BOSTON (Legal Newsline) - A Massachusetts appeals court ordered another trial over whether RJ Reynolds should have sold safer cigarettes, ruling a judge erroneously told jurors a safer design had to have been available before the plaintiff became addicted to cigarettes.
The proper instruction was that Reynolds could be liable for selling defective cigarettes at any time up until the plaintiff quit smoking, the appeals court ruled.
Richard Main claimed he started smoking in the early 1960s when he was 12 or 13 and Reynolds distributed free sample packs of Kent cigarettes. He smoked until 1987, when he was 36 and quit after several unsuccessful attempts.
Main sued Reynolds after he developed cancer 30 years later and his son, Jonathan Main, pursued the case after his death. At trial, the plaintiff argued a 2013 decision by the Massachusetts Supreme Court, Evans v. Lorillard Tobacco, meant he only had to prove a reasonable alternative design existed while Main was addicted to tobacco, not before he became hooked.
The defense argued Evans required jurors to assess the reasonableness of an alternative “from the perspective of a rational, informed consumer, whose freedom of choice is not substantially impaired by addiction.” That means before Main was addicted, Reynolds said.
At a conference on jury instructions, the judge said she would accept objections after the instructions were given to the jury, in writing and without making them available to the other side.
The next day, the judge read the instructions to the jury but didn’t say the alternative design had to have been available before Richards became addicted. The defense submitted a written objection, the judge read it, and then she told the jury she had inadvertently left a sentence out of the instructions and told them they did have to find the alternative predated his addiction. She then left the courtroom, leaving no opportunity for the plaintiff to object.
The jury ruled for Reynolds on all counts including breach of warranty.
On appeal, the plaintiff argued the verdict was tainted by the judge’s jury instructions, which misstated Evans v. The Massachusetts Appeals Court, in an opinion by Judge Gabrielle Wolohojian, agreed and said the error was serious enough to reverse the defense verdict on breach of warranty.
The purpose of anchoring liability to the point in time when the defective product is sold or distributed is to give manufacturers an incentive to create safer products,” the appeals court ruled. “Such a rule would in essence immunize cigarette manufacturers from liability to addicted persons even though they continue to sell or distribute defective products despite the availability of reasonable alternative designs.”
The jury might have ruled differently with those instructions, the court went on, since there was evidence of technology to remove nicotine before Richard started smoking and it was possible to make low-nicotine cigarettes during the time he smoked. The president of Philip Morris had specialty low-nicotine cigarettes made because he was afraid of becoming addicted from a research report dating to 1978.
The instruction was only one sentence in lengthy jury instructions, the court said, but it “was the last word the jury heard on the plaintiff’s burden of proof before they retired to deliberate.”
The court rejected defense arguments the plaintiff failed to object to the jury instructions at the time, citing the trial judge’s unusual procedure. The appeals court also rejected Reynolds’ argument Main’s lung cancer, diagnosed 30 years after he quit smoking, was more likely from radon exposure.