Massachusetts Appeals Court Case: 2020-P-0077 Filed: 8/3/2020 3:42 PM
No. 2020-P-0077
COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
PAMELA LARAMIE, individually as personal representative of the Estate of Fred R. Laramie Plaintiff-Appellee,
v.
PHILIP MORRIS USA INC., Defendant-Appellant.
Appeal from the Commonwealth of Massachusetts Superior Court Department of the Trial Court, Suffolk County Case No. 1784-CV-02240-BLS1
AMENDED BRIEF FOR APPELLANT
Kenneth J. Parsigian (BBO # 550770) Scott A. Chesin (BBO # 653907) U. Gwyn Williams (BBO # 565181) MAYER BROWN LLP William J. Trach (BBO #661401) 1221 Avenue of the Americas Allison L. Turner (BBO # 682906) New York, N.Y. 10020 LATHAM & WATKINS LLP (212) 506-2274 John Hancock Tower, 27th Floor [email protected] 200 Clarendon Street Boston, Mass. 02116 Laura K. Whitmore (BBO # 569550) (617) 948-6000 SHOOK, HARDY & BACON LLP [email protected] 100 North Tampa Street, Suite 2900 [email protected] Tampa, Fla. 33602 [email protected] (813) 202-7100 [email protected] [email protected]
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Supreme Judicial Court Rule 1.21, Defendant Philip Morris
USA Inc., by its undersigned counsel, hereby discloses the following:
1. The parent company of Philip Morris USA Inc. is Altria Group, Inc.
2. Altria Group, Inc. is the only publicly held corporation that owns
10% or more of Philip Morris USA Inc.’s stock.
3. Philip Morris USA Inc. has no publicly traded subsidiaries or affiliates (except as described in paragraph 2, supra).
4. Philip Morris USA Inc. will promptly supplement this disclosure upon any change to the information above.
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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ...... 2 TABLE OF CONTENTS ...... 3 TABLE OF AUTHORITIES ...... 6 STATEMENT OF CASE ...... 11 STATEMENT OF ISSUES ...... 12 STATEMENT OF FACTS ...... 13 A. The Decedent ...... 13 B. Plaintiff’s Complaint ...... 13 C. Pretrial Proceedings Relating To Punitive Damages ...... 14 D. Trial ...... 15 1. Evidentiary Disputes ...... 15 a. The Warning Labels ...... 16 b. Consumer Expectations ...... 19 2. Closing Arguments ...... 20 E. Verdict And Post-Trial Motions ...... 22 SUMMARY OF ARGUMENT ...... 22 ARGUMENT ...... 24 I. EVIDENTIARY AND INSTRUCTIONAL ERRORS REQUIRE A NEW TRIAL...... 24 A. It Was Error To Admit Evidence Suggesting The Warnings Labels Were Inadequate...... 25 1. The Evidence Was Irrelevant...... 26 2. The FTC Reports Were Hearsay...... 27 a. The Reports Contained Hearsay Within Hearsay ...... 28 b. The Ancient Documents Exception Does not Render Hearsay Within Hearsay Admissible ...... 29 B. It Was Error To Admit Evidence Of PM USA’s Private Knowledge And Motivations...... 33
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1. The Evidence Was Not Relevant To Consumer Expectations...... 34 2. The Evidence Was Not Relevant to Causation...... 35 C. It Was Error To Instruct The Jury About “Misrepresentations.” ...... 37 D. The Errors Were Not Harmless...... 39 II. COUNSEL’S MISCONDUCT DURING CLOSING ARGUMENT WARRANTS A NEW TRIAL ...... 40 III. THE TRIAL COURT ERRED BY PERMITTING PLAINTIFF TO PURSUE PUNITIVE DAMAGES...... 43 A. Massachusetts Settled All Claims for Punitive Damages Against PM USA On Behalf Of Its Citizens...... 44 B. Res Judicata Bars Private Citizens From Pursuing Punitive Damages Again, In Subsequent Litigation...... 46 1. Plaintiff Is In Privity With The Attorney General...... 46 a. Plaintiff’s Interest in Punitive Damages Is The Same Public Interest Pursued By The Attorney General ...... 47 b. The Attorney General Adequately Represented Plaintiff’s Interest In The Prior Suit ...... 48 c. Binding Plaintiff To The Judgment Is Consistent With Due Process And Common-Law Fairness ...... 49 2. Both Lawsuits Sought To Punish The Same Conduct...... 50 a. Both Actions Alleged The Same Wrongful Conduct ...... 51 b. Both Complaints Sought To Punish PM USA Through Punitive Damages ...... 52 3. The Consent Decree Was A Final Judgment On The Merits...... 53 C. Punitive Damages Are Barred By The Terms Of The MSA...... 54 D. Persuasive Authority Favors Preclusion...... 54 CONCLUSION ...... 57 ADDENDUM ...... 59 CERTIFICATE OF COMPLIANCE ...... 90
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CERTIFICATE OF SERVICE ...... 91
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TABLE OF AUTHORITIES Cases Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565 (2013) ...... 54
Aleo v. SLB Toys USA, Inc., 466 Mass. 398 (2013) ...... 47
Altria Grp., Inc. v. Good, 555 U.S. 70 (2008) ...... 23, 26
Ammons v. Dade City, 594 F. Supp. 1274 (M.D. Fla. 1984) ...... 32
Anderson v. Nat’l Union Fire Ins. Co. of Pittsburgh, 476 Mass. 377 (2017) ...... 53
Aspinall v. Philip Morris Cos., 2006 WL 4968277 (Mass. Super. Ct. Aug. 10, 2006) ...... 38
Boyd v. Jamaica Plain Coop. Bank, 7 Mass. App. Ct. 153 (1979) ...... 50
Brown & Williamson Tobacco Corp. v. Gault, 627 S.E.2d 549 (Ga. 2006) ...... 48
Brown v. Brown & Williamson Tobacco Corp., 479 F.3d 383 (5th Cir. 2007) ...... 38
Bullock v. Philip Morris USA, Inc., 198 Cal. App. 4th 543 (2d Dist. 2011) ...... 56
Carta v. B.R.E. Corp., 62 Mass. App. Ct. 1104 (2004) ...... 40
Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) ...... 16, 23, 26, 38
Clegg v. Butler, 424 Mass. 413 (1997) ...... 53
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Columbia First Bank, FSB v. United States, 58 Fed. Cl. 333 (Fed. Cl. 2003) ...... 32
Commonwealth v. DePina, 476 Mass. 614 (2017) ...... 23, 30
Commonwealth v. Middleton, 80 Mass. App. Ct. 1110 (2011) ...... 25
Commonwealth v. Santiago, 437 Mass. 620 (2002) ...... 29
Commonwealth v. Vick, 454 Mass. 418 (2009) ...... 40
DeGiacomo v. City of Quincy, 476 Mass. 38 (2016) ...... 46
Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006) ...... 56, 58
Evans v. Lorillard Tobacco Co., 465 Mass. 411 (2013) ...... passim
Fabiano v. Philip Morris Inc., 54 A.D.3d 146 (N.Y. App. Div. 2008) ...... 24, 47, 55
Fitzpatrick v. Wendy’s Old Fashioned Hamburgers, 96 Mass. App. Ct. 410 (2019) ...... 23, 40, 42
Fyffe v. Mass. Bay Transp. Auth., 86 Mass. App. Ct. 457 (2014) ...... 23, 40, 42, 43
Gath v. M/A-Com, Inc., 440 Mass. 482 (2003) ...... 25
Gonzales v. North Twp. of Lake County, 800 F. Supp. 676 (N.D. Ind. 1992) ...... 32
Grant v. Lewis/Boyle, Inc., 408 Mass. 269 (1990) ...... 39
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Grill v. Philip Morris USA, Inc., 653 F. Supp. 2d 481 (S.D.N.Y. 2009) ...... 55
Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290 (2016) ...... 48
Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91 (2009) ...... 47
Heacock v. Heacock, 402 Mass. 21 (1988) ...... 50
Hicks v. Charles Pfizer & Co. Inc., 466 F. Supp. 2d 799 (E.D. Tex. 2005) ...... 32
Kelton Corp. v. Cty. of Worcester, 426 Mass. 355 (1997) ...... 53
Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039 (7th Cir. 1999) ...... 39
Kobrin v. Bd. of Registration in Med., 444 Mass. 837 (2005) ...... 24, 46
Korn v. Paul Revere Life Ins. Co., 83 Mass. App. Ct. 432 (2013) ...... 50
Licata v. GGNSC Malden Dexter LLC, 466 Mass. 793 (2014) ...... 54
Lighthouse Masonry, Inc. v Div. of Admin. Law Appeals, 466 Mass. 692 (2013) ...... 23, 35
Lopes v. Commonwealth, 442 Mass. 170 (2004) ...... 45
Massingill v. EMC Corp., 449 Mass. 532 (2007) ...... 25
McKinnon v. Kwong Wah Rest., 83 F.3d 498 (1st Cir. 1996) ...... 48, 49
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Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ...... 26
Mitchell v. Liberty Chevrolet Inc., 2019 Mass. App. Div. 61 (Dist. Ct. 2019) ...... 53
Mulholland v. Philip Morris USA, Inc., 598 F. App’x 21 (2d Cir. 2015), (Mar. 25, 2015) ...... 55
Murray v. Sevier, 50 F. Supp. 2d 1257 (M.D. Ala. 1999) ...... 32
O’Brien v. City of Syracuse, 54 N.Y.2d 353 (1981) ...... 55
Philip Morris USA v. Williams, 549 U.S. 346 (2007) ...... 51, 50
Resto v. City of Lawrence, 89 Mass. App. Ct. 1121 (2016) ...... 46
Shea v. American Tobacco Co., 73 A.D.3d 730 (2d Dep’t 2010) ...... 55
Silva v. City of New Bedford, 677 F. Supp. 2d 367 (D. Mass. 2009) ...... 53
Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183 (11th Cir. 2004) ...... 38
Sparrow v. Demonico, 461 Mass. 322 (2012) ...... 54
St. Louis v. Baystate Med. Ctr., Inc., 30 Mass. App. Ct. 393 (1991) ...... 50
Stiles v. Demoulas Super Markets, Inc., 94 Mass. App. Ct. 1116. (2019) ...... 41, 42
United States v. Hajda, 135 F.3d 439 (7th Cir.1998) ...... 32
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United States v. Little, 59 F. Supp. 2d 177 (D. Mass. 1999) ...... 35
United States v. Metro. Dist. Comm’n, No. 85 cv 0489, 1985 WL 9071 (D. Mass. Sept. 5, 1985) ...... 35
Wahlstrom v. JPA IV Mgmt. Co., 95 Mass. App. Ct. 445 (2019) ...... 23, 40
Wingate v. Emery Air Freight Corp., 385 Mass. 402 (1982) ...... 31
Statutes, Rules and Regulations 15 U.S.C. § 1331, et seq...... 16, 26
15 U.S.C. § 1334(b) ...... 16, 26
Fed. R. Evid. 805 ...... 23
Mass. G. Evid. § 803(16) ...... 28
Mass. G. Evid. § 805 ...... 30
Mass. Consumer Protection Act, G.L. c. 93A ...... 45, 53
Other Authorities Federal Trade Commission Report to Congress, June 30, 1967, 90 CONG.REC. 20,045 (1967) ...... 28
Federal Trade Commission Staff Report on the Cigarette Advertising Investigation, May 1981, H.R. DOC.NO. 97-107 (1982) ...... 29
Restatement (Third) of Torts, § 2 ...... 34
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STATEMENT OF CASE The jury in this tobacco wrongful death case returned a verdict totaling $21 million in compensatory and punitive damages. This Court should vacate the judgment, dismiss the punitive damages claim, and remand for retrial of the remaining causes of action.
1. A new trial is warranted because of substantial evidentiary and instructional errors. The plaintiff’s claims were limited to design defect and negligent distribution; she expressly waived any claims asserting fraud. Despite this, the trial court invited the jury to hold the defendant liable for “mislead[ing] consumers.” (a) Despite holding that the Congressionally mandated warning labels that have appeared on cigarette packages since the 1960s were legally adequate to warn the public about the risks of smoking, the court permitted plaintiff to introduce evidence suggesting that the defendant’s “misleading” advertising rendered the warnings ineffective, then instructed the jury that the law “does not permit” manufacturers to make misleading statements. (b) The court also permitted plaintiff to introduce hours of expert testimony and dozens of exhibits suggesting that the company’s public statements about the hazards of smoking were purposeful lies, made pursuant to a conspiracy with other companies to conceal the hazards of cigarettes. It was error to instruct the jury to consider a non-existent fraud claim and to admit prejudicial evidence supporting that theory.
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2. The trial court also erred by failing to grant a mistrial following the improper closing argument given by plaintiff’s counsel, in which he disparaged defense counsel, referred repeatedly to facts not in evidence, and made various inflammatory remarks designed to evoke improper passion and prejudice in jurors.
