GANTS, J.
Marie R. Evans (Marie) died in 2002, at the age of
Following trial, Lorillard moved for judgment notwithstanding the verdict, a new trial, remittitur, and amendment of the G. L. c. 93A decision. The judge denied the posttrial motions except for the motion for remittitur, which she allowed in part, reducing the amount of compensatory damages to the plaintiff to $10 million, and to Marie's estate to $25 million, but denying any remittitur as to punitive damages. The plaintiff accepted the remittitur, Lorillard appealed from the judgment, and we granted the plaintiff's application for direct appellate review.
We affirm the judgment only in part. We conclude that the jury were adequately instructed regarding the claim of wrongful
We also vacate the judgment arising from the judge's finding that Lorillard committed unfair or deceptive acts or practices in the conduct of trade or commerce, in violation of G. L. c. 93A, § 2 (§ 2). We conclude that the judge erred in finding that Lorillard voluntarily undertook a legal duty through its public commitment in 1954, and that the judge improperly applied the doctrine of offensive collateral estoppel against Lorillard by adopting over thirty-eight findings from a Federal racketeering case against Lorillard and other cigarette manufacturers. In
Background. Because Lorillard contends that the evidence is insufficient as a matter of law to sustain the jury's verdict, we summarize the evidence at trial in the light most favorable to the plaintiff. We reserve our recitation of some of the evidence for our analysis of Lorillard's specific claims of error.
1. Marie's smoking history. In 1960, when Marie was thirteen years old, she began smoking Newport cigarettes. She started smoking cigarettes because she saw other people smoking "and they looked attractive doing it," and because "[i]t made you grown up, made you feel like an adult."
When she was a child and teenager, she heard people refer to cigarette smoking as an addiction. She remembered the 1964 United States Surgeon General's report describing cigarette smoking as habit forming and as a cause of lung cancer. However, she testified that she was not convinced by these statements:
As an adult, Marie smoked an average of thirty Newport cigarettes each day — one and one-half packs of cigarettes. She was so addicted to cigarettes that she would smoke within five minutes of waking up each morning. At least ninety per cent of the cigarettes she smoked in her life were Newports. She once tried Merit, another brand of cigarette, because it was supposed to be less harmful, but she did not like the taste.
In 1970, when Marie's father died from lung cancer, she drew a connection between her father's lung cancer and his having been a "lifelong smoker," but she "gave no thought" as
In 1997, Marie quit smoking for four to five months. When she returned to smoking, she told her doctor she did so "due to social influences." In December, 2001, a medical oncologist informed her that she likely had metastatic small cell lung cancer. Within seven months of that diagnosis, she was dead. The parties stipulated that smoking caused the lung cancer that led to her death.
2. Health risks of smoking Newport cigarettes. The plaintiff offered the testimony of three experts (Dr. Kenneth M. Cummings, Dr. William A. Farone,
a. Tar. The particulates that result from burning tobacco are collectively known as "tar." "The tar is the taste in a cigarette," so a smoker would "have a better taste experience from the product" if the cigarette were designed to allow more of the tar
b. Nicotine. Nicotine is a chemical that exists naturally in tobacco plants. When a cigarette is smoked, the nicotine in the tobacco is carried on the tar into the lungs. From there, the nicotine gets absorbed into the bloodstream and arrives at the brain within about seven to ten seconds. In the brain or in the lungs, nicotine binds to certain "nicotinic receptors," which triggers the release of various hormones. The most critical hormone that is released by the binding of nicotine to its receptors is dopamine, a chemical that "has the attribute of making you feel good." By triggering the release of dopamine, nicotine can partially satisfy the craving for food, which is why those who smoke have an easier time keeping their weight down. Nicotine also stimulates the release of norepinephrine, creating a stimulant effect that helps a smoker wake up and feel more alert. Nicotine can also enhance the release of acetylcholine, which can assist with arousal and cognitive function; stimulate the release of serotonin, which can modulate mood and potentially help with depressed feelings; and stimulate the release of endorphins and gamma amino butyric acid, which reduce anxiety and tension.
Nicotine is as or more addictive than any other drug of abuse, including heroin and cocaine. Even Lorillard's expert, Dr. Kathleen Brady, an addiction psychiatrist, agreed with the description of nicotine dependence as a "severe illness." In an article Brady coauthored, nicotine is described as "among the most addictive substances known," and the article asserted that "there's a greater likelihood that a person who starts smoking will become dependent than a person who starts using heroin," cocaine, or alcohol. As a smoker continues to expose herself to nicotine, the smoker's brain will develop new receptors to get the effect of the drug. This effect, known as "drug tolerance," results in the smoker needing more nicotine to get the same effect from
While the strength of an individual's nicotine addiction will vary with the average number of cigarettes smoked each day, a young person smoking just one cigarette per day and an adult smoking five cigarettes per day will suffer from addiction. The addiction strengthens over time, and the earlier a person starts smoking, the harder it is to quit. Most smokers start early in life. The average age at which individuals begin to smoke is fourteen and one-half years, two-thirds start by the age of eighteen, and few start after the age of twenty-five.
The addictive power of nicotine is reflected in the testimony of Dr. Cummings that there are approximately 48 million smokers in the United States, of whom approximately seventy per cent want to quit, but only approximately 17 million actually try each year to quit. Of those who try to quit, only three per cent succeed in not smoking for six months.
Discussion. 1. Implied warranty of merchantability. Under the wrongful death statute, G. L. c. 229, § 2, Lorillard is liable if its negligence or wilful, wanton, or reckless act caused Marie's death, or if it "is responsible for a breach of warranty arising under Article 2 of [G. L. c. 106]" that caused her death. Under G. L. c. 106, § 2-314(2)(c), of the Uniform Commercial Code, apart from exceptions not applicable here, a warranty that goods, such as cigarettes, are merchantable is implied in a contract for their sale, and goods are merchantable if they are "fit for the ordinary purposes for which such goods are used." "A seller breaches its warranty obligation when a product that is `defective and unreasonably dangerous' ... for the `[o]rdinary purposes' for which it is `fit' causes injury." Haglund v. Philip Morris Inc., 446 Mass. 741, 746 (2006) (Haglund), quoting Colter v. Barber-Greene Co., 403 Mass. 50, 62 (1988) (Colter). A product may be defective and unreasonably dangerous because of a manufacturing defect, a design defect, or a warning defect, that is, a failure reasonably to warn of the product's foreseeable risks of harm. See Restatement (Third) of Torts: Products Liability § 2, at 14 (1998) (Third Restatement) ("product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings"). Here, the plaintiff alleged, and the jury found, a design defect and a warning defect, with the warning defect limited to the period before 1970. While these defects are separate and distinct and may each be found to have caused Marie's death, the special verdict form asked the jury whether "any breach of warranty" caused Marie's death, and did not ask
On appeal, Lorillard claims various errors regarding these two theories of liability. First, Lorillard claims that the judge erred by instructing the jury that, in determining whether the product's design was reasonably safe, they "may also consider" whether Newport cigarettes met consumers' reasonable expectations as to safety, rather than that they "must" consider consumers' reasonable expectations. Lorillard contends that the plaintiff was required to prove that Newport cigarettes were more dangerous than consumers reasonably expected, and that the plaintiff offered no evidence to meet this required element of proof. Second, it argues that the plaintiff failed to prove a safer alternative design that would be an acceptable substitute to ordinary smokers, and that therefore the jury could not have found Newport cigarettes to be defective based on their levels of tar and nicotine without finding that all cigarettes are defective, thereby imposing categorical product liability on cigarettes. Third, it claims that the evidence is insufficient to support the jury's finding of a failure to warn, because the health risks from cigarettes were obvious to all before 1970 and there is no duty to warn of an obvious risk. We address each of Lorillard's claims in turn.
