BOSTON (Legal Newsline) - A woman who admitted she knew smoking was dangerous but claimed she was misled into believing Marlboro Lights were safer can collect nearly $37 million after the highest court in Massachusetts rejected arguments by Philip Morris that the jury received incorrect instructions and the statutory post-judgment interest rate was too high.
The decision by the Massachusetts Supreme Judicial Court affirmed broad theories of civil conspiracy that are echoed in the state’s lawsuit against the energy industry. Greene’s experts argued cigarette manufacturers spent billions of dollars trying to convince consumers that cigarettes didn’t cause cancer and concealed internal studies showing “light” and “filtered” cigarettes were even more dangerous than older versions.
“The evidence showed that the conspiracy, of which Philip Morris was a significant part, undertook a unified, pervasive campaign to hide the true health risks of smoking from prospective and actual smokers, by overwhelming and drowning out the voices seeking to establish the dangers of smoking with mass publication of false and deceptive pseudoscientific statements regarding their safety,” the court said in a unanimous May 9 decision written by Justice Scott Kafker. “The effect was to create a smoke screen of deception and disinformation concealing the true dangers of cigarette smoking.”
Patricia Walsh Greene smoked her first Marlboro at 13 and said she soon became addicted, smoking a pack of cigarettes a day by high school. She claimed she received “many small packs of cigarettes as free samples” in school and after many attempts was able to quit in 1995. In 1980 she said she switched to Marlboro Lights to avoid “the bad stuff” in Reds.
Plaintiff expert Dr. Kenneth Cummings testified about a coordinated campaign by cigarette manufacturers to spend “billions of dollars to execute a pervasive and long-lasting campaign” to deny that smoking causes lung cancer. That effort included launching “filtered” and “light” cigarettes that manufacturers promoted as being healthier, despite internal studies showing smokers compensated in ways that increased their total intake of tar and nicotine.
Philip Morris argued the evidence wasn’t sufficient to prove liability for civil conspiracy, saying the plaintiff admitted she knew smoking was dangerous and didn’t rely on advertising to take up the habit. Greene testified she never read many of the documents her expert cited, but the Supreme Court ruled that didn’t matter because jurors could conclude she was at the very least convinced filtered Marlboro Lights were safer.
“The jury could have found that Greene would have smoked less, or quit sooner, absent the conspiracy's campaign of fraud and deception,” the court concluded.
Plaintiff lawyers suing ExxonMobil, BP and other oil companies similarly argue the industry misled consumers about human-induced global warming, leading them to consume more hydrocarbon fuels than they otherwise would have and accelerating sea level rise and other ill effects.
Philip Morris also argued the judge improperly instructed the jury it could find it liable for substantially contributing to Greene’s decision to smoke instead of a stricter but-for causation theory. The high court said that may be correct, but the company forfeited the argument by failing to object at trial.
Finally, the court rejected Philip Morris’s argument the statutory 12% post-judgment interest rate, set in 1982, was irrationally high given market conditions. Courts in Vermont, Rhode Island and New York have upheld similar statutory rates, the Supreme Court said, so “despite the arguable windfall this rate provides in a low-interest economy” it is comparable to what Philip Morris could have earned by investing the funds.
Greene was represented on appeal by Michael Bogdanow of Meehan, Boyle, Black & Bogdanow. The case drew friend-of-the-court briefs from the National Consumer Law Center, Massachusetts Defense Lawyers Association and the Massachusetts Academy of Trial Attorneys.