3. Finally, it was error to permit plaintiff to pursue a claim for punitive damages because the Massachusetts Attorney General already brought such a claim and resolved it favorably on behalf of all Massachusetts citizens. Plaintiff’s claim was therefore barred by res judicata. Courts in New York and Georgia— two other states that sued the defendant and resolved their claims via the same settlement agreement as Massachusetts—have held that private citizens may not pursue punitive damages in cases like this. This is the first case in which a
Massachusetts appellate court is being asked to decide the issue.
STATEMENT OF ISSUES 1. Whether, in a case limited to claims of design defect and negligent distribution, the trial court erred by (a) admitting evidence suggesting the
Congressional warning labels are ineffective, (b) admitting evidence suggesting that the defendant committed a fraud, and (c) instructing the jury that it is unlawful for the defendant to “mislead consumers.”
2. Whether the defendant is entitled to a new trial based on plaintiff’s counsel’s misconduct during closing arguments.
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3. Whether plaintiff’s claim for punitive damages was barred by res judicata because it was adjudicated and resolved in a prior action brought by the
Massachusetts Attorney General.
STATEMENT OF FACTS
A. The Decedent
Fredrick Laramie was born on March 3, 1957 and grew up in Lynn,
Massachusetts. RAIII/199.1 In 1990, he married the plaintiff, Pamela Laramie.
RAII/331. Mr. Laramie was a smoker; he started smoking Marlboros
(manufactured by the defendant, Philip Morris USA Inc. (“PM USA”)) at an early age and continued smoking until shortly before his death. RAII/200, 320. Every pack of cigarettes he smoked featured a Congressionally mandated warning label, informing the public about the risks of smoking. Although Mr. Laramie attempted to quit smoking several times, he did not quit successfully until he was diagnosed with lung cancer in 2016. RAII/319-20. He died several months later. RAII/337.
B. Plaintiff’s Complaint
Mrs. Laramie, as personal representative of Mr. Laramie’s estate, sued PM
USA and two other defendants in 2017. The Complaint sought compensatory and punitive damages based on claims of breach of warranty, negligence, and civil
1 Citations to the Record Appendix are in the form RA[Vol.]/[Page]. Citations to the Addendum are in the form A/[Page].
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conspiracy. RAIII/255-261. Under her warranty and negligence claims, she alleged that the cigarettes Mr. Laramie smoked were defectively designed.
RAIII/255-258. She further alleged that PM USA: was negligent because it distributed free cigarettes to Mr. Laramie when he was a minor (RAIII/258), and conspired with other industry actors to conceal the hazards of smoking from Mr.
Laramie (RAIII/249). She later voluntarily dismissed all her claims against the other two defendants, and her conspiracy and negligent design claims against PM
USA. As of the time of trial, therefore, the only claims were against PM USA for negligent distribution and breach of warranty. RAIV/290; A/67.
C. Pretrial Proceedings Relating To Punitive Damages
PM USA moved for summary judgment on plaintiff’s punitive damages claim, arguing that the claim was barred by res judicata because the Massachusetts
Attorney General, acting on behalf of all Massachusetts citizens, had already brought such a claim in a 1995 lawsuit that sought to punish PM USA for the same conduct that allegedly harmed Mr. Laramie. The earlier suit was resolved by a
1998 consent decree and final judgment that required PM USA to pay hundreds of millions of dollars to Massachusetts every year, in perpetuity.
Plaintiff opposed the motion. Although she conceded that that the Attorney
General’s lawsuit had sought to punish the same conduct that Mrs. Laramie sought to punish in the current suit, she nonetheless contended that the elements of res
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judicata had not been satisfied by resolution of the prior lawsuit. The trial court agreed with the plaintiff and denied PM USA’s motion, holding that “actions undertaken by the Massachusetts attorney general could [not] deprive a private plaintiff, authorized by [statute] to bring a wrongful death action, of the right to recover punitive damages if that plaintiff proves the type of conduct that requires the entry of such an award.” RAIV/294; A/70.
D. Trial
The case was tried in 2019. Relevant to this appeal are two categories of evidence that were admitted over objection as supposedly relevant to plaintiff’s warranty claim, and certain arguments made by plaintiff’s counsel in closing.
1. Evidentiary Disputes
To prevail on her warranty claim, plaintiff had to prove that the cigarettes
Mr. Laramie smoked were defectively designed—meaning they were unreasonably dangerous and that PM USA could have adopted a “reasonable alternative design” that would have reduced or eliminated the harms created by the defect. Evans v.
Lorillard Tobacco Co., 465 Mass. 411, 424 (2013). To evaluate the claim, the jury was instructed to weigh several factors, including (1) “the instructions and warnings accompanying the product”; and (2) “the nature and strength of consumer expectations regarding the product, including expectations arising from product
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portrayal and marketing.” Id. at 425. The admissibility of certain evidence offered in support these factors was a key disputed issue at trial.
a. The Warning Labels Since 1966, federal law has mandated that all cigarette packages bear a warning label. 15 U.S.C. § 1331 et seq. And since 1969, federal law has expressly preempted state tort claims imposing liability on cigarette manufacturers for not including different or additional warnings in their packaging and advertising. 15
U.S.C. § 1334(b); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 524 (1992). It was undisputed that every pack of cigarettes Mr. Laramie smoked contained a warning label. Nevertheless, plaintiff sought to introduce evidence suggesting that those labels were ineffective.
Specifically, plaintiff sought to establish that the tobacco industry’s advertising undermined the efficacy of the warnings. RAI/347. To do so, she introduced testimony from an expert witness, Dr. K. Michael Cummings. Over objection, Dr. Cummings opined that the warnings have “very little effect” on smokers, most of whom “don’t notice” them. RAI/330. To substantiate this opinion, Dr. Cummings read to the jury extensive excerpts from two reports created by the U.S. Federal Trade Commission, which summarized the results of various surveys concluding that consumers do not notice the warnings. For
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example, Dr. Cummings read verbatim the following passage from a 1981 FTC report:
[L]ess than 3 percent of adults exposed to cigarette ads ever even read the warning. While cigarette ads present their message in a variety of frequently-changing, attention-getting formats using numerous image- provoking […] personable themes, the current abstract warning in the same rectangular shape has appeared unchanged in every cigarette ad for so long that few people ever notice or pay attention to it.
RAII/59. Dr. Cummings also read similar passages from a report published in
1967. His recitation of the verbatim conclusions of that report takes up six full transcript pages. RAI/330-32.
PM USA objected to Dr. Cummings’s opinions and to his being permitted to read excerpts from the FTC reports into the record, on two grounds. First, because federal law preempts any claim that the labels are inadequate, evidence suggesting their inadequacy was irrelevant and prejudicial. RAI/345. Second, the reports contained multiple layers of inadmissible hearsay. RAI/325.
The trial court overruled PM USA’s objections. As to the hearsay issue, the court concluded that because the reports were more than thirty years old, they fell within the “ancient document” exception to the rule against hearsay. Dr.
Cummings was therefore allowed to display portions of the documents to the jury and to read directly from them as part of his sworn testimony. RAI/328. 2
2 Despite the court’s ruling that the reports were admissible, plaintiff did not move them into evidence, pursuant to a stipulation with the defendant. But the
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Regarding the relevance objection, although the court did not exclude the testimony, it did instruct the jury that “[t]he United States Congress has determined that the warning labels appearing on packages of cigarettes since July 1, 1969, are sufficient to [. . .] inform the public about the health hazards of smoking as a matter of law. . . . Therefore, you must take as true in this case that the warnings provided by Philip Morris from July 1, 1969[] on were adequate to warn Mr.
Laramie and others of the dangers associated with smoking.” RA1/348. Later in
Dr. Cummings’s testimony, the court noted its concern that the evidence “would seem to undercut” the court’s instruction (RAII/59), and therefore repeated the instruction (RAII/61). In its final instructions, the court advised the jury a third time that the warning labels were adequate. RAIII/168. This time, however, the court added a caveat, over objection: “The law, however, does not permit a cigarette manufacturer, through its statements or actions, to mislead consumers or make misrepresentations about the risks or hazards associated with smoking.”
RAIII/168.
court allowed them to be read into the record and published to the jury. RAI/329 (“[T]he document will not come in evidence, but . . . because I think the document is admissible, I will permit portions of the document to be shown to the jury because I think it would be admissible, but it looks like the parties agreed, for whatever reason, that they would, in fact, not come in evidence.”).
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b. Consumer Expectations Both parties introduced evidence relevant to the “consumer expectations” factor. Plaintiff sought to prove that reasonable consumers did not believe smoking was harmful, in part because advertisements and other public statements from cigarette manufacturers supposedly suggested it was safe. RAI/303-05, 311-
18, 352, 359, 368-70. PM USA sought to prove the opposite: that the dangers of smoking have been widely publicized and known for decades. RAII/86-95. Both parties, therefore, introduced public statements about the dangers of smoking, including advertisements and other publications. Some of that evidence was admitted over objection, but those rulings are not being challenged in this appeal by either party.
In addition to public statements and advertisements, however, plaintiff also introduced another category of evidence supposedly relevant to consumer expectations: testimony and documents describing PM USA’s private knowledge of the risks of smoking, and its motivations for allegedly downplaying those risks in public. Specifically, Dr. Cummings testified at length—over the course of nearly 200 transcript pages (RAI/334-83)—about what he termed the tobacco industry’s “mass deception” of the public, and about “why Philip Morris and the other tobacco companies entered into an agreement to deceive the American public.” RAI/334, 338-39. And she introduced, over objection, dozens of internal
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documents from PM USA and various trade organizations, reflecting their authors’ knowledge about the hazards of smoking and their alleged motivations for denying those hazards. None of these documents (all of which are reproduced in full in the appendix to this brief, at RAIV/294-RAV/92) were shared with the public until produced in litigation decades after their creation. PM USA objected to this evidence, arguing that consumers’ expectations about the safety of Marlboros could not have been affected by internal industry communications. The court overruled the objections, holding that the evidence was relevant to consumer expectations, and to the “cause” of Mr. Laramie’s lung cancer. RAII/35-37;
RAIII/108, 194-97.
2. Closing Arguments
During plaintiff’s counsel’s closing argument, PM USA’s counsel was forced to object repeatedly to numerous highly inflammatory arguments, many of which were not supported by record evidence. Specifically:
Inflammatory comments: When discussing the risks of smoking cigarettes, counsel accused PM USA of deliberately creating “a whole new different kind of cancer[]”—adenocarcinoma—because “[r]egular lung cancer wasn’t good enough.” RAIII/150. Later, when purportedly attempting to “clarify” that the jury could impose punitive damages to punish PM USA for only the harm it caused
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Fred Laramie, counsel argued: “you can’t punish them for all the other people they killed.” RAIII/154.
Attacks on PM USA’s counsel: Plaintiff’s counsel also impugned PM
USA’s counsel and urged jurors to disregard his arguments. Referring to counsel’s closing argument as a “bunch of . . . muck on the wall,” plaintiff’s counsel told the jury that “what you need to do is you need to wipe away the muck.” RAIII/142.
Plaintiff’s counsel referred to PM USA’s defense as “muck on the wall” on six separate occasions. RAIII/142, 144-45, 148-49. In one instance, counsel told the jury that defense counsel “want[s] to confuse you.” RAIII/144. On two other occasions, he falsely accused defense counsel of “put[ting] words in the mouth[s]” of plaintiff’s witnesses. RAIII/147, 149.
Misrepresentation of the Record: Plaintiff’s counsel also made arguments based on evidence that was not in the record and mischaracterized other evidence that was. Thus, he told the jury that the Laramies “didn’t have a lot of money throughout their life” and that they lived “paycheck to paycheck” (RAIII/152), but no evidence supported either contention. On the other hand, there was trial testimony that Fred Laramie’s mother and friends smoked cigarettes. RAII/374 (“I know his mother smoked for a while.”); RAII/207 (Mr. Laramie’s childhood friend testifying that he “thought” Fred’s mother smoked). Nevertheless, counsel said that such testimony was “not evidence in the case.” RAIII/144. Similarly, counsel
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stated that plaintiff’s addiction expert had testified “that if [Mr. Laramie] had smoked [low-nicotine] cigarettes, he wouldn’t have become addicted and we wouldn’t be here today.” RAIII/144. In fact, the witness said just the opposite, testifying that the addictive nature of cigarettes does not vary based on “how much nicotine cigarettes have.” RAII/253.
The trial court overruled every objection to the above-mentioned commentary.
E. Verdict And Post-Trial Motions
The jury returned a verdict for PM USA on the negligence claim, and for plaintiff on the warranty and punitive damages claims, awarding $11 million in compensatory damages and $10 million in punitive damages. RAV/125-28.
Following entry of judgment, PM USA moved for judgment notwithstanding the verdict or a new trial. The court denied the motion. RAV/123-24, A/65-66.
SUMMARY OF ARGUMENT 1. It was error for the court to admit evidence suggesting that the
Congressional warning labels are ineffective, as well as evidence suggesting that
PM USA’s public statements about the health hazards of smoking were knowingly false—and then to instruct the jury that “the law does not permit” a cigarette manufacturer “to mislead consumers or make misrepresentations.” (a) The warning-label evidence was irrelevant because the warnings were adequate as a
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matter of law to warn the public and Mr. Laramie about the risks of smoking.