a. Reasonable consumer expectations of product safety. By arguing that the judge erred in instructing the jury that they
Under § 402A of the Second Restatement, a seller is liable for physical harm caused to the ultimate user if it "sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property." Second Restatement, supra at § 402A, at 347. Comment i to § 402A recognizes that "[m]any products cannot possibly be made safe for all consumption," and defines an "unreasonably dangerous" product as one that is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Second Restatement, supra at § 402A comment i, at 352. Comment i directly addresses when tobacco would be unreasonably dangerous: "Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous." Id.
Under § 2 of the Third Restatement, "[a] product ... is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design ... and the omission of the alternative design renders the product not reasonably safe." Third Restatement, supra at § 2(b), at 14. Under what the Third Restatement describes as its reasonableness or risk-utility balancing test, a plaintiff must prove that a reasonable alternative design "was, or reasonably could have been, available at time of sale or distribution," that would have reduced the foreseeable risks of harm posed by the product at reasonable cost, and that the failure to adopt the safer alternative was unreasonable. See Third Restatement, supra at § 2 comment d, at 19. See also Third Restatement, supra at § 2 comment f, at 24. In determining whether a reasonable alternative design was practicable, a trier of fact may consider whether the alternative design is in
Third Restatement, supra at § 2 comment f, at 23.
While consumer expectations may be considered in the risk-utility balancing, the Third Restatement makes it clear that, in sharp contrast with the Second Restatement, "consumer expectations do not play a determinative role in determining defectiveness." Third Restatement, supra at § 2 comment g, at 27. "The mere fact that a risk presented by a product design is open and obvious, or generally known, and that the product thus satisfies expectations, does not prevent a finding that the design is defective." Id. at 28. Thus, the Third Restatement recognizes the possibility that a product may be made significantly safer through a reasonable alternative design even when consumers, unaware of the alternative design, expect the product to be no safer than it is.
The vast majority of States have adopted the risk-utility balancing test of the Third Restatement rather than the consumer expectations test of the Second Restatement. See Branham v.
Since 1978, well before the Third Restatement was adopted, we have recognized that consumer expectations are simply a factor, albeit an important factor, in determining whether a product is unreasonably dangerous. See Back v. Wickes Corp., 375 Mass. 633, 642 (1978) (Back) ("fitness" of product "and all others of the same design is a question of degree, depending largely, although not exclusively, on reasonable consumer expectations").
The defendant argues that we explicitly adopted the Second Restatement's consumer expectations test as the determinative standard of whether a product is unreasonably dangerous in Commonwealth v. Johnson Insulation, 425 Mass. 650, 660-661 (1997) (Johnson Insulation). There, quoting comment i to § 402A of the Second Restatement, we declared, "An article is not unreasonably dangerous merely because some risk of harm is associated with its use, but only where it is dangerous `to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.'" However, this assertion is dictum in the Johnson Insulation case, because the basis for finding the product unreasonably dangerous in that case was a warning defect, not a design defect. Id. at 661 ("both the Commonwealth and Johnson focused on the `failure to warn' basis for finding a product unreasonably dangerous, and we
Therefore, the judge did not err in instructing the jury that they "may," rather than that they "must," consider whether Newport cigarettes met consumers' reasonable expectations as to safety. And because reasonable consumer expectations are simply one of many factors that may be considered and not necessarily the determinative factor, the plaintiff was not obligated to prove that Newport cigarettes were more dangerous than consumers reasonably expected. See Third Restatement, supra at § 2 comment f, at 23 ("plaintiff is not necessarily required to introduce proof on all of these factors; their relevance, and the relevance of other factors, will vary from case to case").
b. Reasonable alternative design of a cigarette. "To establish a prima facie case of defect, the plaintiff must prove the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff's harm." Third Restatement, supra at § 2 comment f, at 24. See Colter, supra at 57, quoting Uloth v. City Tank Corp., 376 Mass. 874, 881 (1978) ("there is a case for the jury if the plaintiff can show an available design modification which would reduce the risk without undue cost or interference with the performance of the machinery").
The plaintiff presented evidence at trial that cigarettes are a highly engineered product, that the defendant manipulated its product to give the smoker a particular dose of tar and nicotine,
There was abundant evidence that this alternative was technologically feasible. Patents to extract nicotine from tobacco have existed since the 1920s, and Dr. Farone stated that "certainly by the [19]40s there was technology available to remove nicotine from tobacco." Dr. Cummings testified that it
There was also evidence that a safer alternative cigarette was feasible as to cost. According to a 1977 Lorillard memorandum, the manufacturing costs for a hypothesized Lorillard cigarette with "ultra-low tar" and 0.35 milligrams of nicotine per cigarette would be higher than usual, but "these costs [would] be more than offset by the reduction in the amount of tobacco used."
Lorillard, however, contends that, even if a low tar, low nicotine cigarette were a technologically feasible alternative design that could be produced at comparable cost, it was not a reasonable alternative design because "carcinogenic levels of tar and addictive levels of nicotine ... are inherent in all ordinary cigarettes," and the "inherent risks of smoking ... cannot be removed without fundamentally altering the nature of the product." The jury rejected this argument through their
Having failed to persuade the jury, Lorillard contends on appeal that the evidence at trial was insufficient as a matter of law to support a finding of a reasonable alternative design. It essentially makes two arguments. First, it contends that the alternative design proffered at trial was not truly a cigarette, and that the jury essentially found that all cigarettes were defective, thereby imposing categorical product liability on all cigarettes. We agree with Lorillard that, in a case where the allegedly defective product is a cigarette, the reasonable alternative design must also be a cigarette, and that a jury may not impose categorical liability on all cigarettes. See Kyte v. Philip Morris Inc., 408 Mass. 162, 172 (1990) (suggesting claim that "all cigarettes are bad" would fail or be preempted). But the evidence was more than sufficient to permit a reasonable jury to conclude that the alternative design proffered by the plaintiff was a cigarette, especially where the plaintiff's experts identified brands of cigarettes that implement the alternative design that have long been sold commercially as cigarettes. We do not accept Lorillard's implicit suggestion that every cigarette, to be a cigarette, must contain levels of tar that cause a high risk of cancer and levels of nicotine that are addictive. The plaintiff in this case provided substantial evidence of cigarettes on the market that do not contain such levels of tar or nicotine.
