Viguers v. Philip Morris USA, Inc.

• Decision Date: 24 November 2003
• Citation: 837 A.2d 534
• Parties: Ralph W. VIGUERS as Personal Representative of the Estate of Aurelia P. Viguers, Appellant, v. PHILIP MORRIS USA, INC., Appellee.
• Court: Pennsylvania Superior Court

837 A.2d 534

Ralph W. VIGUERS as Personal Representative of the Estate of Aurelia P. Viguers, Appellant, v. PHILIP MORRIS USA, INC., Appellee.

Superior Court of Pennsylvania.

Argued March 27, 2003.

Filed November 24, 2003.

Stephen W. Wilson, Philadelphia, for appellant.

Robert C. Heim, Philadelphia, for appellee.

BEFORE: JOYCE, ORIE MELVIN and BECK, JJ.

OPINION BY BECK, J.:

¶ 1 We decide, inter alia, whether the trial court erred in granting summary judgment and dismissing this products liability and negligence action against the defendant cigarette manufacturer. We affirm.

¶ 2 Plaintiff-appellant Ralph Viguers and his wife, the decedent Aurelia Viguers, filed this action against defendant-appellee Philip Morris, Incorporated (PMI). The complaint included claims of strict liability, negligence and conspiracy based on the alleged defectiveness of PMI's product, Parliament cigarettes, which Aurelia Viguers smoked from 1957 until 1985 or 1987. Aurelia died of lung cancer caused by cigarette smoking in 2000, and her husband continued this action on her behalf. Upon motions for summary judgment filed by PMI, the trial court dismissed the lawsuit and this timely appeal followed.¹

¶ 3 In his appeal, Ralph Viguers argues that the trial court erred in: 1) finding as a matter of law that the evidence of record rebuts the presumption that the decedent would have heeded an adequate warning of the health hazards of using PMI's cigarettes;² 2) striking all parts of Dr. Feingold's affidavit and dismissing all of appellant's claims arising out of the defective design of PMI's cigarettes; 3) finding that the record evidence is insufficient as a matter of law to sustain a cause of action for civil conspiracy; and 4) dismissing appellant's complaint in its entirety despite the fact that at least one claim set forth in the complaint remains.

¶ 4 Our scope of review in an appeal from summary judgment is plenary. Lange v. Burd, 800 A.2d 336, 338 (Pa.Super.2002). We must view the record in the light most favorable to the non-moving party and determine whether the moving party has established that there exists no genuine issue of material fact and that it is therefore entitled to judgment as a matter of law. Id. (quoting from Davis v. Resources for Human Development Inc., 770 A.2d 353, 356-57 (Pa.Super.2001)).

¶ 5 Appellant's first argument is based on the existence and application of a "heeding presumption" within the context of his failure to warn claim. Pennsylvania courts have not applied a "heeding presumption" in tobacco cases. However, in a recent asbestos products liability case, we held that:

in cases where warnings or instructions are required to make a product non-defective and a warning has not been given, the plaintiff should be afforded the use of the presumption that he or she would have followed an adequate warning, and that the defendant, in order to rebut that presumption, must produce evidence that such a warning would not have been heeded.

Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614, 621 (Pa.Super.1999) (citing Coffman v. Keene Corp., 133 N.J. 581, 628 A.2d 710 (1993)), appeal granted, 560 Pa. 705, 743 A.2d 920 (1999). The presumption would be particularly useful in a case such as this one, where the plaintiff died before testifying that she would have heeded a warning had it been provided by the defendant product manufacturer. Without such testimony, a plaintiff cannot establish causation in a failure to warn claim.

¶ 6 Nonetheless, this so-called "heeding presumption" has been authorized in Pennsylvania only in cases involving workplace exposure to asbestos. Coward, supra. See also Lonasco v. A-Best Products Co., 757 A.2d 367 (Pa.Super.2000) (heeding presumption applied, and was not rebutted by defendant asbestos manufacturer). In these situations "the plaintiffs were exposed in the course of their employment under circumstances that provided them no meaningful choice of whether to avoid exposure." Coward, 729 A.2d at 620. We recognized that "the burden of production currently applicable to strict liability cases poses potential inequity in the context of toxic substance cases where the plaintiff faced exposure in the course of his employment." Id.

¶ 7 We consider whether the "heeding presumption" is applicable in the very different context of this tobacco case, and conclude that it is not. We further hold that even if it were applicable, appellant has not satisfied his burden under it.