Altria Grp., Inc. v. Good, 555 U.S. 70, 79 (2008). It was also inadmissible hearsay, because the FTC reports that formed the basis of the opinion contained multiple levels of hearsay that were not covered by any relevant exception.
Commonwealth v. DePina, 476 Mass. 614, 623 (2017). (b) The evidence regarding
PM USA’s private knowledge and motivations was irrelevant because the claims did not sound in fraud; plaintiff alleged design defect and negligent distribution.
Whether the manufacturer was truthful in its statements about its products is not relevant to either cause of action. Lighthouse Masonry, Inc. v Div. of Admin. Law
Appeals, 466 Mass. 692, 699 (2013); Evans, 465 Mass. at 425. (c) The jury instruction was erroneous both because it invited the jury to impose liability based on a non-existent fraud claim and because it negated the effect of the court’s otherwise correct instruction regarding the package warnings. Cipollone, 505 U.S. at 504 (1992).
2. The trial court also erred by failing to grant a mistrial following plaintiff’s closing argument, in which counsel made multiple inflammatory arguments designed to prejudice the jury. Wahlstrom v. JPA IV Mgmt. Co., 95
Mass. App. Ct. 445, 449-50 (2019); Fitzpatrick v. Wendy’s Old Fashioned
Hamburgers, 96 Mass. App. Ct. 410, 430 (2019); Fyffe v. Mass. Bay Transp. Auth.,
86 Mass. App. Ct. 457, 462-63 (2014).
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3. Plaintiff’s punitive damages claim was barred by res judicata and should have been dismissed. The Massachusetts Attorney General, acting on behalf of all
Massachusetts citizens, sued PM USA for the exact conduct alleged to have harmed Mr. Laramie, and he settled the case pursuant to a consent decree that entitled the state to billions of dollars. The decree expressly provides that private citizens seeking to vindicate the interests of the “general public” are “absolutely and unconditionally” barred from bringing claims for “civil penalties and punitive damages” for conduct “in any way related . . . to” “exposure to tobacco products.”
Mrs. Laramie’s statutory interest in pursuing punitive damages is the same public interest that was vindicated by the attorney general’s suit—punishing and deterring
PM USA. She is therefore precluded from bringing a subsequent suit seeking the same relief to punish the same conduct. Kobrin v. Bd. of Registration in Med., 444
Mass. 837, 843 (2005); Fabiano v. Philip Morris Inc., 54 A.D.3d 146, 148 (N.Y.
App. Div. 2008).
ARGUMENT
I. EVIDENTIARY AND INSTRUCTIONAL ERRORS REQUIRE A NEW TRIAL.
The trial court made two broad evidentiary errors and one related instructional error, each of which independently warrants a new trial: (1) it admitted evidence—hearsay evidence from Government reports and accompanying testimony—suggesting that the federal cigarette warning labels are ineffective; (2)
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it admitted evidence regarding PM USA’s private, internal knowledge of the risks of smoking—including evidence suggesting the defendant had committed fraud— that was both irrelevant and unfairly prejudicial; and (3) it instructed the jury that
“the law does not permit” a cigarette manufacturer to “mislead consumers,” suggesting that both categories of improperly-admitted evidence were relevant to a non-existent fraud claim. Each error on its own, and certainly all in combination, warrants a new trial.
This court reviews a trial court’s ruling on a motion for a new trial for abuse of discretion. Gath v. M/A-Com, Inc., 440 Mass. 482, 492 (2003). The standard of review for improperly admitted hearsay is prejudicial error. Commonwealth v.
Middleton, 80 Mass. App. Ct. 1110 (2011). Jury instructions are reviewed pursuant to a “two-part test . . . : whether the instructions were legally erroneous, and (if so) whether that error was prejudicial.” Massingill v. EMC Corp., 449
Mass. 532, 540 (2007).
A. It Was Error To Admit Evidence Suggesting The Warnings Labels Were Inadequate.
The court allowed plaintiff’s expert, Dr. Cummings, to read to the jury extensive excerpts from government reports suggesting that the federal cigarette warning labels are rendered ineffective by tobacco advertising, and to opine that he agreed with that conclusion. These reports, and the testimony recounting them, were inadmissible because they were irrelevant and hearsay.
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1. The Evidence Was Irrelevant.
Dr. Cummings opined that the warning labels are ineffective and that the
FTC published reports reaching the same conclusion. But as a matter of law, the warnings—which were written by Congress and which PM USA cannot alter or omit—are sufficient to warn the public about the risks of smoking. See Good, 555
U.S. at 79 (cigarette labeling act “express[ed] Congress’ determination that the prescribed federal warnings are both necessary and sufficient to achieve its purpose of informing the public of the health consequences of smoking”); Medtronic, Inc. v. Lohr, 518 U.S. 470, 489 n.9 (1996) (“Congress deemed [the warning labels] both necessary and sufficient”). This is true not only because the precise wording, size, and placement of the warnings are dictated by federal statute (see 15 U.S.C. §
1331 et seq.), but also because that statute includes an express preemption clause
(id. at § 1334(b)) that prohibits states from imposing liability on cigarette manufacturers based on allegations that they should have included additional information regarding smoking and health on packages or advertising. See
Cipollone, 505 U.S. at 504. This is why the trial court instructed the jury that the labels were “adequate to warn Mr. Laramie and others” about the dangers of smoking. Indeed, the court told the jury that it “must take as truth in this case that the warnings . . . were adequate.” RAI/348.
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To be sure, evidence that the warnings were given was relevant to plaintiff’s warranty claim. To prevail, plaintiff had to establish that the cigarettes Mr.
Laramie smoked were “unreasonably dangerous,” and to evaluate that assertion, the jury was instructed to consider, among other things, “the instructions and warnings accompanying the product.” RAIII/169; see also Evans, 465 Mass. at
425. But it was not the jury’s task to evaluate the effectiveness of those warnings.
It was therefore error to admit evidence suggesting that the warnings were ineffective. At best, that evidence was irrelevant. After all, evidence is relevant only if it “has a tendency to make a fact more or less probable than it would be without the evidence,” and “the fact is of consequence in determining the action.”
Mass G. Evid. 401. The effectiveness of the warnings was not a fact “of consequence” to be decided by the jury; it was a fact that was established as a matter of law. And more than being simply irrelevant, the evidence was extremely and unfairly prejudicial. Even the judge recognized that the challenged evidence
“would seem to undercut” the legal conclusion that the warnings are adequate.
2. The FTC Reports Were Hearsay.
Even if the subject matter had been relevant, the reports themselves, and Dr.
Cummings’s testimony about them, should have been excluded because they were inadmissible hearsay. Dr. Cummings read into the record excerpts from two FTC reports in order to establish the truth of the matters asserted in those documents.
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The court recognized these statements as hearsay, but nonetheless admitted them under the ancient document exception (Mass. G. Evid. § 803(16)), which provides that a “statement in a document that is at least thirty years old and whose authenticity is established is admissible in evidence.”3 The court was correct that the documents were more than 30 years old, but the statements from those reports received in evidence were hearsay within hearsay, and they should have been excluded because the exception only applies to one level of hearsay.
a. The Reports Contained Hearsay Within Hearsay. The publications Dr. Cummings read to the jury do not report on the direct observations of FTC employees. They recount the opinions and research of hundreds of third parties. The 1967 report, for example, was prepared using “the results of three surveys.” Federal Trade Commission Report to Congress, June 30,
1967 (“1967 Report”), 90 CONG.REC. 20,045 (1967) (available at https://tinyurl.com/y3hkrrc6). The first survey was conducted by the FTC and consisted of a questionnaire sent to approximately 450 “persons and organizations actively engaged or interested in the subject of smoking and health.” Id. The report noted that the questionnaire “asked for the opinions of the respondents,
3 As noted, the actual reports were not admitted pursuant to a stipulation. But the court allowed portions of the documents to be displayed to the jury and read into the record as substantive evidence. RAI/329. That is the ruling being appealed.
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rather than for factual information or for the results of scientific inquiry,” and that
“[m]any of those responding emphasized that they had no hard facts to support their answers.” Id. (emphasis in original). The other two surveys were conducted by the U.S. Public Health Service. Id. Thus, by allowing Dr. Cummings to read from this report, the court admitted multiple levels of hearsay: the FTC report (first level of hearsay), which contained hearsay from the surveys (second level), which reported hearsay from the survey respondents (third level). The same is true of the other report at issue. It is also a compilation document in which agency staff reports on the findings and opinions of third parties.4
b. The Ancient Documents Exception Does Not Render Hearsay Within Hearsay Admissible. The trial court ruled that plaintiff could read portions of these reports into the record because they were admissible under the ancient document exception.
RA1/329. That was error because the reports consisted of multiple layers of hearsay (or “totem pole” hearsay, see, e.g., Commonwealth v. Santiago, 437 Mass.
4 See Federal Trade Commission Staff Report on the Cigarette Advertising Investigation, May 1981 (“1981 Report”), H.R. DOC.NO. 97-107, at 295 (1982) (available at https://tinyurl.com/yynxc7y4) (conclusions based on “an extensive review of the medical literature . . . consult[ation] with many of the foremost medical experts in the field [and] review of the available survey data”); id. (FTC’s “evaluation of the current warning is based on the results of several additional studies, the analysis of the consumer knowledge data and the advice of communications and advertising experts, including a New York advertising agency”).
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620, 627 n.4 (2002)), and the ancient document exception did not apply to each hearsay level. As the SJC has explained, “[t]otem pole hearsay is admissible only if each of the multiple hearsay statements falls within an exception to the hearsay rule.” DePina, 476 Mass. at 623. The Massachusetts Guide to Evidence codifies this rule at § 805, which states that “[h]earsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule in accordance with the common law, a statute, or a rule of court.”
Here, each of the challenged statements contained totem pole hearsay for which the ancient document exception might have applied to only the first layer.
The 1967 report contained hearsay from surveys, which transmitted hearsay from survey respondents. And the 1981 report relied on, among other things,
“consultation with . . . medical experts” and “the advice of communications and advertising experts, including a New York advertising agency.” The ancient document exception may have applied to the statements made by the authors of the reports, but it did not apply to the second- and third-level hearsay, none of which fell within a recognized exception. It certainly wasn’t covered by the ancient documents exception, which applies to statements in (1) thirty-year-old documents
(2) “whose authenticity is established.” To the extent the authors of the FTC reports were relying on documents, Mrs. Laramie did not attempt to establish that
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such documents were authentic—and how could she, unless she could establish a chain of custody for hundreds of hand-written survey response questionnaires? In any event, the reports make clear that their authors were not simply relying on
“documents”; they relied on consultations with unnamed “advertising executives” and “medical experts,” asked to give their “opinions” about the efficacy of warning labels. Such nested, untraceable hearsay is inadmissible.
Wingate v. Emery Air Freight Corp., 385 Mass. 402 (1982), illustrates the point. In Wingate, a defendant-employer prepared a report containing statements made by the injured plaintiff-employee. Id. at 403-04. The witness who testified concerning the report was not its preparer. Id. at 404. The trial court admitted the report under the business records exception. Id. The SJC reversed, holding that
“unless statements on which the preparer relies fall within some other exception to the hearsay rule, the proponent must show that all persons in the chain of communication, from the observer to the preparer, reported the information as a matter of business duty or business routine.” Id. at 406. In other words, every level of hearsay on the totem pole must fall under an exception, even if the initial layer qualifies under a recognized exception.
Although there appears to be no Massachusetts precedent applying the ancient document exception in this context, a decision from a Texas federal court offers persuasive guidance. Asked to decide whether to admit hearsay quoted
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within ancient documents, the court held that “permitting the admission of statements in ancient documents where the author is the declarant does not justify the admission of double hearsay merely because of its presence in an ancient document.” Hicks v. Charles Pfizer & Co. Inc., 466 F. Supp. 2d 799, 806 (E.D.
Tex. 2005). The court reasoned that requiring each hearsay layer to satisfy an exception “best reconciles the underlying justification of [Fed. R. Evid.] 803(16) with the limitations of [Fed. R. Evid.] 805,” which “would be superfluous if the explicit hearsay exceptions excused double hearsay.” Id. at 807.5 Other federal courts are generally in accord, see United States v. Hajda, 135 F.3d 439, 444 (7th
Cir.1998) (“[I]f the [ancient] document contains more than one level of hearsay, an appropriate exception must be found for each level”); Columbia First Bank, FSB v.
United States, 58 Fed. Cl. 333, 338 (Fed. Cl. 2003) (noting that if Rule 803(16) were read so as to inoculate multiple levels of hearsay, “Rule 805 would be superfluous”).6
5 Federal Rules of Evidence 803(16) and 805 are nearly identical to the Massachusetts analogues.
6 We acknowledge that some federal courts have admitted multiple hearsay contained in newspaper articles under the ancient document exception, but these courts have done so without analysis of the multiple hearsay issue. See Murray v. Sevier, 50 F. Supp. 2d 1257, 1265 n. 6 (M.D. Ala. 1999); Gonzales v. North Twp. of Lake County, 800 F. Supp. 676, 681 (N.D. Ind. 1992); Ammons v. Dade City, 594 F. Supp. 1274, 1280 n. 8 (M.D. Fla. 1984).