Second, Lorillard contends that, even if the alternative design
The essential question is not whether the safer alternative design is an "ordinary cigarette" but whether adoption of the safer alternative design would result in undue interference with the cost or performance of the product, thereby making the alternative unreasonable. See Colter, supra at 57; Uloth v. City Tank Corp., supra at 881. Whether any interference with the cost or performance of the product is "undue" is generally a question for the jury, because many safer alternatives may increase the cost of a product or interfere to some degree with its performance, such as where the addition of a safety shield to a machine tool makes it both more expensive and harder and slower to operate. But the question becomes one of law where, viewing the evidence in the light most favorable to the plaintiff, the interference with the cost or performance of the product is so substantial that no reasonable jury could conclude that it offers a reasonable alternative to consumers of the product. For example, an automobile is not a reasonable alternative to a motorcycle, even if it were proven safer, solely because it has four wheels rather than two. To add two wheels to a motorcycle would create a fundamentally different product and destroy the product's distinct utility in the eyes of any potential consumer. See Third Restatement, supra at § 2 comment f, illustration 9, at 26-27.
Lorillard contends that the safer alternative cigarette proffered by the plaintiff is not a reasonable alternative as a matter of law because, as the plaintiff's experts conceded at trial, "ordinary smokers" — meaning smokers who are addicted to the nicotine in tobacco — will not smoke cigarettes that will not provide them with the nicotine they crave to satiate their addiction, which is why the alternative cigarettes that are commercially sold have a small share of the market. Before we
Therefore, the evidence at trial would adequately support a finding that a cigarette with low tar and nicotine was a reasonable alternative to an individual who retained the unimpaired ability to make a rational, informed choice whether to smoke, such as an individual who was considering whether to start smoking or an individual who smoked infrequently or in small
The question, then, is which subclass of consumers should be considered in evaluating the reasonableness of the alternative design? Lorillard's argument, stripped to its essence, is that the chemical in a product that causes consumers to be powerfully addicted to the product can never be found to constitute an unreasonably dangerous defect because no alternative design that did not contain addictive levels of the chemical will satisfy addicts' craving for the chemical and therefore be purchased by those addicted. If this argument were to prevail, addictive chemicals would be the only substance whose presence in a product could not, as a matter of law, be found to constitute a defect in the product's design, because there could be no reasonable alternative design that did not include them. And the more powerfully addictive the chemical, the more it would be protected from product liability.
We decline to place addictive chemicals outside the reach of product liability and give them special protection akin to immunity based solely on the strength of their addictive qualities. To do so would eliminate any incentive for cigarette manufacturers to make safer perhaps the most dangerous product lawfully sold in the market through reasonable alternative designs.
Few courts appear to have addressed this question, perhaps because the only legally sold product so addictive as to raise the question is nicotine, and the courts that have done so provide little relevant guidance. The United States Court of Appeals for the Seventh Circuit, in evaluating whether "the average consumer at the time in question" fully appreciated the health risks of smoking, recognized that it needed to "define this imaginary `average consumer.'" Insolia v. Philip Morris Inc., 216 F.3d 596, 599 (7th Cir. 2000). Recognizing "[n]icotine's addictive grip," the court concluded that "the state of knowledge of the average consumer must be measured before the average person is hooked and is no longer capable of making a rational choice." Id.
The Florida Supreme Court affirmed a jury's finding that a cigarette manufacturer had committed a breach of the implied warranty of merchantability where an alleged defect in the cigarettes' design was the addictive level of nicotine, but the court did not set forth its reasons for affirming this finding. Engle v. Liggett Group, Inc., 945 So.2d 1246, 1276-1277 (Fla. 2006), cert. denied sub nom. R.J. Reynolds Tobacco Co. v. Engle, 552 U.S. 941 (2007).
In contrast, in Adamo v. Brown & Williamson Tobacco Corp.,
Because cigarettes are unique among lawfully sold products in being so powerfully addictive, it is doubtful that our ruling requiring a reasonable alternative design to be evaluated through the eyes of a rational, informed consumer, whose freedom of choice is not substantially impaired by addiction, will have any significant consequence on liability actions involving any other product. In Haglund, supra at 751-752, we recognized that cigarettes are unusual in that any reasonable use of the product is foreclosed by the dual risks of serious disease and addiction, and we therefore barred cigarette manufacturers in most circumstances from offering as a defense in a product liability action the plaintiff's unreasonable use of cigarettes, the so-called Correia defense. See Correia v. Firestone Tire & Rubber Co., 388 Mass. 342 (1983). Just as we needed in Haglund to adapt our product liability jurisprudence to the inherent danger of smoking, so too do we need here to adapt our product liability jurisprudence to the inherent addictive potency of certain cigarettes. And just as the defendants in that case argued that
Finally, even though the evidence was essentially undisputed that the tar and nicotine in Newport brand cigarettes caused Marie's lung cancer, Lorillard argues that no reasonable jury could have found that any design defect in Newport cigarettes caused her death because the evidence at trial was that she tried and rejected a brand of cigarettes with lower tar and nicotine. In making this argument, Lorillard misunderstands the meaning of causation in products liability. Where a plaintiff proves that a product is defective, she may establish causation by proving that the defect caused her injury; the plaintiff need not prove that she would have used a reasonable alternative design had one been available. Colter, supra at 63, quoting Correia v. Firestone Tire & Rubber Co., supra at 355 ("Because warranty liability focuses on whether the product was defective and unreasonably dangerous and not on the conduct of the user or the seller, `the only duty imposed on the user is to act reasonably with respect to a product which he knows to be defective and dangerous'"); Third Restatement, supra at § 1, at 5 (product manufacturer "who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect" [emphasis added]).
Here, the plaintiff submitted sufficient evidence for a reasonable jury to conclude that the combined effect of the nicotine and tar consumed by smokers of Lorillard's Newport cigarettes was a substantial factor in bringing about Marie's addiction, lung cancer, and wrongful death, and that her injury would have been reduced or avoided had she smoked cigarettes with a reasonable alternative design that would have resulted in a nonaddictive level of nicotine and a reasonably safe level of carcinogenic
c. Warning defect for the period before 1970. As noted earlier, the jury found that Lorillard violated the implied warranty of merchantability not only because of a design defect, but also because of a warning defect arising from its failure to provide Marie an adequate warning of the health hazards or addictive properties of Newport cigarettes before 1970. Lorillard contends that the evidence was insufficient as a matter of law to support this finding because the risks of smoking were widely reported before Marie started smoking in 1960 and there is no common-law duty to warn of a known or an obvious risk.
"Even if a product is properly designed, it is unreasonably dangerous and, therefore, it is not fit for the purposes for which such goods are used, if foreseeable users are not adequately warned of dangers associated with its use." Hayes v. Ariens Co., 391 Mass. 407, 413 (1984). "However, we have recognized that, `where the danger presented by a given product is obvious, no duty to warn [exists] because a warning will not reduce the likelihood of injury.'" Bavuso v. Caterpillar Indus., Inc., 408 Mass. 694, 699 (1990), quoting Colter, supra at 59. This is consistent with the Third Restatement, which provides, in § 2 comment j, at 31: "In general, a product seller is not subject to liability for failing to warn or instruct regarding risks and risk-avoidance measures that should be obvious to, or generally known by, foreseeable product users."
