Products Liability Law Daily Long-time smoker loses appeal against tobacco companies
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Friday, July 31, 2020

Long-time smoker loses appeal against tobacco companies

By Leah S. Poniatowski, J.D.

The smoker failed to show causation on design defect and warnings issues, especially after testifying that he ignored warnings on the packages and from doctors and family members.

A federal district court did not err when it dismissed a long-time cigarette smoker’s lawsuit against several tobacco companies in light of the smoker’s absence of sufficient evidence to support his claims, the U.S. Court of Appeals for the Third Circuit ruled in an unpublished opinion, affirming the lower court (McCracken v. R.J. Reynolds Tobacco, July 30, 2020, per curium).

A man who had smoked cigarettes for more than 50 years filed suit pro se against R.J. Reynolds Tobacco Co. (RJR), ITG Brands LLC, and Republic Tobacco, L.P., alleging that his smoking had caused him to develop emphysema and chronic obstructive pulmonary disease (COPD). The smoker asserted various claims against the three companies for failure to warn, design defect, intentional/negligent infliction of emotional distress, and loss of consortium. Both parties moved for summary judgment following the discovery process, with the smoker arguing that the cigarette makers should be collaterally estopped from defending themselves and that the companies’ answers to interrogatories established their liability as a matter of law.

Trial court. The court granted the manufacturers’ summary judgment motion, barring the smoker’s claims due to a lack of causation evidence [see Products Liability Law Daily’s February 15, 2019 analysis]. The smoker moved for reconsideration of the ruling, maintaining that the court erred in its analysis of his claims. According to the smoker, the trial court erred in its description of his failure to warn claim in holding that he had sought summary judgment on that claim against Republic for the years 1966 through 1969 when actually the claim had been leveled against ITG. According to the smoker, the court overstated his awareness of the dangers of smoking when it found that he had been aware of the risks of smoking throughout his life and that additional warnings would not have deterred him from using tobacco.

Reconsideration motion. The federal district court granted the smoker’s motion to reconsider its earlier decision favoring the three cigarette manufacturers, finding that it had mis-identified the manufacturer in one claim and had miscast a design defect claim as a failure to warn claim [see Products Liability Law Daily’s March 25, 2019 analysis]. However, those errors did not affect the court’s prior findings that the smoker and his wife had adduced no more than a scintilla of evidence that the alleged design defect or failure to warn had caused his injuries, the court concluded, affirming its prior summary judgment ruling. The smoker filed the present appeal.

No claims succeed. The appellate court agreed with the lower courts that support for the smoker’s claims was insufficient. First, he failed to demonstrate that he had personal contact with three of the individual defendants named in his suit to afford the court personal jurisdiction over them. Second, the smoker did not proffer any legal basis in support of his claim that the tobacco companies unfairly targeted minors.

His failure to warn claims were similarly unsuccessful. The claims against RJ Rand ITG, which began after 1969, were preempted by the Public Health Cigarette Smoking Act of 1969. Moreover, he testified that he had seen the warning labels on the cigarette packages but disregarded them, and he had been warned by family members and his doctors but did not change his behavior. Thus, there was no evidence that any additional warning would have deterred him from smoking. With respect to the design defect claims, the smoker never provided evidence outside his medical diagnoses that there was a defect in the products that caused his injuries, especially as Pennsylvania does not recognize causes of action for inherently dangerous, legal products that are not defectively manufactured.

Further, the smoker failed to provide evidence to support his claims for fraudulent misrepresentation, fraudulent concealment, civil conspiracy, or intentional infliction of emotional distress. Consequently, the lower court’s judgment in favor of the manufacturers was affirmed.

The case is No. 19-1461.

Attorneys: Ted Aaron McCracken, pro se. Goretti S. McCracken, pro se. Howard M. Klein (Conrad O'Brien PC) for RJ Reynolds Tobacco, Debra Crew, ITG Brands LLC, David H. Taylor, Republic Tobacco Co. and Donald Levin.

Companies: RJ Reynolds Tobacco; Republic Tobacco Co.; ITG Brands LLC

MainStory: TopStory DesignManufacturingNews WarningsNews TobaccoProductsNews DelawareNews NewJerseyNews PennsylvaniaNews VirginIslandsNews

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