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B. It Was Error To Admit Evidence Of PM USA’s Private Knowledge And Motivations.
Plaintiff’s theme throughout trial was that PM USA’s public statements about the dangers of cigarettes were inconsistent with its internal documents—in other words, that PM USA lied to the public about the hazards of smoking. This focus began in opening statements, when counsel displayed over a dozen internal documents and told jurors that they would “judge whether or not” the sentiments expressed in those documents were “consistent with what [PM USA’s representatives] were telling the American public.” RAI/263. The theme continued in earnest throughout the presentation of evidence—plaintiff introduced dozens of what counsel repeatedly referred to as “secret internal industry documents” (RAI/259) to support Dr. Cummings’s irrelevant and prejudicial opinion that “Philip Morris and the other tobacco companies entered into an agreement to deceive the American public.” RAI/338. Indeed, during his direct examination, Dr. Cummings used the words “conspiracy,” “deceive,” “deception,” and “controversy” more than two dozen times. RAI/334, 338-39, 341, 357, 360-
61, 366-69, 373, 382.
It was error to admit this evidence and to permit counsel to invite the jury to impose liability on PM USA for having “deceived” the public, because the evidence and argument was not relevant to either of plaintiff’s claims. In her original complaint, plaintiff asserted a claim for civil conspiracy, in which she
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alleged that PM USA conspired with other tobacco companies to conceal information about the hazards of smoking and that Mr. Laramie had been harmed by that conspiracy. RAIII/258-59. But that claim was dismissed before trial.
RAIV/290. Only two claims were tried: breach of warranty and negligent distribution. No element of either claim related to PM USA’s honesty (or lack thereof) in its public statements.
The trial court held that this evidence was admissible because it was relevant to (a) “consumer expectations,” and (b) “causation.” RAII/35-37; RAIII/108. Both of those justifications were error.
1. The Evidence Was Not Relevant To Consumer Expectations.
In evaluating whether PM USA’s products were unreasonably dangerous, the jury was instructed to consider “the nature and strength of consumer expectations regarding the safety of the product, including expectations arising from product portrayal and marketing.” RAIII/169; Evans, 465 Mass. at 425. For that reason, the court admitted evidence, from both parties, about public statements regarding the hazards of smoking. Such information, the court reasoned, was relevant because it would help the jury determine what consumers believed about the risks of smoking. See Restatement (Third) of Torts, § 2 comment g
(“[A]lthough consumer expectations do not constitute an independent standard for judging the defectiveness of product designs, they may substantially influence or
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even be ultimately determinative on risk-utility balancing in judging whether the omission of a proposed alternative design renders the product not reasonably safe.”).
But “secret” documents purportedly showing that PM USA’s public statements were dishonest, or that it conspired with others to “conceal” the truth, could not, by definition, have affected consumer expectations, because they were not seen by consumers. And what PM USA knew, believed, or intended has no bearing on what the public believed, or more generally, on whether the product itself was unreasonably dangerous—which is what the jury in a strict liability case like this one is ultimately asked to decide. See, e.g., Lighthouse Masonry, 466
Mass. at 699 (“Under a strict liability scheme, [a defendant’s] reason for the violation is irrelevant.”).7
2. The Evidence Was Not Relevant to Causation.
The trial court’s second justification for admitting this evidence—because it was relevant to “causation”—fares no better. Neither of the causation inquiries in this case had anything to do with PM USA’s public statements, or whether they were honest or dishonest. On the warranty claim, the jury was asked whether “the
7 See also, e.g., United States v. Little, 59 F. Supp. 2d 177, 186 (D. Mass. 1999) (“Defendants’ willfulness [was] irrelevant for purposes of liability” under “strict liability” statute); United States v. Metro. Dist. Comm’n, No. 85 cv 0489, 1985 WL 9071, at *11 (D. Mass. Sept. 5, 1985) (“Intent and good faith are irrelevant to . . . actions [that] are based on strict liability.”).
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defectively designed cigarettes that Fred Laramie smoked [were] a substantial contributing factor in causing his lung cancer and death.” RAV/125. That inquiry focused on whether PM USA’s “breach of warranty”—that is, its sale of a defective product—was a legal cause of Mr. Laramie’s lung cancer and death.
RAIII/170 (“If you decide that the Marlboro cigarettes Mr. Laramie smoked were defective, you must then consider whether the Defendant’s breach of warranty caused Mr. Laramie’s injuries.”). And it is black-letter law in Massachusetts— again, reflected in the jury instructions—that a breach of warranty “does not depend on whether the manufacturer made any actual statement or representation about its product.” RAIII/168.
The same is true with respect to negligence. The “causation” inquiry put to the jury was whether PM USA’s alleged negligence “was a substantial contributing factor in causing Fred Laramie’s lung cancer and death.” RAV/126. And the alleged “negligence” was very specific: “[I]n this case, the Plaintiff allege[d] that
Philip Morris negligently distributed free samples of Marlboro cigarettes to Mr.
Laramie when he was a minor.” RAIII/171. To prove causation, plaintiff had to prove that that act—distribution of free samples—caused Mr. Laramie’s injuries.
In short: neither of plaintiff’s claims alleged that Mr. Laramie’s injuries were caused by his reliance on knowingly false statements, and proof of such knowing falsity would not have sufficed to prove causation on either claim. This is
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because plaintiff was not asserting a claim for fraud or for conspiracy to commit fraud; she abandoned such claims when she dismissed her conspiracy claim and proceeded to trial solely on theories of warranty and negligence.
C. It Was Error To Instruct The Jury About “Misrepresentations.”
Both evidentiary errors were compounded by an independent instructional error. In its final instructions, the court repeated the curative instruction it had given during trial, informing the jury (correctly) that there were no claims in the case for fraud or failure to warn, and that the Congressional warning labels were adequate to inform the public of the hazards of smoking. But it followed that instruction, immediately, with an additional sentence that negated the curative instruction and invited the jury to find that PM USA should be held liable for
“mislead[ing] consumers” and making “misrepresentations about the risks” of smoking. The full instruction was as follows:
[T]he plaintiff is not making any claim in this case that the Defendant failed to warn Mr. Laramie of the dangers associated with smoking or engaged in any fraud. As I told you during trial, the United States Congress has mandated since July 1 of 1969 what warning labels cigarette manufacturers such as the Defendant have been required to place on all cigarette packages and cigarette advertisements, and you must accept as true in this case that those congressionally mandated warnings were adequate as a matter of law to warn Mr. Laramie and other members of the public of the hazards associated with smoking. The law, however, does not permit a cigarette manufacturer through its statements or actions
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to mislead consumers or make misrepresentations about the risks or hazards associated with smoking.
RAIII/168 (emphasis added).
It was error to include the italicized sentence because it suggested to the jury—consistent with the evidence that was erroneously admitted through Dr.
Cummings—that PM USA had violated “the law” by neutralizing the effect of the
Congressional warning labels through “misleading” advertising. There was no claim in the case that PM USA had misled consumers; plaintiff dismissed that claim prior to trial. And in any event, any claim that PM USA neutralized the warnings through misleading advertising would have been preempted by federal law. See Cipollone, 505 U.S. at 527 (“warning neutralization” claims alleging that statements or imagery in cigarette marketing misleadingly “downplay[ed] the dangers of smoking” and thus “minimize[d]” or otherwise “neutralized the effect of federally mandated warning labels” are preempted).8 Nor did the court cure the error by telling the jury there were no claims in the case for “fraud” or “fail[ure] to warn”; what matters is the substance of the instruction, which invited the jury to conclude that PM USA had committed a tort by neutralizing the efficacy of the
8 See also, e.g., Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1202 (11th Cir. 2004) (conspiracy claim preempted “insofar as it is premised upon the allegation that the defendants used advertising to neutralize the effect of federally mandated warning labels”); Brown v. Brown & Williamson Tobacco Corp., 479 F.3d 383, 392 (5th Cir. 2007); Aspinall v. Philip Morris Cos., 2006 WL 4968277, at *10 (Mass. Super. Ct. Aug. 10, 2006).
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warnings. See Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1043 (7th
Cir. 1999) (“[I]f a particular state-law tort is preempted by federal law, it cannot be resuscitated by being given a new name.”).
D. The Errors Were Not Harmless.
In determining whether a new trial is required based on the erroneous admission of evidence, “the appropriate test is whether the proponent has made a plausible showing that the trier of fact might have reached a different result if the evidence had [not] been before it.” Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 275
(1990). That test is satisfied where wrongfully admitted evidence “directly contradict[s] a central contention of the defendant’s case” and “[goes] to a central issue in dispute.” Id. The evidence here satisfies this test. The FTC reports concluded that cigarette advertising negated the effectiveness of the warning labels. Not only did this evidence permit plaintiff to contest an issue that should have been settled in PM USA’s favor as a matter of law, but its hearsay nature prohibited rebuttal because the declarant could not be cross examined. The same is true for the evidence of PM USA’s internal knowledge and motivations. Plaintiff made this evidence a central feature of her case, highlighting it throughout trial.
Removing it from the jury’s consideration would likely have affected the outcome.
The erroneous jury instruction also necessitates a new trial. Where a trial court gives an erroneous instruction, a new trial is required unless the reviewing
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court “can be certain that the improper instruction did not influence the jury, or had but very slight effect.” Commonwealth v. Vick, 454 Mass. 418, 423 (2009). It is impossible to conclude that the challenged instruction—which told the jury that
“the law does not permit . . . misleading statements”—could have had no effect, or only a “very slight effect,” on deliberations. The trial was dominated by evidence that PM USA had made “misleading statements” and that they had neutralized the warning labels. And the instructions told the jury to consider those warnings when deciding whether PM USA had sold defective products.
II. COUNSEL’S MISCONDUCT DURING CLOSING ARGUMENT WARRANTS A NEW TRIAL
In considering whether to grant a new trial based on improper closing arguments, this Court “will reverse and, where appropriate, order a new trial unless
[it] can say with substantial confidence that the error would not have made a material difference” in the outcome of the case. Wahlstrom, 95 Mass. App. Ct. at
448; see also Carta v. B.R.E. Corp., 62 Mass. App. Ct. 1104, 2004 WL 2238543, at *3 (2004) (“Prejudicial misconduct by opposing counsel that is not cured by the judge’s instructions may justify the granting of a new trial.”); Fyffe, at 462.
Counsel’s flagrant commentary throughout closing argument almost certainly resulted in miscarriage of justice requiring a new trial.
First, it is well established that counsel may not “misstate the evidence [or] refer to facts not in evidence.” Fitzpatrick, 96 Mass. App. Ct. at 430. Yet arguing
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facts not in evidence—or, worse still, arguing facts contradicted by actual evidence—is precisely what counsel did when he told the jury: (1) the Laramies lived “paycheck-to-paycheck”; (2) there was no evidence that Mr. Laramie’s parents or friends smoked; and (3) that the addiction expert testified that Mr.
Laramie would not have become addicted to low nicotine cigarettes.
Second, counsel is not permitted to “suggest[] that the defendant’s counsel concealed evidence with the goal to confuse, deceive . . . and mislead the jury.”
Stiles v. Demoulas Super Markets, Inc., 94 Mass. App. Ct. 1116, 2019 WL 124230. at *1-2 (2019). Nevertheless, plaintiff’s counsel here told the jury in no uncertain terms defense counsel “want[s] to confuse you.” Furthermore, according to plaintiff’s counsel, defense counsel had “put words into [the] mouth[s]” of plaintiff’s witnesses in an attempt to confuse them as well. Given these allegations, it was only natural that plaintiff’s counsel should repeatedly urge the jury to disregard any of the defense lawyer’s “muck on the wall” arguments.
Third, “the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties.” Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007). The Due
Process Clause, however, was no barrier to plaintiff’s counsel, who told the jury— under the ruse of pretending to uphold this constitutional prohibition—that they could not punish PM USA “for all the other people that they killed.” The true
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purpose of the comment, of course, was to plant in the minds of the jurors the notion that PM USA had “killed” many people, just as the question “So when did you stop beating your wife?” is not really a question about when an event occurred, but is instead a vehicle for smuggling the accusation that the witness beats his wife.
Fourth, counsel was prohibited from advancing arguments “‘intended [for] the jury to infer that [the Laramies] [were] pitted against a large, wealthy corporation, and that the jury must rise to the occasion.” Stiles, 2019 WL 124230, at *1. The only reason for telling the jury about the Laramies’ economic circumstances was to invite it to restore equilibrium between the poor and powerless, and the wealthy and powerful. Shocking the jury with PM USA’s corporate revenues, see e.g., RAIII/155 (“You heard they ma[d]e . . . $21 billion in
2018. . . . That means . . . their net revenues were almost 60 million a day.”), was also intended to feed this narrative.