Marie began to smoke in 1960. In 1965, the United States Congress enacted the Federal Cigarette Labeling and Advertising Act, Pub. L. 89-92, § 4, 89th Cong., 1st Sess., 79 Stat. 282, 283 (Labeling Act), which required all cigarette packages to bear the warning, "Caution: Cigarette Smoking May Be Hazardous to Your Health." Before this requirement took effect in 1966, there were no warnings on retail packages of Newport
In 1967, the Federal Trade Commission (FTC) issued a report stating that the warning label on cigarette packages had "not succeeded in overcoming the prevalent attitude toward cigarette smoking created and maintained by the cigarette companies through their advertisements, particularly the barrage of commercials on television, which portray smoking as a harmless and enjoyable social activity that is not habit forming and involves no hazards to health." The report concluded that "[c]igarette commercials continue to appeal to youth and continue to blot out any consciousness of the health hazards." In 1970, Congress amended the mandated warning label on cigarette packages to state: "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous To Your Health," with the warning becoming effective on November 1, 1970. Public Health Cigarette Smoking Act of 1969, Pub. L. 91-222, § 4, 91st Cong., 2d Sess., 84 Stat. 87, 88, 90 (1969 Act). The 1969 Act also declared that, apart from this warning, "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes." Id. at § 5.
Viewing the evidence in the light most favorable to the plaintiff, we conclude that a reasonable jury could find that the risks of cigarette smoking were certainly not obvious before 1966, when the warning on cigarette packages ordered by Congress provided only that "cigarette smoking may be hazardous to your health," and were still not obvious before 1970, when the warning was stiffened to declare that "the Surgeon General has determined that cigarette smoking is dangerous to your health" (emphases added). As the United States Court of Appeals for the Sixth Circuit declared in Tompkin v. American Brands, 219 F.3d 566, 572 (6th Cir. 2000):
See Burton v. R.J. Reynolds Tobacco Co., 884 F.Supp. 1515, 1526 (D. Kan. 1995) (rejecting assertion "that because there is general common knowledge that cigarettes are dangerous, users of cigarettes are therefore imputed with knowledge of the extent and nature of all dangers relating to cigarettes"). While the general public may have understood before 1970 that cigarettes posed a general risk to health, the plaintiff presented considerable evidence that Lorillard, along with other cigarette manufacturers,
Lorillard also argues that there is no duty to warn one who is aware of the risk, and that Marie knew cigarettes were dangerous when she started smoking in 1960. "The duty to warn ... does not attach where ... the plaintiff appreciated the danger substantially to the same extent as a warning would have provided." Carey v. Lynn Ladder & Scaffolding Co., 427 Mass. 1003, 1004 (1998). Viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could conclude that Marie was not aware of the health risks of smoking when she started to smoke in 1960 at the age of thirteen and that, in 1964 when she became aware of the publicity surrounding the Surgeon General's report, she did not appreciate the danger of smoking Lorillard's Newport cigarettes to the same extent as a warning would have provided. Her deposition testimony evidenced the extent to which the cigarette manufacturers' efforts to raise doubts as to whether cigarettes caused cancer succeeded: "you really didn't rely on anyone's opinion as to being the true cause of what causes cancer."
Finally, Lorillard argues that there was no evidence that its failure to warn of the foreseeable dangers arising from the use of Newport cigarettes caused Marie's injury because she did not heed the warnings placed on Lorillard's cigarette packages since 1966. We are not persuaded by this argument. In Massachusetts, "[t]he law permits an inference that a warning, once given, would have been followed." Harlow v. Chin, 405 Mass. 697, 702-703 (1989). Once a plaintiff establishes that a warning should have been given, the burden is on "the defendants to come forward with evidence tending to rebut such an inference." Wolfe v. Ford Motor Co., 6 Mass.App.Ct. 346, 352 (1978).
In conclusion, the jury were appropriately instructed as to both a design defect and a warning defect and, although we do not know whether the jury found causation as to one or both defects, the evidence was sufficient to support the jury's finding on either theory.
2. Negligence. The jury found that Lorillard was "negligent in the design, marketing and/or distribution of Newport cigarettes," that Lorillard was "negligent in failing to warn Marie Evans of the health hazards and/or addictive properties of Newport cigarettes at any time prior to 1970," and that Lorillard "negligently distribute[d] Newport cigarettes by giving samples of such cigarettes to minors, including Marie Evans." However, as with breach of the implied warranty, the jury were not asked to find causation as to each theory of negligence but instead were asked whether "any negligence" of Lorillard was "a substantial factor in causing Marie Evans's lung cancer." Therefore, because we cannot know on which theory or theories the jury found causation, the jury's finding of liability for negligence may stand only if the jury were correctly and adequately instructed on each theory of negligence.
As to negligent design, the judge instructed the jury that they "may" but were "not required to consider whether there was a safer alternative design available." This instruction was timely objected to by the defendant at trial and constituted prejudicial error. In claims alleging negligence in the design of a product, as with claims of a design defect in breach of the implied warranty
As to negligent marketing, the judge provided the jury with no guidance as to the duty a cigarette manufacturer would owe in the marketing of its products, which, if breached, could give rise to a cognizable claim of negligence. Presumably, the plaintiff's theory of negligent marketing was that Lorillard had marketed cigarettes to minors when Marie was a minor, because the plaintiff offered evidence to support this claim. See Kyte v. Philip Morris Inc., 408 Mass. 162, 170 n.8 (1990), citing Killeen v. Harmon Grain Prods., Inc., 11 Mass.App.Ct. 20, 28 (1980) (observing that Appeals Court noted in dicta that "manufacturer's liability might be based on the marketing of a product in a manner calculated to induce direct purchases by children whose use would involve unreasonable risk of injury"). But the plaintiff also offered substantial evidence that Lorillard marketed its Newport cigarettes to African-American adults. Some of this evidence may have been relevant to show that Lorillard marketed its products to African-American children at a time when Marie, who was African-American, was a child, but the jury were not limited in the use of this evidence. Lorillard timely objected to
We conclude that the absence of guidance as to the meaning of negligent marketing and of any limitation as to its scope was prejudicial because we cannot know what marketing duty the jury found Lorillard to have breached. Specifically, we cannot know whether the jury found that Lorillard engaged in negligent marketing by targeting African-American adults, which would not constitute a breach of any legal duty.
Where we cannot ascertain on which theory the jury relied in finding causation, the jury's finding of liability as to negligence cannot stand. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 119 (2000). See also Blackstone v. Cashman, 448 Mass. 255, 271 (2007). Therefore, we must vacate the jury's finding of liability for wrongful death based on the theory of negligence because we conclude that the jury were incorrectly instructed as to negligent design and inadequately instructed as to negligent marketing.
