicates that people did not...
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