Fifth, plaintiff’s counsel was not allowed to influence the jury’s decision- making process through “improprieties,” “inflammatory remarks,” or “unfounded statements” (Fyffe, 86 Mass. App. Ct. at 474-75) designed “to appeal to the jurors’ emotions, passions, prejudices, or sympathies” (Fitzpatrick, 96 Mass. App. Ct. at
430). There is simply no other way to view counsel’s commentary—including the insinuation that PM USA was so evil that it deliberately sought to create a more
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severe type of lung cancer because “regular lung cancer wasn’t good enough”—as anything other than improper, inflammatory, and unfounded.
Even had it tried, the trial court likely could not have cured the prejudice created by counsel’s misbehavior in closing. Fyffe, 86 Mass. App. Ct. at 473, 475
(trial court’s “efforts to address the numerous and repeated violations of the law by plaintiff’s trial counsel fell short.”). As it was, however, the court failed to sustain any of defense counsel’s objections, leaving not only the stain of counsel’s remarks, but the tacit impression that they carried the court’s imprimatur. Id. at
473 (concluding that defense counsel’s “numerous objections at trial, especially during plaintiff’s counsel’s closing argument, were sufficient to call the misconduct of opposing counsel to the judge’s attention and impose on [him] a duty to take corrective action.”). A new trial is required.
III. THE TRIAL COURT ERRED BY PERMITTING PLAINTIFF TO PURSUE PUNITIVE DAMAGES.
Plaintiff’s punitive damages claim was barred by res judicata and should have been dismissed. Punitive damages are not intended to compensate the plaintiff, but to punish and deter the tortfeasor. As such, they exist solely to vindicate a public purpose. Although private plaintiffs are sometimes allowed to pursue punitive damages, they do so not because of any individual right to recover them, but as private attorneys general litigating on behalf of the State. Here, the actual attorney general already litigated a punitive damages claim against PM USA
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on behalf of all Massachusetts citizens, seeking to punish the exact conduct that was alleged in Mrs. Laramie’s complaint. Because plaintiff has no private interest in obtaining punitive damages to punish the same conduct, res judicata bars her claim.
Appellate courts in four other states have considered this issue, and the two whose laws and litigation history most closely mirror Massachusetts’ (New York and Georgia) have ruled that punitive damages are barred in private suits by individual citizens against tobacco companies. Precedent from California and
Florida—holding that prior State litigation does not bar private punitive damages claims—is readily distinguishable. Unlike Massachusetts (and New York and
Georgia), California does not employ the “transactional” approach to res judicata.
And Florida resolved its underlying litigation through an agreement that did not purport to resolve punitive damages claims.
A. Massachusetts Settled All Claims for Punitive Damages Against PM USA On Behalf Of Its Citizens.
In 1995, the Massachusetts Attorney General sued various cigarette manufacturers, including PM USA. The complaint alleged that since the 1950s, the defendants had conspired to conceal the health effects of smoking and to induce addiction to cigarettes. RAIII/235. The Attorney General asserted numerous claims, including breach of warranty, and he sought various forms of relief, including punitive damages pursuant to the Massachusetts Consumer
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Protection Act, G.L. c. 93A. RAIII/331-46. Specifically, the complaint requested punitive damages in the form of: (1) civil penalties; and (2) treble damages.
RAIII/347.
In 1998, Massachusetts, along with 45 other States that had filed similar lawsuits, executed a $240 billion “Master Settlement Agreement” (“MSA”) with the defendants. Lopes v. Commonwealth, 442 Mass. 170, 174 (2004). Under the terms of the settlement, Massachusetts would receive a guaranteed payment of approximately $9 billion over 25 years, followed by annual payments of approximately $300 million per year, in perpetuity, for as long as the defendants remain in business. Id. at 174-75. In addition to paying money, the defendants agreed to refrain from many of the activities that had given rise to the State’s allegations.
In return, the parties agreed to release certain claims. According to the MSA, both Massachusetts and any person in the Commonwealth seeking to vindicate the interests of the “general public” are “absolutely and unconditionally” barred from bringing claims for “civil penalties and punitive damages,” “accrued or unaccrued,”
“for past conduct . . . in any way related . . . to” cigarette “manufactur[ing] and
“marketing,” or for “future conduct” related to the “use of” cigarettes. RAIV/17,
23-24, 120. Individuals allegedly harmed by tobacco industry conduct are not barred by the MSA from bringing subsequent lawsuits, but only to the extent their
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individual suits seek “solely . . . private or individual relief for separate and distinct injuries.” RAIV/24.
The settlement was reduced to a Consent Decree and Final Judgment in
December 1998. RAIV/282-89.
B. Res Judicata Bars Private Citizens From Pursuing Punitive Damages Again, In Subsequent Litigation.
The doctrine of res judicata is familiar and straightforward: when a claim has been litigated and resolved, it cannot be relitigated in a subsequent suit brought by parties to the original action or their privies. See DeGiacomo v. City of Quincy,
476 Mass. 38, 41 (2016). It requires three elements: “(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and
(3) prior final judgment on the merits.” Kobrin, 444 Mass. at 843. These elements are satisfied here.
This court reviews “the application of res judicata as a question of law.”
Resto v. City of Lawrence, 89 Mass. App. Ct. 1121 (2016).
1. Plaintiff Is In Privity With The Attorney General.
The SJC has identified the following factors as relevant to determining when parties are in privity: (1) “the nature of the nonparty’s interest,” (2) “whether that interest was adequately represented by a party to the prior litigation,” and (3)
“whether binding the nonparty to the judgment is consistent with due process and common-law principles of fairness.” DeGiacomo, 476 Mass. at 43–44. Each of
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those factors weighs heavily in favor of concluding that the citizens of
Massachusetts, on whose behalf the prior lawsuit was filed, were in privity with the
Attorney General for purposes of punitive damages.
a. Plaintiff’s Interest In Punitive Damages Is The Same Public Interest Pursued By The Attorney General. Mrs. Laramie’s interest in pursuing punitive damages against PM USA when she sued in 2017 was the same as the Attorney General’s in 1995: punishing and deterring PM USA on behalf of the people of Massachusetts. That is because the purpose of punitive damages is not to compensate a plaintiff—that purpose is served by compensatory damages—but to “condemn[] and deter[]” the defendant.
Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 412 (2013).
Both of these purposes are public, not private. See Fabiano, 54 A.D.3d at
150 (punitive damages are “quintessentially and exclusively public in their ultimate orientation and purpose”). The condemnation expressed by a jury awarding punitive damages reflects the disapproval of the public. See Haddad v.
Wal-Mart Stores, Inc., 455 Mass. 91, 111 (2009) (punitive damages authorized where “defendant’s behavior is so egregious that it warrants public condemnation”). And the deterrent purpose is oriented at protecting society, not the individual plaintiff. See Mass. Super. Ct. Civil Practice Jury Instructions §
3.15 (“In determining the amount of a punitive damage award, if any, you should consider . . . the magnitude of any potential harm to other victims if similar future
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behavior is not deterred.”); Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290,
298 (2016) (“Punitive damages are intended to fulfil a prophylactic purpose.”). As plaintiff’s counsel stated in closing, punitive damages are imposed so “that company that’s looking and deciding how they want to conduct themselves here in
Massachusetts, they’re going to think twice.” RAIII/154-55.
This is why “[t]here is no vested right to punitive damages” for individual plaintiffs. McKinnon v. Kwong Wah Rest., 83 F.3d 498, 508 (1st Cir. 1996).
“[W]here allowed, they are awarded as a matter of public policy to punish outrageous conduct by the defendant or to deter similar conduct in the future.” Id.
Plaintiff’s counsel explained this during closing, telling the jury that “punitive damages aren’t meant to go to Pam and Ashley Laramie[,] [t]hat’s not the purpose.” RAIII/153.
b. The Attorney General Adequately Represented Plaintiff’s Interest In The Prior Suit. The second privity factor is whether Mrs. Laramie’s “interest” in punitive damages (really, the public’s interest in punishment and deterrence) was adequately represented by the Attorney General in the prior litigation. It was.
To begin, the statute under which the Attorney General sought civil penalties
(G.L. c. 93A § 4), only authorizes such claims in circumstances where the
Attorney General has “reason to believe” that “the proceedings would be in the public interest.” The Commonwealth’s complaint invoked this authority, alleging
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that there was “reason to believe that proceeding under G.L. c. 93A, § 4, would be in the public interest.” RAIII/330. The factual allegations demonstrate why: the complaint alleged that the defendants had conspired to mislead “the
Commonwealth of Massachusetts and its citizens” (RAIII/263), that the defendants breached a duty to “the citizens of Massachusetts and the Commonwealth”
(RAIII/331), and that their “wrongful conduct ha[d] significantly interfered with and caused substantial injury to the health, welfare, and safety of the citizens of
Massachusetts” (RAIII/338).
And the Attorney General’s representation of Mrs. Laramie’s interest was more than “adequate.” The Commonwealth’s claim was resolved via the MSA, pursuant to which PM USA has been punished to the tune of billions of dollars, and deterred from engaging in the activities the Attorney General and Mrs.
Laramie alleged were wrongful: The MSA prohibits PM USA from, for example, marketing to youth, distributing branded merchandise, communicating with the public through trade groups, and failing to disclose internal research.
c. Binding Plaintiff To The Judgment Is Consistent With Due Process And Common-Law Fairness. As discussed, plaintiff has no right to obtain punitive damages. McKinnon,
83 F.3d at 508. Thus, barring her from seeking such damages when the Attorney
General has already sought them is fully consistent with due process and common
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law fairness. If anything, it would violate due process to punish PM USA again for the same conduct. Williams, 549 U.S. at 353.
2. Both Lawsuits Sought To Punish The Same Conduct.
There should be little dispute that the second element of res judicata—claim identity—is satisfied. Indeed, at the summary judgment stage, plaintiff agreed that
“[b]oth the action brought by the Massachusetts Attorney General and this lawsuit assert a similar history of alleged wrongdoing of PM USA going back decades.”
RAIII/227. Under Massachusetts law, that is enough to establish claim identity, because Massachusetts “ha[s] adopted a broad transactional approach to the application of res judicata.” Korn v. Paul Revere Life Ins. Co., 83 Mass. App. Ct.
432, 436 n.2 (2013). Under this approach, courts look to whether the claims asserted in both actions “pertain[] to a common nucleus of operative facts.” Boyd v.
Jamaica Plain Coop. Bank, 7 Mass. App. Ct. 153, 164 (1979). So long as such common facts exists, res judicata is applied to claims that derive from the “same transaction or series of connected transactions.” St. Louis v. Baystate Med. Ctr.,
Inc., 30 Mass. App. Ct. 393, 399 (1991). This is true “even though the claimant is prepared in a second action to present different evidence or legal theories to support his claim.” Heacock v. Heacock, 402 Mass. 21, 23 (1988).
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a. Both Actions Allege The Same Wrongful Conduct. Plaintiff’s concession that the two lawsuits derive from a “similar history” makes sense; it is hard to compare the two complaints and conclude otherwise.
Indeed, many of the allegations are identical or nearly so. For example, both complaints:
• Contain substantially similar opening paragraphs summarizing the allegations. Compare, RAIII/263-64 (“For years,” cigarette manufacturers “engaged in a conspiracy to mislead, deceive, and confuse” the public “that cigarette smoking causes fatal disease” and “that the nicotine in cigarettes is a powerfully addictive substance.”) with RAIII/235 (“Through the years,” PM USA “engaged in a public relations campaign to deliberately mislead, confuse, and deceive the public” regarding “the dangerousness of their cigarettes and the addictive quality of the nicotine contained therein.”).
• Describe the formation and activities of the same industry trade groups. Compare RAIII/278-79 with RAIII/248-49.
• Recount that in 1954, in response to research demonstrating the risks of smoking, manufacturers published a newspaper advertisement telling consumers they would assist research regarding smoking and health. Compare RAIII/280-81 with RAIII/247-49.
• Rely on the same internal documents regarding the industry’s strategy to combat research into smoking and disease. Compare RAIII/290-91(citing 1972 memorandum describing the industry’s “brilliantly conceived and executed” strategy of “creating doubt about the health charge without actually denying it”) with RAIII/250 (quoting the same language from the same memorandum).
• Rely on the same documents regarding PM USA’s knowledge about the dangers of smoking. Compare RAIII/283 (citing 1958 memorandum stating “the evidence . . . is building up that heavy cigarette smoking contributes to lung cancer either alone or in association with physical and physiological factors”) with RAIII/241 (quoting the same language from the same memorandum); compare RAIII/283 (citing 1961 memorandum stating
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“carcinogens are found in practically every class of compounds in smoke”), with RAIII/247 (quoting the same language from the same memorandum).
• Allege that PM USA sought to encourage underage consumers to smoke in order to induce addiction at a young age. Compare RAIII/323-28 with RAIII/253-55.
• Accuse PM USA of manipulating nicotine to increase addictiveness. Compare RAIII/312 (alleging nicotine manipulation intended to “create and sustain” addiction) with RAIII/245 (alleging that PM USA manipulated nicotine “to create and maintain” addiction).