3. Breach of a voluntarily assumed duty. In 1954, Lorillard joined most of the major cigarette manufacturers in issuing "A Frank Statement to Cigarette Smokers" (Frank Statement), a full-page advertisement in major newspapers reaching over 40 million people. In this statement, the cigarette manufacturers stated that they would "accept an interest in people's health as a basic responsibility, paramount to every other consideration in our business," that they believed the products they made were "not injurious to health," and that they "always have and always will cooperate closely with those whose task it is to safeguard the public health." Finally, the cigarette manufacturers pledged "aid and assistance to the research effort into all phases of tobacco use and health." Lorillard was a member of both the Tobacco Industry Research Committee (TIRC), which was formed as a result of the Frank Statement, and the Tobacco Institute (TI), which was founded in 1958. The pledge made in the Frank Statement was reaffirmed by the TIRC in 1958 and by the TI in 1977.
The plaintiff submitted substantial evidence at trial that, despite this pledge, Lorillard and its fellow members of the TIRC and
At trial, the plaintiff alleged, and the jury found, that by joining in the 1954 Frank Statement, Lorillard voluntarily undertook a duty to research the health hazards of smoking and to disclose accurate information regarding the results of that research to the general public, including Marie. "If a person voluntarily assumes a duty or undertakes to render services to another that should have been seen as necessary for her protection, that person may be liable for harm caused because of the negligent performance of his undertaking." Cottam v. CVS Pharmacy, 436 Mass. 316, 323-324 (2002) (Cottam), quoting Thorson v. Mandell, 402 Mass. 744, 748 (1988). See Second Restatement, supra at § 323, at 135. "Defining the scope of the duty assumed is a fact-specific inquiry" that focuses on the totality of a company's communications with its customers and customers' reasonable understanding, based on those communications, of what, if any, obligation, the company has undertaken to assume. Cottam, supra at 324, 326. In the Cottam case, for instance, we noted that "[w]hen a pharmacy's communication with a patient concerning a drug is limited to a single label warning of only one side effect, the pharmacy has undertaken a duty to warn correctly as to that specific side effect but has not undertaken a broader duty to warn of all potential side effects." Id. at 325. But where "the patient could reasonably interpret the warning
Numerous courts have considered whether cigarette manufacturers voluntarily assumed a legal duty by joining the Frank Statement, and to our knowledge, all have concluded that they did not. See Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 936 (3d Cir. 1999), cert. denied, 528 U.S. 1105 (2000) ("Converting a company's marketing into a special undertaking to inform the public about the known risks of its products would subject every manufacturer that advertises its products to liability for a `special duty' created by such marketing, and that duty would be violated by every material omission in such advertising"); Baryo v. Philip Morris USA, Inc., 435 F.Supp.2d 961, 970 (W.D. Mo. 2006) ("Plaintiffs cannot possibly prove that [cigarette manufacturer defendants] undertook such a special duty through advertisements aimed at the general public," and that "same conclusion has been reached in every other cigarette case alleging breach of a special duty of which this Court is aware"); Massachusetts Laborers' Health & Welfare Fund v. Philip Morris, Inc., 62 F.Supp.2d 236, 245-246 (D. Mass. 1999) (plaintiff's claims that cigarette manufacturer defendant committed breach of voluntarily assumed duty created by Frank Statement "fail to state viable claims under Massachusetts law"); Kentucky Laborers Dist. Council Health & Welfare Trust Fund v. Hill & Knowlton, Inc., 24 F.Supp.2d 755, 774 (W.D. Ky. 1998) (although cigarette manufacturer defendants "may have made vaguely promissory statements to the general public," this claim "failed to allege that [d]efendants undertook to do anything specific for any particular person or entity, much less that they assumed a duty to render services of any sort to the [plaintiffs]"); Wright v. Brooke Group Ltd., 652 N.W.2d 159, 178 (Iowa 2002) ("We do not think the defendants' statements that they would report on the results of their research into the health effects of cigarette smoking was an undertaking to render a service to its customers").
We, too, conclude that, by joining the Frank Statement, Lorillard did not voluntarily undertake a legal duty it otherwise did
4. Punitive damages. Because we have vacated the finding of negligence liability and reversed the finding of breach of a voluntarily undertaken duty, we must also vacate the jury's findings that Lorillard was grossly negligent and that Lorillard acted in a manner that was malicious, wilful, wanton, or reckless. We cannot be confident that the jury's findings on these issues were untainted by the aforementioned errors. Consequently, we must also vacate the jury's award of punitive damages for wrongful death under G. L. c. 229, § 2.
5. Statute of limitations. Lorillard argues that the plaintiff's claims are time barred because they accrued in 1985, when Marie realized that Lorillard's alleged misconduct had caused her harm after she suffered a heart attack, but the complaint was not filed until 2004. Lorillard waived its right to a jury trial on this defense by not requesting that the jury make a factual finding regarding the accrual of the claim in the special verdict, see Mass. R. Civ. P. 49 (a), 365 Mass. 812 (1974), but preserved its legal claim that the statute of limitations period should have commenced in 1985. The judge impliedly found that the complaint was timely filed by issuing the judgment in favor of the plaintiff on the special verdict, and we review the judge's
Generally, under our discovery rule, a claim accrues and the statute of limitations clock commences when a plaintiff knows, or reasonably should have known, "that she has been harmed or may have been harmed by the defendant's conduct." Bowen v. Eli Lilly & Co., 408 Mass. 204, 205-206 (1990).
Thus, Marie's cause of action for injuries resulting from her lung cancer accrued when she knew or reasonably should have known that she had developed lung cancer from smoking Lorillard's Newport cigarettes. This occurred when she was diagnosed with metastatic small cell lung cancer in December, 2001. See Nicolo v. Philip Morris, Inc., 201 F.3d 29, 36 (1st Cir. 2000) ("Unlike impairments to breathing, cancer does not lend itself to lay identification. It is most dependent upon medical diagnosis"). The plaintiff's claims in this case are not time barred by the three-year statute of limitations in G. L. c. 260, § 2A, because his complaint was filed on June 28, 2004.
6. Alleged trial errors. Lorillard argues that the judge made numerous errors that denied it a fair trial. We address separately each claim of error.
a. Jury selection. Lorillard contends that the judge conducted insufficient voir dire of the venire because she denied Lorillard's request for the use of a jury questionnaire, refused to ask Lorillard's proposed voir dire questions, and asked only the mandatory questions under G. L. c. 234, § 28, and Mass. R. Civ. P. 47(a), 365 Mass. 812 (1974). The judge provided each day's venire with a brief summary of the facts of the case clearly indicating that the case would involve determining the liability of a cigarette company for allegedly misleading conduct and for the design of its cigarettes. Among other questions, she asked whether any prospective juror had "any personal interest in this case," whether any prospective juror had "formed or expressed any opinion with regard to this case," and whether any prospective juror was "aware of any reason" why he or she could not or did not "stand indifferent, impartial, with respect to this case." If any prospective juror answered any of these questions affirmatively, the judge conducted an individual examination of that juror at sidebar, and as a result of this process, many prospective jurors were excused because they identified some reason why they could not be impartial. We conclude that this process satisfied the requirements of G. L. c. 234, § 28, and Mass. R. Civ. P. 47(a), and that the judge did not abuse her discretion in conducting the voir dire.
b. Trial judge's impartiality. Lorillard argues that it was denied its due process right to an impartial judge based on two statements made by the judge during trial. We conclude that neither of these statements reasonably suggests that the judge was partial.