¶ 8 Many courts that have adopted the "heeding presumption" have found a rationale for its use in comment j to section 402A of the Restatement (Second) of Torts. See Coffman, 133 N.J. at 601,628 A.2d at 720 (collecting cases). Comment j provides that "[w]here a warning is given, the seller may reasonably assume that it will be read and heeded." Coward, 729 A.2d at 619. Cases adopting the presumption find that the language of comment j gives an evidentiary advantage to the defense. Although the Restatement itself does not give a corollary advantage to the plaintiff when no warnings or inadequate warnings have been given, courts have engrafted such an advantage onto the Restatement language by case law establishing the "heeding presumption." This extension has been based on public policy.

¶ 9 The only cases in Pennsylvania to address the heeding presumption involve injury from work related asbestos exposure, and a strong public policy argument can be made for its application in those cases. Lonasco, supra; Coward, supra. Plaintiffs who are exposed to asbestos and other products as a condition of their employment have little choice but to be in an environment where the asbestos or other products are present; therefore, public policy would favor the application of an evidentiary presumption in their favor where no or inadequate warnings are given.

¶ 10 However, in other situations where the plaintiff is not forced by employment to be exposed to the product causing harm, then the public policy argument for an evidentiary advantage becomes less powerful. We therefore hold that the heeding presumption does not apply in the context of this case, which involves the voluntary choice of a smoker to begin and continue smoking tobacco.

¶ 11 But even assuming arguendo that the presumption applies in this case, we agree with the trial court that the presumption was rebutted by uncontradicted evidence that Aurelia Viguers would not have heeded a warning had it been given prior to 1969.

Accordingly, if the defendant produces evidence that the injured plaintiff was "fully aware of the risk of bodily injury, or the extent to which his conduct could contribute to that risk," then the presumption is rebutted and the burden of production shifts back to the plaintiff to produce evidence that he would have acted to avoid the underlying hazard had the defendant provided an adequate warning.

Coward, 729 A.2d at 622. In order to rebut the heeding presumption, the defendant need only produce evidence "sufficient to support a finding contrary to the presumed fact." Id. at 621. In this case, the record contained evidence that Aurelia Viguers continued smoking long after federally-mandated warnings of the dangers of cigarette smoking appeared on packages in 1969. Indeed, she did not quit smoking until 1985 or 1987.

¶ 12 In addition, there was extensive record evidence that, during the relevant period between 1957 and 1969, common public knowledge included the awareness that cigarette smoking could be habit forming and could cause lung cancer. The available testimony also showed that Aurelia Viguers was a well-educated, well-informed person who at one time worked for the Philadelphia Tuberculosis and Health Society (which later became the American Lung Association),³ and that she was no less knowledgeable than the general public about the dangers of smoking. There is "no duty to warn potential users of that which is known to most people." Dauphin Deposit Bank & Trust Co. v. Toyota Motor Corp., 408 Pa.Super. 256, 596 A.2d 845, 849 (1991). See also Fletcher v. Raymond Corp., 424 Pa.Super. 605, 623 A.2d 845, 848 (1993) (duty to warn does not require that a manufacturer warn of obvious dangers which are generally known and recognized).

¶ 13 The trial court correctly held that this evidence, in addition to the fact that Aurelia Viguers continued smoking for some 20 years after federally mandated warnings appeared, adequately rebutted any presumption that she would have quit smoking if appellee had earlier warned of the dangers of its product. The burden of proof then shifted back to appellant to show that warnings would have changed Aurelia's behavior, and we affirm the trial court's decision that appellant did not produce evidence to meet this burden as a matter of law.

¶ 14 Next, appellant argues the trial court improperly struck the affidavit of his only expert on defective design, Dr. Allan Feingold. Without this evidence, appellant could not carry his burden of proof on the strict liability claim. See Hite v. R.J. Reynolds Tobacco Co., 396 Pa.Super. 82, 578 A.2d 417 (1990) (plaintiff did not show that a better design was available for defendant cigarette manufacturer's product, and that it was thus defective; strict liability does not attach on mere basis that defendant's product is "inherently dangerous").

¶ 15 We recognize a liberal standard for admission of expert testimony:

To be qualified to testify in a given field, a witness needs only to possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience. Ordinarily, therefore, the test to be applied is whether the witness has a reasonable pretension to specialized knowledge on the subject matter in question.

Flanagan v. Labe, 547 Pa. 254, 690 A.2d 183, 185 (1997). However, even physicians have been held unqualified to testify in specialty areas in which they are not experienced or educated. See, e.g., Yacoub v. Lehigh...