Additionally, both the Attorney General’s complaint and plaintiff’s complaint asserted identical warranty claims, using largely verbatim language.
Compare RAIII/336-37, with, RAIII/255-56.
In sum: the complaints do not merely allege similar or related misconduct; they allege the same misconduct based on the same evidence. And although assertion of the same legal claim is not necessary for res judicata, it is notable that both complaints did assert the same warranty claim alleging that the same cigarettes were defectively designed, for the same reasons.
b. Both Complaints Sought To Punish PM USA Through Punitive Damages. In addition to alleging the same misconduct and legal theory, both complaints sought to punish that conduct through an award of exemplary damages.
Mrs. Laramie sought punitive damages pursuant to the wrongful death statute
(G.L. c. 229 § (2)), which authorizes such damages where the decedent’s death was caused by the defendant’s “gross negligence” or “malicious, willful, wanton, or
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reckless conduct.” And the Attorney General sought two types of punitive relief
(see RAIII/340-43): (1) “civil penalties” under Section 4 of the Consumer
Protection statute (G.L. c. 93A, § 4); and (2) “treble damages” under Section 9 of that statute (G.L. c. 93A § 9(3))—both of which are authorized upon findings of
“willful” (§ 9), “knowing” (§§ 4 & 9), or reckless (§ 4) violations. Both are forms of punitive relief. Clegg v. Butler, 424 Mass. 413, 425 (1997) (“The multiple damages provided under c. 93A [§ 9] are punitive damages.”); Anderson v. Nat’l
Union Fire Ins. Co. of Pittsburgh, 476 Mass. 377, 381 (2017) (“General Laws c.
93A, § 9(3), requires that the judge ‘shall’ award punitive damages of ‘up to three but not less than two times’ the actual damages in the underlying action.”);
Mitchell v. Liberty Chevrolet Inc., 2019 Mass. App. Div. 61 (Dist. Ct. 2019)
(describing § 9 treble damages as “punitive damages”). And of course, the “civil penalties” authorized under § 4 are punitive as well.
3. The Consent Decree Was A Final Judgment On The Merits.
The final element of res judicata—prior final judgment on the merits—is also satisfied. “A consent judgment . . . conclusively determines the rights of the parties as to all matters within its scope.” Kelton Corp. v. Cty. of Worcester, 426
Mass. 355, 359 (1997); Silva v. City of New Bedford, 677 F. Supp. 2d 367, 369 (D.
Mass. 2009) (“[A] court-approved settlement generally receives the same res judicata effect as a litigated judgment.”).
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C. Punitive Damages Are Barred By The Terms Of The MSA.
Even if res judicata did not apply, the MSA would independently bar citizen suits for punitive damages, because such suits were released as a condition of settlement. “A settlement agreement is a contract and its enforceability is determined by applying general contract law.” Sparrow v. Demonico, 461 Mass.
322, 327 (2012). In Massachusetts, “an intended beneficiary of a contract who was not a party to the contract” may “acquire obligations under the contract.” Licata v.
GGNSC Malden Dexter LLC, 466 Mass. 793, 803 (2014). Mrs. Laramie was an
“intended beneficiary” of the MSA because the “language and circumstance of the contract show that the parties to the contract clearly and definitely intended the beneficiary to benefit from the promised performance.” Ajemian v. Yahoo!, Inc.,
83 Mass. App. Ct. 565, 578 (2013). Specifically, the MSA provides that it will
“achieve for the Settling States and their citizens significant funding for the advancement of public health” and “the implementation of important tobacco- related public health measures.” RAIV/12. Thus, because the MSA parties intended to benefit nonparties such as plaintiff, she is bound by its provisions.
D. Persuasive Authority Favors Preclusion.
This Court would not be breaking new ground if it held that the MSA bars recovery of punitive damages in individual suits. Courts in two other states have come to the identical conclusion on very similar facts.
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Most relevant are the multiple New York decisions on this issue. In
Fabiano v. Philip Morris Inc., the Appellate Division First Department (in a decision authored by the future Chief Judge of New York’s highest court) concluded that under New York law, “punitive damages are quintessentially and exclusively public in their ultimate orientation and purpose,” and “do not, even when asserted in the context of a personal injury action, essentially relate to individual injury.” 54 A.D.3d at 150. Because there was no “private interest to be vindicated by a claim for punitive damages” against the tobacco companies, any such claims were barred by res judicata. Id. at 151. Relying on Fabiano, the First
Department’s sister court, the Second Department, held the same in Shea v.
American Tobacco Co., explaining that res judicata barred punitive damages claims because they were “among those [] encompassed by the expressed language and scope of the master settlement agreement.” 73 A.D.3d 730, 732 (2d Dep’t
2010). Federal courts applying New York state law are in accord. See e.g. Grill v.
Philip Morris USA, Inc., 653 F. Supp. 2d 481, 498 (S.D.N.Y. 2009); Mulholland v.
Philip Morris USA, Inc., 598 F. App’x 21, 24 (2d Cir. 2015). Because New York, like Massachusetts, applies the transactional approach to res judicata (O’Brien v.
City of Syracuse, 54 N.Y.2d 353, 357 (1981)) these decisions are directly on point.
The Supreme Court of Georgia, on substantially similar facts and applicable law, has also held that the MSA barred private claims for punitive damages,
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reasoning that “punitive damages serve a public interest and are intended to protect the general public, as opposed to benefitting or rewarding particular private parties.” Brown & Williamson Tobacco Corp. v. Gault, 627 S.E.2d 549, 552 (Ga.
2006). In fact, Georgia applies a more stringent test than Massachusetts’s
“transactional” test, requiring an “identity of the cause of action.” Id. at 551.
Out-of-state authority to the contrary is distinguishable. In Bullock v. Philip
Morris USA, Inc., 198 Cal. App. 4th 543 (2d Dist. 2011), the California Court of
Appeal held that the MSA did not preclude punitive damages claims, but only because California does not apply the transactional approach to res judicata.
Instead, California follows a “primary rights” theory, under which “a cause of action consists of the plaintiff’s primary right to be free from a particular injury.”
Id. at 557. The Bullock court expressly distinguished New York’s decisions based on the difference between these two doctrines. See id. at 558 n.5.
Florida’s Supreme Court has also held that punitive damages claims are not barred by the state’s prior tobacco litigation. Engle v. Liggett Grp., Inc., 945 So.
2d 1246, 1260 (Fla. 2006). But Florida settled its tobacco suit through an agreement separate from the MSA that did not bar individual punitive damages claims. The Florida agreement resolved claims “which [were] or could have been asserted by any of the parties” to the underlying litigation. Id. at 1258 (emphasis in
Engle). By contrast, the MSA defined “Releasing Parties” as “persons or entities
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acting in a . . . private attorney general . . . or any other capacity, whether or not any of them participate in this settlement, [] to the extent that any such person or entity is seeking relief on behalf of or generally applicable to the general public . . . as opposed solely to private or individual relief for separate and distinct injuries.”
RAIV/24-25. As discussed, this definition includes plaintiffs who sue as private attorneys general seeking punitive damages. That this definition also carves out claims for individual relief only reinforces the conclusion that the MSA (unlike
Florida’s agreement) covers the claim here. Engle is further inapposite because the holding was based on the fact that the underlying state lawsuit was not brought in a representative (or “parens patriae”) capacity, unlike Massachusetts’s action. See
Engle, 945 So. at 1260.
CONCLUSION This Court should vacate the judgment, dismiss the punitive damages claim, and remand for a new trial on all the remaining claims.
Dated: July 27, 2020
Respectfully submitted,
/s/ Scott A. Chesin Scott A. Chesin (BBO # 653907) MAYER BROWN LLP 1221 Avenue of the Americas New York, NY 10020 (212) 506-2274 [email protected]
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Kenneth J. Parsigian (BBO # 550770) U. Gwyn Williams (BBO # 565181) William J. Trach (BBO #661401) Allison L. Turner (BBO # 682906) LATHAM & WATKINS LLP John Hancock Tower, 27th Floor 200 Clarendon Street Boston, Mass. 02116 (617) 948-6000 [email protected] [email protected] [email protected]
Laura K. Whitmore (BBO # 569550) SHOOK, HARDY & BACON LLP 100 North Tampa Street, Suite 2900 Tampa, Fla. 33602 (813) 202-7100 [email protected]
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ADDENDUM TABLE OF CONTENTS Table of Contents ...... 59
Decision and Order Regarding Request for Reconsideration Concerning PM USA’s Motion in Limine # 3 ...... 60
Order on PM USA’s Motion for Judgment Notwithstanding the Verdict, or, in the Alternative, for a New Trial ...... 65
Memorandum and Order on PM USA’s Motion for Summary Judgment ...... 67
Judgment on Jury Verdict Dated Aug. 16, 2019...... 71
Amended Judgment on Jury Verdict Dated Oct. 18, 2019 ...... 72
Mass. Gen. Law c. 229 § 2 ...... 73
Mass. Gen. Law c. 93A, §§ 4, 9 ...... 74
15 U.S.C. §§ 1333, 1334 ...... 79
Excerpt from the Federal Trade Commission Report to Congress, June 30, 1967 ...... 85
Excerpt from the Federal Trade Commission Staff Report on the Cigarette Advertising Investigation, May 1981 ...... 87
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' ~-\q ~~~°" .- Laramie v. Philip Morris USA Inc., et al. - L~-w\ Vl•i\Rt>· ... ~~~, '!)•°::>·~· Suffolk Superior Court Action No. 1784CV02240-BLS 1 \l>I ~.~·"". -~~~-S,\.· Decision and Order Regarding Request for Reconsideration Concerning ~~t. f\llC,,. Defendant's Motion in Limine #3: v,_e;,pJ9.?~Plaintiff Pamela Laramie ("Ms. Laramie" or "Plaintiff') brings this action as the personal ~.v.. · ~,- representative of the estate of her late husband, Fred R. Laramie ("Mr. Laramie"). ·lbfl-:S'i ~~Mr. Laramie died of lung cancer in December 2016. Ms. Laramie alleges that -~f "·\\·L-Mr. Laramie's lung cancer was caused by his longtime use of Marlboro and Marlboro ~'~~·,\).\,a>P"1Light cigarettes, which are manufactured by defendant Philip Morris USA, Inc. ("Philip r':l~-,1>«\.~, Morris" or "Defendant"). Ms. Laramie further alleges that Marlboro cigarettes are ·-~·t\fo.c\~ "defective and unreasonably dangerous," and that they "should not have been marketed, given or sold to [Mr.] Laramie at any time, but especially not when he was a child and un-addicted." First Amended Complaint and Jury Trial Demand (Docket Entry No. 10.1) at 1. Ms. Laramie asserts claims against Philip Morris for breach of warranty and negligence. Her claims are set to go to trial before a Suffolk County jury beginning on Monday, July 29, 2019.
On July 2, 2019, the Court conducted a lengthy hearing on the parties' numerous motions in limine and other pretrial motions. One of the motions heard and decided by the Court on that date was Philip Morris' Motion in Limine #3 to Exclude Evidence Regarding Any Alleged Conspiracy (Docket Entry No. 29.0) ("Motion #3"). The Court expressly denied Motion #3 "based upon Defendant's representation that it intends to argue Mr. Laramie's comparative negligence at trial." See Decision and Order Regarding Multiple Pre-Trial Motions (Docket Entry No. 51.0) at 3.
Since the Court issued its ruling on Motion #3, Philip Morris has elected to withdraw its comparative negligence defense. Philip Morris still plans, however, to offer evidence at trial that Mr. Laramie's lung cancer was legally caused, not by Philip Morris' acts or omissions, but by Mr. Laramie's personal decision to continue smoking for many years despite his purported "knowledge of the health risks and addictive nature of cigarette smoking." Philip Morris' Response to Plaintiff's "Supplemental Memorandum" in Support of Her Request for Reconsideration of the Court's Pretrial Ruling on Defendant's Motion #3, dated July 25, 2019, at 5. Thus, Philip Morris still intends to lay the legal blame for Mr. Laramie's injuries squarely at his own feet, but it will not ask the jury to assess its and Mr. Laramie's relative culpability, and it will not seek to reduce any compensatory damage award Plaintiff might obtain based upon Mr. Laramie's percentage degree of fault.
--·----
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Both sides now seek guidance from the Court as to whether its prior denial of Defendant's Motion #3 remains in effect in light of Philip Morris' decision to withdraw its comparative negligence defense.
The answer to the question posed is, "it does," because the reasoning behind the Court's decision on Motion #3 has not materially changed. To be more specific, the Court denied Motion #3 because the Court believes that it would be incongruous and unfair to permit Philip Morris to argue that Mr. Laramie was legally responsible for his own injuries based upon his choice to continue smoking cigarettes in the face of his purported knowledge of the health risks associated with smoking, while simultaneously prohibiting Plaintiff from offering evidence that, during the relevant time frame, Philip Morris concealed and/or publicly downplayed the full health risks associated with smoking. The risk of unfairness that drove the Court's original ruling on Motion #3 is not alleviated by Philip Morris' decision to withdraw its comparative negligence defense, while, at the same time, reserving its right to blame Mr. Laramie for his own failure to act. Philip Morris, in effect, offers half a loaf, which means that the potential for unfairness persists.