The first statement relied on by Lorillard occurred when the judge informed the parties that she thought that the findings or the judgment in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) (Engle), could be used by the plaintiff for offensive collateral estoppel. The context of the judge's remarks was that the plaintiff did not appear to seek to use the findings in Engle for that purpose, and the judge was not sure for what purpose the plaintiff sought to use these findings if not for offensive collateral estoppel. These remarks did not affect the verdict, because
Lorillard also claims that the judge demonstrated her partiality when she considered the defendant's motion for directed verdict. The context of her challenged remark is that the defendant had just filed its motion for a directed verdict, and the judge was reading the defendant's reference in its brief to Second Restatement, supra at § 402A comment i, at 352, which states that "[g]ood tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful." The judge said that this was the first time she had seen something in a Restatement that she did not agree with. Defense counsel noted that knives, dynamite, and guns were products that were inherently dangerous but not unreasonably dangerous. The judge responded, "Well, if they have a use that is reasonable. What's the use of cigarettes but to cause cancer in their present form?" The judge's question was poorly framed, but it offered defense counsel an opportunity, which defense counsel used, to explain to the judge the benefits people obtain from smoking and the need to avoid categorical liability. We conclude that the question does not reflect partiality of the judge. The judge was familiar with our decision in Haglund, supra at 751, where we declared that cigarettes are distinct from other inherently dangerous products because "any reasonable use of the product whatsoever [is] foreclosed by the nature of the product itself."
c. Characterization of judicial findings in another case as an expert's conclusion. Lorillard argues that the judge denied the defendant a fair trial by directing the plaintiff to misrepresent findings from United States v. Philip Morris USA, Inc., 449 F.Supp.2d 1 (D.D.C. 2006), aff'd in part, rev'd in part, 566 F.3d 1095 (D.C. Cir. 2009), cert. denied sub nom. Lorillard Tobacco Co. v. United States, 130 S.Ct. 3502 (2010) (Philip Morris), as the findings of an "expert" to impeach Leonard H. Jones, Lorillard's director of direct marketing and market research. On direct examination, Jones testified that "Lorillard does not market Newport cigarettes or any of its cigarettes to youth or
Lorillard argues that the judge erred in allowing the judge in Philip Morris to be characterized in this cross-examination as an "expert." We agree.
In Commonwealth v. Sneed, 413 Mass. 387, 396 (1992) (Sneed), we adopted Proposed Mass. R. Evid. 803 (18), which provides:
While the judge erred in allowing the Federal judge's findings to be read in evidence as the hypothetical conclusions of an unnamed "expert," the error was not consequential. In answer to the plaintiff's counsel's question whether his opinion as to Lorillard's allegedly negligent marketing practices would be affected if an unidentified expert had made the stated conclusions, Jones answered, "I don't know that it would, because I don't believe that to be true." Not only was Jones's opinion unaffected by this line of questioning, but the jury were unlikely to be swayed by the hypothetical opinions of an unidentified "expert." In any event, the challenged line of cross-examination focused solely on the plaintiff's claims of negligent marketing and distribution, and we have already vacated the jury's liability findings as to these claims on other grounds.
d. Admission of evidence regarding African-American and youth marketing. Lorillard argues that the judge erred in admitting "racially-charged and inflammatory" and "entirely irrelevant"
Because the plaintiff alleged that Lorillard's negligent distribution of Newport cigarettes to minors was a substantial factor in causing Marie's lung cancer and death and because Marie was an African-American child in the 1950s and early 1960s, the judge did not err in admitting evidence that Lorillard marketed cigarettes to the African-American community, and to African-American children, when Marie was a minor. Because the plaintiff alleged negligent failure to warn and a warning defect in breach of the implied warranty of merchantability before 1970, and because Lorillard's cigarette advertising before 1970 was relevant to these claims to the extent it tended to show whether the risks of smoking were obvious to everyone (and to Marie) and, if not, whether such risks were adequately warned of during that time period, the judge did not err in admitting evidence that Lorillard marketed cigarettes to the African-American community before 1970. But Lorillard is correct that, over objection, the judge also admitted evidence of Lorillard's marketing of cigarettes to the African-American community after 1970, and did not limit the jury's consideration of this evidence. We conclude that the admission of this evidence was error, because it was irrelevant to any of the claims in this case. However, we also conclude that we have eliminated any material risk of prejudice arising from the admission of this evidence by vacating the jury's finding of negligence liability, because the risk posed by the admission of this evidence was that a jury might mistakenly understand that a cigarette manufacturer could be found negligent simply for marketing to the African-American community. We see no material risk that the admission of this evidence prejudiced the jury's finding of a breach of the implied warranty of merchantability.
The defendant also claims that the judge erred in admitting evidence that Lorillard marketed and distributed cigarettes to minors after Marie became an adult. The admission of such evidence would not be error if the judge were to instruct the jury that they could consider this evidence only to the extent they found it relevant to whether Lorillard marketed and
e. Admission of 1994 congressional testimony of Lorillard's then chairman and chief executive officer. Lorillard contends that the judge erred in admitting portions of the 1994 testimony of Andrew H. Tisch, then chairman and chief executive officer of Lorillard, to a congressional subcommittee where he stated under oath that he did not believe cigarette smoking caused cancer, and that he believed nicotine was not addictive. Lorillard argues that this evidence was irrelevant because there was no evidence that Marie actually heard or learned of this testimony. We have already noted the relevance of this testimony — it strongly rebuts Lorillard's assertion that the risks of smoking were so well known before 1970 that it had no duty to warn.
Lorillard also argues that, under the United States Supreme Court's Noerr-Pennington doctrine, the 1994 testimony "cannot be used as a basis for liability." See United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965) (Pennington); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) (Noerr). In Noerr, the Court declared that the antitrust laws should not be interpreted to prohibit private parties from petitioning Congress to take legislative action, even if the motivation of such petitioning efforts was to accomplish a restraint of trade. Id. at 137-138 ("To hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that the people cannot freely inform the government of their wishes would impute to the Sherman Act a purpose to regulate, not business activity, but political activity, a purpose which would have no basis whatever in the legislative history of that Act"). In Pennington, supra at 670, the Court extended this principle to the petitioning of executive officials, declaring that "[j]oint efforts to influence public officials do not
Here, the plaintiff did not allege at trial that Tisch's testimony before the congressional subcommittee was the basis of any of the plaintiff's claims. Rather, portions of Tisch's testimony were offered as evidence in support of these claims.
f. Exclusion of testimony regarding the color of cigarette packages and market share. Lorillard contends that the judge erred by precluding Jones's testimony regarding the color of packages of Kool and Salem brand cigarettes, products not manufactured by Lorillard, in the late 1950s and early 1960s. Lorillard sought to offer this evidence to show that the packages of cigarettes that Marie and other witnesses recalled being distributed to children in Orchard Park when Marie was a child were not Newport brand cigarettes, but were more likely Kool or Salem brand cigarettes, which were also mentholated.
