Circuit affirms huge tobacco/cancer verdict

Cigarettes are still legal in America. That does not mean the families of cigarette victims cannot sue the cigarette companies. In this case, the family won nearly $5 million to redress the cancer death of the plaintiff's husband. The Court of Appeals affirms the verdict.

The case is Mulholland v. Philip Morris USA, Inc., a summary order issued on January 7. Books and movies have covered tobacco cases like this one. The plaintiff's legal theory was "failure to warn," that is, Phillip Morris did not warn cigarette smokers in the early 1960s that smoking could cause cancer. Phillip Morris argues on appeal that the trial court should have instructed the jury on but-for causation on the failure to warn claim. The company "contends that such an instruction was required in this case because one of its central theories was that Mr. Mulholland would have smoked and contracted lung cancer regardless of any warnings [Philip Morris] had given him." The Court of Appeals (Pooler, Livingston and Droney) rejects this argument. The district court used the tried-and-true Pattern Jury Instructions that state judges and law professors have drafted and maintained over the years. If they are good enough for the state court experts, they are good enough for the U.S. Court of Appeals on a state law issue.

In any event, there is no reason to think that the but-for instruction that Philip Morris wants would have made a difference at trial. The Second Circuit says,

[I]n finding that PM USA’s failure to warn was a substantial factor in bring about Mr. Mulholland’s injury (as was required by the district court’s jury instruction), the jury would necessarily have had to reject the theory that Mr. Mulholland would have smoked even if he received adequate warning. For the failure to warn to have had any effect, it cannot be that Mr. Mulholland would have smoked regardless of any warnings. PM USA’s argument that a but-for instruction would have altered the verdict does not withstand basic legal scrutiny.

Philip Morris also argued that the trial court should not have allowed the jury to hear evidence that the decedent "wouldn't have smoked" cigarettes had he known smoking could cause cancer. This deposition testimony was neither speculative nor self-serving. The Court of Appeals does not like to vacate jury verdicts on the basis of evidentiary rulings. Even if the district court blew it, it would have made an difference. Interesting reasoning on this point:

PM USA introduced a great deal of evidence at trial to support its theory that David Mulholland would have smoked even if he had been adequately warned, including his testimony that he “never really looked” at the cigarette warnings once they did start appearing on cigarette packages. But Mulholland introduced a significant amount of other evidence that David Mulholland would have heeded an adequate waning if one were given. For example, she introduced expert testimony showing that many fewer teens take up smoking once exposed to health warnings, she emphasized that David Mulholland made several attempts to quit smoking once he learned of the hazards of smoking. She also introduced evidence that he wore protective safety equipment when doing career-related painting and welding because he knew the health dangers of paint fumes, indicating that he did avoid risks when he knew about them. On balance, we conclude that any error in admitting the testimony was harmless.