The United States Court of Appeals for the Eleventh Circuit faced the same question under comparable circumstances in Cote v. R.J. Reynolds Tobacco Co., 909 F.3d 1094 (2018) ("Cote"). Judith Berger ("Mrs. Berger"), the claimant in Cote, started smoking at the age of thirteen and continued to smoke Philip Morris cigarettes -- despite numerous attempts to quit -- for the next forty years. 1 Id. at 1101-11.02. Mrs. Berger eventually was diagnosed with chronic obstructive pulmonary disease, and she brought suit against Philip Morris for her alleged smoking-related injuries. Id. at 1100-1102. She prevailed at trial, but the trial court granted Philip Morris' motion for judgment as a matter of law ("JMOL") with respect to her fraudulent concealment and conspiracy claims because it found that,
Mrs. Berger's own testimony that she started smoking due to peer pressure and that she chose her cigarette brand and type based on personal preferences, not health considerations, overcame any evidence that would fairly support an inference of detrimental reliance.
Id. at 1106-1107. The Court of Appeals, however, reversed the trial court's decision to grant Philip Morris' JMOL motion as erroneous. In doing so, it said,
1 Mrs. Berger died while her appeal in Cote was pending. The named plaintiff, Bernard Cote, was the personal representative of her estate. Id. at 1099 n.1.
-2-
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[i]n this case, jurors heard evidence about the tobacco industry's sustained and pervasive disinformation campaign, Mrs. Berger's exposure to ads that imparted the notion that smoking "wasn't that bad," Mrs. Berger's unawareness early on about the addictive power of nicotine, and her impression that the Surgeon General's warning was based on speculation. Additionally, Mrs. Berger testified that she made multiple unsuccessful attempts to stop smoking before her 1998 diagnosis, even resorting to nicotine gum and "waiting for some miracle" that never happened. With this evidence, any reasonable juror could have inferred that Mrs. Berger might have never started smoking or would have quit smoking earlier if she had known the true facts about the health effects and/or addictive nature of smoking. Contrary to the district court's view, we find that Mrs. Berger's testimony that peer pressure influenced her decision to start smoking and that she chose her cigarette brand and type based on personal preferences did little to rebut the reasonable inference that Philip Morris's disinformation campaign confused her understanding about the health hazards of smoking to her detriment. Even if Mrs. Berger started smoking solely as a result of peer pressure, and then subsequently chose her cigarettes based solely on personal preferences, a reasonable juror could have concluded that if she had known the whole truth about the risks of smoking, she would have quit.
Id. at 1109.
Although the claims at issue in Cote were different than the claims asserted by Plaintiff in this action, the question of "personal choice" is the same, and the relevance of the tobacco industry's alleged "sustained and pervasive disinformation campaign" is the same. See id. So long as Philip Morris contends that Mr. Laramie was legally responsible for his own smoking-related cancer and death because he chose to continue smoking despite knowing the health risks and addictive nature of cigarette smoking, then Plaintiff is entitled to introduce evidence at trial which may tend to show that Philip Morris and/or its agents concealed and/or publicly downplayed "the true facts about the health effects and/or addictive nature of smoking," which might lead a reasonable jury to infer that, "if [Mr. Laramie] had known the whole truth about the risks of smoking, [he] would have quit." Id.
- -3- ----
··------· ------. - . - . 62 . Massachusetts Appeals Court Case: 2020-P-0077 Filed: 8/3/2020 3:42 PM ..~,
For the foregoing reasons, Philip Morris' Motion in Limine #3 to Exclude Evidence Regarding Any Alleged Conspiracy (Docket Entry No. 29.0) is, once again, DENIED.
Bria~vis Associate Justice of the Superior Court Date: July 26, 2019
-4------
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\
US POSTAGE» PITNEY BOWES MICHAEL JOSEPH DONOVAN ~1.-, CLERK MAGISTRATE ...... ,...-, " SUPERIOR CIVIL COURT ~ ZIP 02108-- $ 000 800 SUFFOLK COUNTY COURTHOUSE, 12TH FLOOR 02 4~ • THREE PEMBERTON SQUARE 0000350426JUL 29 2019 BOSTON, MASSACHUSETTS 02108
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Upon consideration, this motion is DENIED. Although an appellate court may view matters differently, this Court perceives no basis for a JNOV or new trial on the record of this case. Given the extensive and comprehensive written memoranda submitted by the parties, no hearing is necessary.
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Commonwealth of Massachusetts County of Suffolk The Superior Court
CIVIL DOCKET# 1784CV02240
PAMELA LARAMIE INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF FRED LARAMIE
vs. ,- PHILLIP MORRIS USA, INC. ~-? JUDGMENT ON JURY VERDICT .-0~ This action came on for trial before the Court and a jury, Brain A. Davis, Justice, -~\C... presiding, the issues having been duly tried and the jury having rendered its verdict, 2,\)G It is ORDERED and ADJUDGED: -TS\\? · That the plaintiffs, Pamela Laramie Individually and as Personal Representative ~ of the Estate of Fred Laramie recover of the defendant, Phillip Morris USA, Inc. the iJl, amount of $21,000,000.00, with interest thereon from July 17, 2017, the date of the ~\.\\-13 complaint, as provided by law, and its costs of action. uu0 Dated at Boston, Massachusetts this 15th day of August, 2019. --L\:G'-0 uw ~ f'(1 BY: ...... :...... }~ Marga t M. Buckley J)'.:yf Assistant Clerk --~ ;. \i.\ .\' \'b ~~~t '-G~ ~ '.:b,$ 5 5~!') vt:k Wt~ JUl)GMl!ll1l"ENTERliO ON OOOKET.Al /s \ \ \a 20-\C\ __,. PURSUWl"TO Tl'IE PRO¥ISIONS OF MAS fl. O'N. l".58(a) AN.OHO~ Sli:NO 10 FWmES PURSUANT TO Tl-IE PRO o.,v vlSIONS Of MASS. A. cw. P. n(dl AS FOIJ.{)WS ___,.-/ 4544010 mot.allow muscator 71 Massachusetts Appeals Court Case: 2020-P-0077 Filed: 8/3/2020 3:42 PM
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§ 2. Wrongful death; damages, MA ST 229 § 2
Massachusetts General Laws Annotated Part III. Courts, Judicial Officers and Proceedings in Civil Cases (Ch. 211-262) Title II. Actions and Proceedings Therein (Ch. 223-236) Chapter 229. Actions for Death and Injuries Resulting in Death (Refs & Annos)
M.G.L.A. 229 § 2
§ 2. Wrongful death; damages
Currentness
A person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (3) operates a common carrier of passengers and by his negligence causes the death of a passenger, or (4) operates a common carrier of passengers and by his willful, wanton or reckless act causes the death of a passenger under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (5) is responsible for a breach of warranty arising under Article 2 of chapter one hundred and six which results in injury to a person that causes death, shall be liable in damages in the amount of: (1) the fair monetary value of the decedent to the persons entitled to receive the damages recovered, as provided in section one, including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered; (2) the reasonable funeral and burial expenses of the decedent; (3) punitive damages in an amount of not less than five thousand dollars in such case as the decedent's death was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant; except that (1) the liability of an employer to a person in his employment shall not be governed by this section, (2) a person operating a railroad shall not be liable for negligence in causing the death of a person while walking or being upon such railroad contrary to law or to the reasonable rules and regulations of the carrier and (3) a person operating a street railway or electric railroad shall not be liable for negligence for causing the death of a person while walking or being upon that part of the street railway or electric railroad not within the limits of a highway. A person shall be liable for the negligence or the willful, wanton or reckless act of his agents or servants while engaged in his business to the same extent and subject to the same limits as he would be liable under this section for his own act. Damages under this section shall be recovered in an action of tort by the executor or administrator of the deceased. An action to recover damages under this section shall be commenced within three years from the date of death, or within three years from the date when the deceased's executor or administrator knew, or in the exercise of reasonable diligence, should have known of the factual basis for a cause of action, or within such time thereafter as is provided by section four, four B, nine or ten of chapter two hundred and sixty.
Credits Added by St. 1946, c. 614, § 1. Amended by St.1947, c. 506, § 1A; St. 1949, c. 427, § 2; St. 1958, c. 238, § 1; St. 1962, c. 306, § 1; St. 1965, c. 683, § 1; St. 1967, c. 666, § 1; St. 1971, c. 801, § 1; St. 1972, c. 440, § 1; St. 1973, c. 699, § 1; St. 1973, c. 957, § 1; St. 1979, c. 164, § 1; St. 1981, c. 493, § 1; St. 1982, c. 634, § 14; St.1989, c. 215, § 1.
M.G.L.A. 229 § 2, MA ST 229 § 2 Current through Chapter 113 of the 2020 2nd Annual Session
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§ 4. Actions by attorney general; notice; venue; injunctions, MA ST 93A § 4
Massachusetts General Laws Annotated Part I. Administration of the Government (Ch. 1-182) Title XV. Regulation of Trade (Ch. 93-110h) Chapter 93A. Regulation of Business Practices for Consumers Protection (Refs & Annos)
M.G.L.A. 93A § 4
§ 4. Actions by attorney general; notice; venue; injunctions
Currentness
Whenever the attorney general has reason to believe that any person is using or is about to use any method, act, or practice declared by section two to be unlawful, and that proceedings would be in the public interest, he may bring an action in the name of the commonwealth against such person to restrain by temporary restraining order or preliminary or permanent injunction the use of such method, act or practice. The action may be brought in the superior court of the county in which such person resides or has his principal place of business, or the action may be brought in the superior court of Suffolk county with the consent of the parties or if the person has no place of business within the commonwealth. If more than one person is joined as a defendant, such action may be brought in the superior court of the county where any one defendant resides or has his principal place of business, or in Suffolk county. Said court may issue temporary restraining orders or preliminary or permanent injunctions and make such other orders or judgments as may be necessary to restore to any person who has suffered any ascertainable loss by reason of the use or employment of such unlawful method, act or practice any moneys or property, real or personal, which may have been acquired by means of such method, act, or practice. If the court finds that a person has employed any method, act or practice which he knew or should have known to be in violation of said section two, the court may require such person to pay to the commonwealth a civil penalty of not more than five thousand dollars for each such violation and also may require the said person to pay the reasonable costs of investigation and litigation of such violation, including reasonable attorneys' fees. If the court finds any method, act, or practice unlawful with regard to any security or any contract of sale of a commodity for future delivery as defined in section two, the court may issue such orders or judgments as may be necessary to restore any person who has suffered any ascertainable loss of any moneys or property, real or personal, or up to three but not less than two times that amount if the court finds that the use of the act or practice was a willful violation of said section two, a civil penalty to be paid to the commonwealth of not more than five thousand dollars for each such violation, and also may require said person to pay the reasonable costs of investigation and litigation of such violation, including reasonable attorneys fees.
At least five days prior to the commencement of any action brought under this section, except when a temporary restraining order is sought, the attorney general shall notify the person of his intended action, and give the person an opportunity to confer with the attorney general in person or by counsel or other representative as to the proposed action. Such notice shall be given the person by mail, postage prepaid, to his usual place of business, or if he has no usual place of business, to his last known address.
Any district attorney or law enforcement officer receiving notice of any alleged violation of this chapter or of any violation of an injunction or order issued in an action brought under this section shall immediately forward written notice of the same together with any information that he may have to the office of the attorney general.
Any person who violates the terms of an injunction or other order issued under this section shall forfeit and pay to the commonwealth a civil penalty of not more than ten thousand dollars for each violation. For the purposes of this section, the court issuing such an injunction or order shall retain jurisdiction, and the cause shall be continued, and in such case the attorney general acting in the name of the commonwealth may petition for recovery of such civil penalty.
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§ 4. Actions by attorney general; notice; venue; injunctions, MA ST 93A § 4
Credits Added by St.1967, c. 813, § 1. Amended by St.1969, c. 814, § 3; St.1971, c. 130; St.1972, c. 544; St.1980, c. 119; St.1985, c. 468; St.1987, c. 664, § 2.
M.G.L.A. 93A § 4, MA ST 93A § 4 Current through Chapter 113 of the 2020 2nd Annual Session
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§ 9. Civil actions and remedies; class action; demand for relief;..., MA ST 93A § 9
Massachusetts General Laws Annotated Part I. Administration of the Government (Ch. 1-182) Title XV. Regulation of Trade (Ch. 93-110h) Chapter 93A. Regulation of Business Practices for Consumers Protection (Refs & Annos)
M.G.L.A. 93A § 9
§ 9. Civil actions and remedies; class action; demand for relief; damages; costs; exhausting administrative remedies
Effective: August 9, 2004 Currentness
(1) Any person, other than a person entitled to bring action under section eleven of this chapter, who has been injured by another person's use or employment of any method, act or practice declared to be unlawful by section two or any rule or regulation issued thereunder or any person whose rights are affected by another person violating the provisions of clause (9) of section three of chapter one hundred and seventy-six D may bring an action in the superior court, or in the housing court as provided in section three of chapter one hundred and eighty-five C whether by way of original complaint, counterclaim, cross-claim or third party action, for damages and such equitable relief, including an injunction, as the court deems to be necessary and proper.