The judge did not abuse her discretion in precluding this evidence. Jones could not testify as a fact witness on the issue because he lacked personal knowledge of the colors of cigarette packages during the relevant time period. He could not testify as an expert witness because the observable color of a cigarette package is not a proper subject matter for expert opinion. See
Lorillard also contends that the judge erred by precluding Jones's testimony about the proportional market shares of Newport, Kool, and Salem cigarettes in the relevant time period. Lorillard argues that this testimony was admissible to rebut Marie's testimony that part of the reason she started smoking Newports was because they were "what [she'd] see everybody else smoking," and to prove it unlikely that the sample packages Marie received actually contained Newport cigarettes. We conclude that the judge acted within her discretion in precluding Jones from answering the questions of Lorillard's counsel as to his opinion on "how well Newport sold compared to Kool and Salem in the late 1950s" and "what the market share of menthol cigarettes was in the year 1960." These questions asked Jones to give his opinion on the over-all, nationwide market share of each of the brands of menthol cigarettes. The judge did not abuse her discretion in sustaining the objections to these questions.
g. Plaintiff's counsel's suggestion that defense counsel intended to deceive the jury. One of Lorillard's primary defenses during trial to the plaintiff's claim of negligent marketing and distribution was that the free sample packages of cigarettes that Marie and some of the plaintiff's witnesses remembered receiving could not have been Newport cigarette packages because such witnesses described the packages as being a "pretty green color," "Kelly greenish," or "bright green" when the actual color of Newport packages was turquoise blue. During the direct examination of Jones by Lorillard's counsel, the witness was shown exhibit no. 914, a color photocopy of an advertisement for Newport cigarettes in the August, 1965, issue of Ebony Magazine, and was asked to state the color of the package of Newport cigarettes contained in the image. He described the color as turquoise blue; we have examined the advertisement depicted in this photocopy and find the color of the package to
We review a judge's decision not to declare a mistrial for abuse of discretion. Fialkow v. DeVoe Motors, Inc., 359 Mass. 569, 572 (1971). We find no abuse of discretion here. The question was improper as phrased, but the inquiry itself was not improper. The Newport cigarette package in the actual advertisement was far closer to green than the dark blue package depicted in the photocopy of the advertisement. The witness essentially attributed the difference solely to a poor color photocopier, but it was fair game for the plaintiff's counsel to challenge that explanation. The judge sustained the objection in front of the jury and invited defense counsel to suggest a limiting instruction. In her final instructions to the jury, the judge stated that "a question which is not answered[] is not to be considered by you at all." In a long, hard-fought trial, the judge acted within her discretion in deciding that the jury's impartiality would not be tainted by the plaintiff's counsel's single question suggesting that Lorillard's counsel had knowingly put in evidence a photocopy of an advertisement where the Newport cigarette package appeared more blue and less green than it actually was.
h. Admission of contested exhibits. Lorillard contends that it was denied a fair trial because the judge admitted over 150 of the plaintiff's exhibits "en masse" without ruling on objections to them and denied Lorillard the chance to raise specific objections to them. The truth is more complicated.
During trial, Lorillard's counsel informed the judge of his understanding that each proposed exhibit was "agreed," "admitted over an objection," or "marked for ID." Only the last category of documents would continue to have "ID" written on the sticker, reflecting that the parties had yet to agree on the admissibility of such documents and the judge had not yet ruled on their admission. The judge and the plaintiff understood that, once a document was admitted over objection, it was admitted in evidence, regardless of whether it was shown to a witness. After trial began, however, Lorillard articulated its understanding that no document admitted over objection would go to the jury unless it was shown to a witness and Lorillard had an opportunity to make a specific objection. The judge, in essence, ruled that, once a document was admitted over objection, it was admitted in evidence, regardless of whether it was shown to a witness at trial, but she offered Lorillard the opportunity to renew its objection to any specific exhibit, saying, "We can do that all day long if you want." The next day, rather than offer any argument that specific exhibits should not have been admitted, Lorillard rested on its general position that "[i]f exhibits were admitted over objection and not offered through a witness," such exhibits were not in evidence.
A judge reasonably may determine the relevance of documents by category, but the authenticity of a document, if not stipulated, generally must be decided individually based on the evidence at trial. If authenticity is truly at issue, the document should not be admitted in evidence until the judge has made a preliminary finding of fact that the document is authentic, generally based on the evidence at trial. Therefore, if authenticity were truly at issue, Lorillard is correct that a document should not have been admitted until its authenticity was established. But the judge reasonably understood that Lorillard's objections to the vast majority of these documents were not based on authenticity. Before the judge ruled on the admissibility of the various categories of documents, Lorillard's attorney stated, "We have stipulated to the authenticity of exhibits that we can in good conscience stipulate to, which means there are only a few that we didn't stipulate to."
i. Plaintiff's voluntary dismissal of the civil battery claim. The plaintiff alleged that Lorillard committed a civil battery by distributing free Newport cigarettes to Marie when she was a minor, and the claim reached the jury, with question five of the special verdict form asking whether Lorillard committed a civil battery and question six asking whether such a civil battery was a substantial factor in causing Marie to develop lung cancer. After several days of deliberation, the jury submitted the following question to the judge: "If we are at a 10 to 4 impasse on Question 6, how would you advise us to proceed, or can you give us more information/direction?" The judge responded to the jury: "If and when you are at an impasse and tell me that, then I will have some further instructions for you." The jury then sent out a note saying: "We are at an impasse, and can you give us further instructions." The plaintiff then orally moved to dismiss with prejudice the civil battery claim, and after argument, the judge allowed the motion over the objection of the defendant and informed the jury that "the claim of civil battery has been withdrawn from consideration" and that the jury need not answer questions five and six.
Lorillard contends that allowing the dismissal of the claim and informing the jury that they need not decide the questions pertaining to that claim was prejudicial error. We conclude that it was neither error nor prejudicial. The judge acted within her discretion under Mass. R. Civ. P. 41 (a) (2), 365 Mass. 803
7. Compensatory damages. The defendant contends that the
The judge granted Lorillard's motion for remittitur in part, finding that, "[g]iven the extent of [Marie's] pain, suffering and death," a compensatory award of $25 million for Marie's conscious pain and suffering would be "appropriate, reasonable and just," and that "the largest reasonable compensatory award for [the plaintiff's] significant loss is $10 million." "[A]n award of damages must stand unless to make it or to permit it to stand was an abuse of discretion on the part of the court below, amounting to an error of law." Mirageas v. Massachusetts Bay Transp. Auth., 391 Mass. 815, 822 (1984), quoting Bartley v. Phillips, 317 Mass. 35, 43 (1944). "It is an error of law if `the damages awarded were greatly disproportionate to the injury proven or represented a miscarriage of justice.'" Labonte v. Hutchins & Wheeler, 424 Mass. 813, 824 (1997), quoting doCanto v. Ametek, Inc., 367 Mass. 776, 787 (1975). We find no abuse of discretion; the judge's remittitur award was not disproportionate to the injuries suffered and did not represent a miscarriage of justice.
8. The judge's decision under G. L. c. 93A. On at least two separate grounds, the judge found that Lorillard committed unfair or deceptive acts or practices in trade or commerce in violation of G. L. c. 93A, § 2, and that Lorillard was liable to Marie's estate under G. L. c. 93A, § 9, because such acts or practices caused her injury. First, the judge found that Lorillard committed a breach of the implied warranty of merchantability and was negligent in the "design, marketing, and/or distribution" of its cigarettes. The unfortunate phrasing of this finding of negligence makes the judge's decision as unclear as the jury's verdict on this issue, and prevents us from being certain that the judge found Lorillard negligent in the design of its cigarettes. Further, because "this c. 93A action is limited to events after 1979, when c. 93A was amended, see Hershenow v. Enterprise Rent-A-Car Co. of Boston, Inc., 445 Mass. 790, 797-798 (2006)," the judge could not properly have found that Lorillard's negligent marketing or distribution of cigarettes to minors caused injury to Marie after 1979, because she was an adult by 1979. Because the judge's finding of negligence is so unclear, and because a finding of causation arising from negligent
Second, the judge found that Lorillard violated G. L. c. 93A because it committed a breach of a duty that it voluntarily assumed when it joined the Frank Statement to research the health hazards of smoking cigarettes and to provide accurate information to its consumers regarding that research. Because we hold that no such duty was voluntarily assumed, see part 3 supra, we conclude that the judge's finding of a violation of c. 93A cannot rest on this ground.
In addition, the judge found that the application of offensive collateral estoppel was fair and adopted certain findings of the United States District Court for the District of Columbia in the case of United States v. Philip Morris USA, Inc., 449 F.Supp.2d 1 (D.D.C. 2006), aff'd in part, rev'd in part, 566 F.3d 1095 (D.C. Cir. 2009), cert. denied sub nom. Lorillard Tobacco Co. v. United States, 130 S.Ct. 3502 (2010) (Philip Morris).
"When a State court is faced with the issue of determining the preclusive effect of a Federal court's judgment, it is the
In this case, the type of res judicata applied by the judge was issue preclusion in the form of offensive collateral estoppel. "The offensive use of collateral estoppel `occurs when a plaintiff seeks to prevent a defendant from litigating issues which the defendant has previously litigated unsuccessfully in an action against another party.'" Matter of Cohen, 435 Mass. 7, 15 (2001), quoting Bar Counsel v. Bar Overseers, 420 Mass. 6, 9 (1995). Under Federal law:
Ramallo Bros. Printing, Inc. v. El Día, Inc., 490 F.3d 86, 90 (1st Cir. 2007), citing Keystone Shipping Co. v. New England Power Co., 109 F.3d 46, 51 (1st Cir. 1997). Further, "in cases where ... the application of offensive [collateral] estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979). See Haran v. Board of Registration in Med., 398 Mass. 571, 577 (1986), quoting Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 745 (1985) ("When determining whether the offensive use of collateral estoppel has afforded a defendant due process, `[f]airness is the decisive consideration'").
We conclude that the first requirement for offensive collateral estoppel was not met in this case: the issues decided in this case are not the same as those decided in the Philip Morris case. As the judge stated, the plaintiff alleged that Lorillard violated G. L. c. 93A in three ways: "(1) it breached the implied warranty of merchantability; (2) it breached a duty, which it voluntarily assumed, to research the health hazards of smoking and
The issue litigated in Philip Morris was whether the cigarette manufacturer defendants, including Lorillard, "ha[d] violated, and continue[d] to violate, the Racketeer Influenced and Corrupt Organizations Act (`RICO'), 18 U.S.C. §§ 1961-1968, by engaging in a lengthy, unlawful conspiracy to deceive the American public about the health effects of smoking and environmental tobacco smoke, the addictiveness of nicotine, the health benefits from low tar, `light' cigarettes, and their manipulation of the design and composition of cigarettes in order to sustain nicotine addiction." Philip Morris, supra at 26-27. In short, the issue in Philip Morris was deception, not whether the defendants' cigarettes as designed were defective and unreasonably dangerous when compared to a reasonable alternative design, or whether the defendants were negligent in designing those cigarettes. Because the claim in Philip Morris was racketeering rather than product liability or negligence, "the issue sought to be precluded in the later action" is not "the same as that involved in the earlier action," Ramallo Bros. Printing, Inc. v. El Día, Inc., supra, and the application of offensive collateral estoppel is not appropriate.
Considering these errors cumulatively, we conclude that the prudent course is to vacate the judgment on the c. 93A count and remand the case to the judge. We simply are not confident
On remand, the judge shall determine whether, based solely on the relevant evidence presented at trial, Lorillard violated G. L. c. 93A, § 2, and, if liability is found under § 9,
Conclusion. We affirm the jury's finding of liability on the claim of wrongful death caused by breach of the implied warranty of merchantability, and affirm the award of compensatory damages, as reduced by the remittitur. We reverse the finding of liability on the claim of wrongful death based on the theory of voluntary undertaking of a duty, and order judgment for the defendant on this claim. We vacate the jury's findings as to the claim of wrongful death on the theory of negligence and their findings that Lorillard was grossly negligent and acted in a manner that was malicious, wilful, wanton, or reckless, and therefore vacate the jury's award of punitive damages. We remand the case for a new trial on the issue whether Lorillard is liable for any conduct that would give rise to punitive damages under G. L. c. 229, § 9, and if so, the amount of punitive damages that should be awarded. We vacate the judge's finding of liability on plaintiff's claim that Lorillard violated G. L. c. 93A and remand the case to the judge for further action consistent with this opinion.
So ordered.
Reviewing this instruction in its entirety, it is clear that the judge was cognizant of the risk that her words could have a coercive effect on the jury, and she took precautions to address such a risk. Therefore, we conclude that the judge's instruction was not coercive and did not result in any prejudice to Lorillard.
The judge also adopted certain findings of the Florida Supreme Court in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006), but the judge later withdrew these findings from her decision regarding the G. L. c. 93A claim.
Further, because the judge has already determined in ordering remittitur that the compensatory award of $25 million "for all of the harm Marie suffered... is appropriate, reasonable and just," we recognize that the judge is unlikely to award compensatory damages under G. L. c. 93A, § 9, in an amount greater than the amount awarded to Marie's estate by the jury as reduced by the order of remittitur. Unless the judge were to award a greater amount, the award of compensatory damages under G. L. c. 93A cannot affect the total amount owed to Marie's estate for compensatory damages, because damages may not be duplicative. See Canal Elec. Co. v. Westinghouse Elec. Corp., 406 Mass. 369, 379 n.10 (1990) ("plaintiff suing both for breach of warranty and under c. 93A would be entitled, if successful, to actual damages plus attorneys' fees, but not to double recovery plus fees").