(2) Any persons entitled to bring such action may, if the use or employment of the unfair or deceptive act or practice has caused similar injury to numerous other persons similarly situated and if the court finds in a preliminary hearing that he adequately and fairly represents such other persons, bring the action on behalf of himself and such other similarly injured and situated persons; the court shall require that notice of such action be given to unnamed petitioners in the most effective practicable manner. Such action shall not be dismissed, settled or compromised without the approval of the court, and notice of any proposed dismissal, settlement or compromise shall be given to all members of the class of petitioners in such manner as the court directs.
(3) At least thirty days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent. Any person receiving such a demand for relief who, within thirty days of the mailing or delivery of the demand for relief, makes a written tender of settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning its rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner. In all other cases, if the court finds for the petitioner, recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater; or up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section two or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated said section two. For the purposes of this chapter, the amount of actual damages to be multiplied by the court shall be the amount of the judgment on all claims arising out of the same and underlying transaction or occurrence, regardless of the existence or nonexistence of insurance coverage available in payment of the claim. In addition, the court shall award such other equitable relief, including an injunction, as it deems to be necessary and proper. The demand requirements of this paragraph shall not apply if the claim is asserted by way of counterclaim or cross-claim, or if the prospective respondent does not maintain a place of business or does not keep assets within the commonwealth, but such respondent may otherwise employ the provisions of this section by making a written offer of relief and paying the rejected tender into court as soon as practicable after receiving notice of an action commenced under this section. Notwithstanding any other provision to the contrary, if the court finds any method, act or practice unlawful with
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§ 9. Civil actions and remedies; class action; demand for relief;..., MA ST 93A § 9 regard to any security or any contract of sale of a commodity for future delivery as defined in section two, and if the court finds for the petitioner, recovery shall be in the amount of actual damages.
(3A) A person may assert a claim under this section in a district court, whether by way of original complaint, counterclaim, cross-claim or third-party action, for money damages only. Said damages may include double or treble damages, attorneys' fees and costs, as herein provided. The demand requirements and provision for tender of offer of settlement provided in paragraph (3) shall also be applicable under this paragraph, except that no rights to equitable relief shall be created under this paragraph, nor shall a person asserting a claim hereunder be able to assert any claim on behalf of other similarly injured and situated persons as provided in paragraph (2).
(4) If the court finds in any action commenced hereunder that there has been a violation of section two, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney's fees and costs incurred in connection with said action; provided, however, the court shall deny recovery of attorney's fees and costs which are incurred after the rejection of a reasonable written offer of settlement made within thirty days of the mailing or delivery of the written demand for relief required by this section.
<[ There is no paragraph (5).]>
(6) Any person entitled to bring an action under this section shall not be required to initiate, pursue or exhaust any remedy established by any regulation, administrative procedure, local, state or federal law or statute or the common law in order to bring an action under this section or to obtain injunctive relief or recover damages or attorney's fees or costs or other relief as provided in this section. Failure to exhaust administrative remedies shall not be a defense to any proceeding under this section, except as provided in paragraph seven.
(7) The court may upon motion by the respondent before the time for answering and after a hearing suspend proceedings brought under this section to permit the respondent to initiate action in which the petitioner shall be named a party before any appropriate regulatory board or officer providing adjudicatory hearings to complainants if the respondent's evidence indicates that:
(a) there is a substantial likelihood that final action by the court favorable to the petitioner would require of the respondent conduct or practices that would disrupt or be inconsistent with a regulatory scheme that regulates or covers the actions or transactions complained of by the petitioner established and administered under law by any state or federal regulatory board or officer acting under statutory authority of the commonwealth or of the United States; or
(b) that said regulatory board or officer has a substantial interest in reviewing said transactions or actions prior to judicial action under this chapter and that the said regulatory board or officer has the power to provide substantially the relief sought by the petitioner and the class, if any, which the petitioner represents, under this section.
Upon suspending proceedings under this section the court may enter any interlocutory or temporary orders it deems necessary and proper pending final action by the regulatory board or officer and trial, if any, in the court, including issuance of injunctions, certification of a class, and orders concerning the presentation of the matter to the regulatory board or officer. The court shall issue appropriate interlocutory orders, decrees and injunctions to preserve the status quo between the parties pending final action by the regulatory board or officer and trial and shall stay all proceedings in any court or before any regulatory board or officer in which petitioner and respondent are necessarily involved. The court may issue further orders, injunctions or other relief while the matter is before the regulatory board or officer and shall terminate the suspension and bring the matter forward for trial if it finds (a) that proceedings before the regulatory board or officer are unreasonably delayed or otherwise unreasonably prejudicial
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§ 9. Civil actions and remedies; class action; demand for relief;..., MA ST 93A § 9 to the interests of a party before the court, or (b) that the regulatory board or officer has not taken final action within six months of the beginning of the order suspending proceedings under this chapter.
(8) Except as provided in section ten, recovering or failing to recover an award of damages or other relief in any administrative or judicial proceeding, except proceedings authorized by this section, by any person entitled to bring an action under this section, shall not constitute a bar to, or limitation upon relief authorized by this section.
Credits Added by St.1969, c. 690. Amended by St.1970, c. 736, §§ 1, 2; St.1971, c. 241; St.1973, c. 939; St.1978, c. 478, §§ 45, 46; St.1979, c. 72, § 1; St.1979, c. 406, §§ 1, 2; St.1986, c. 557, § 90; St.1987, c. 664, § 3; St.1989, c. 580, § 1; St.2004, c. 252, § 1, eff. Aug. 9, 2004.
M.G.L.A. 93A § 9, MA ST 93A § 9 Current through Chapter 113 of the 2020 2nd Annual Session
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§ 1333. Labeling, 15 USCA § 1333
United States Code Annotated Title 15. Commerce and Trade Chapter 36. Cigarette Labeling and Advertising (Refs & Annos)
15 U.S.C.A. § 1333
§ 1333. Labeling
Effective: September 22, 2012 Currentness
(a) Label requirements
(1) In general
It shall be unlawful for any person to manufacture, package, sell, offer to sell, distribute, or import for sale or distribution within the United States any cigarettes the package of which fails to bear, in accordance with the requirements of this section, one of the following labels:
WARNING: Cigarettes are addictive.
WARNING: Tobacco smoke can harm your children.
WARNING: Cigarettes cause fatal lung disease.
WARNING: Cigarettes cause cancer.
WARNING: Cigarettes cause strokes and heart disease.
WARNING: Smoking during pregnancy can harm your baby.
WARNING: Smoking can kill you.
WARNING: Tobacco smoke causes fatal lung disease in nonsmokers.
WARNING: Quitting smoking now greatly reduces serious risks to your health.
(2) Placement; typography; etc.
Each label statement required by paragraph (1) shall be located in the upper portion of the front and rear panels of the package, directly on the package underneath the cellophane or other clear wrapping. Each label statement shall comprise the top 50 percent of the front and rear panels of the package. The word “WARNING” shall appear in capital letters and all text shall be in conspicuous and legible 17-point type, unless the text of the label statement would occupy more than 70 percent of such area, in which case the text may be in a smaller conspicuous and legible type size, provided that at least 60 percent of such area is occupied by required text. The text shall be black on a white background, or white on a black background,
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§ 1333. Labeling, 15 USCA § 1333
in a manner that contrasts, by typography, layout, or color, with all other printed material on the package, in an alternating fashion under the plan submitted under subsection (c).
(3) Does not apply to foreign distribution
The provisions of this subsection do not apply to a tobacco product manufacturer or distributor of cigarettes which does not manufacture, package, or import cigarettes for sale or distribution within the United States.
(4) Applicability to retailers
A retailer of cigarettes shall not be in violation of this subsection for packaging that--
(A) contains a warning label;
(B) is supplied to the retailer by a license- or permit-holding tobacco product manufacturer, importer, or distributor; and
(C) is not altered by the retailer in a way that is material to the requirements of this subsection.
(b) Advertising requirements
(1) In general
It shall be unlawful for any tobacco product manufacturer, importer, distributor, or retailer of cigarettes to advertise or cause to be advertised within the United States any cigarette unless its advertising bears, in accordance with the requirements of this section, one of the labels specified in subsection (a).
(2) Typography, etc.
Each label statement required by subsection (a) in cigarette advertising shall comply with the standards set forth in this paragraph. For press and poster advertisements, each such statement and (where applicable) any required statement relating to tar, nicotine, or other constituent (including a smoke constituent) yield shall comprise at least 20 percent of the area of the advertisement and shall appear in a conspicuous and prominent format and location at the top of each advertisement within the trim area. The Secretary may revise the required type sizes in such area in such manner as the Secretary determines appropriate. The word “WARNING” shall appear in capital letters, and each label statement shall appear in conspicuous and legible type. The text of the label statement shall be black if the background is white and white if the background is black, under the plan submitted under subsection (c). The label statements shall be enclosed by a rectangular border that is the same color as the letters of the statements and that is the width of the first downstroke of the capital “W” of the word “WARNING” in the label statements. The text of such label statements shall be in a typeface pro rata to the following requirements: 45-point type for a whole-page broadsheet newspaper advertisement; 39-point type for a half-page broadsheet newspaper advertisement; 39- point type for a whole-page tabloid newspaper advertisement; 27-point type for a half-page tabloid newspaper advertisement; 31.5-point type for a double page spread magazine or whole-page magazine advertisement; 22.5-point type for a 28 centimeter by 3 column advertisement; and 15-point type for a 20 centimeter by 2 column advertisement. The label statements shall be in English, except that--
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§ 1333. Labeling, 15 USCA § 1333
(A) in the case of an advertisement that appears in a newspaper, magazine, periodical, or other publication that is not in English, the statements shall appear in the predominant language of the publication; and
(B) in the case of any other advertisement that is not in English, the statements shall appear in the same language as that principally used in the advertisement.
(3) Matchbooks
Notwithstanding paragraph (2), for matchbooks (defined as containing not more than 20 matches) customarily given away with the purchase of tobacco products, each label statement required by subsection (a) may be printed on the inside cover of the matchbook.
(4) Adjustment by Secretary
The Secretary may, through a rulemaking under section 553 of Title 5, adjust the format and type sizes for the label statements required by this section; the text, format, and type sizes of any required tar, nicotine yield, or other constituent (including smoke constituent) disclosures; or the text, format, and type sizes for any other disclosures required under the Federal Food, Drug, and Cosmetic Act. The text of any such label statements or disclosures shall be required to appear only within the 20 percent area of cigarette advertisements provided by paragraph (2). The Secretary shall promulgate regulations which provide for adjustments in the format and type sizes of any text required to appear in such area to ensure that the total text required to appear by law will fit within such area.
(c) Marketing requirements
(1) Random display
The label statements specified in subsection (a)(1) shall be randomly displayed in each 12-month period, in as equal a number of times as is possible on each brand of the product and be randomly distributed in all areas of the United States in which the product is marketed in accordance with a plan submitted by the tobacco product manufacturer, importer, distributor, or retailer and approved by the Secretary.
(2) Rotation
The label statements specified in subsection (a)(1) shall be rotated quarterly in alternating sequence in advertisements for each brand of cigarettes in accordance with a plan submitted by the tobacco product manufacturer, importer, distributor, or retailer to, and approved by, the Secretary.
(3) Review
The Secretary shall review each plan submitted under paragraph (2) and approve it if the plan--
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§ 1333. Labeling, 15 USCA § 1333
(A) will provide for the equal distribution and display on packaging and the rotation required in advertising under this subsection; and
(B) assures that all of the labels required under this section will be displayed by the tobacco product manufacturer, importer, distributor, or retailer at the same time.
(4) Applicability to retailers
This subsection and subsection (b) apply to a retailer only if that retailer is responsible for or directs the label statements required under this section except that this paragraph shall not relieve a retailer of liability if the retailer displays, in a location open to the public, an advertisement that does not contain a warning label or has been altered by the retailer in a way that is material to the requirements of this subsection and subsection (b).
(d) 1 Graphic label statements
Not later than 24 months after June 22, 2009, the Secretary shall issue regulations that require color graphics depicting the negative health consequences of smoking to accompany the label statements specified in subsection (a)(1). The Secretary may adjust the type size, text and format of the label statements specified in subsections (a)(2) and (b)(2) as the Secretary determines appropriate so that both the graphics and the accompanying label statements are clear, conspicuous, legible and appear within the specified area.
(d) 1 Change in required statements
The Secretary through a rulemaking conducted under section 553 of Title 5 may adjust the format, type size, color graphics, and text of any of the label requirements, or establish the format, type size, and text of any other disclosures required under the Federal Food, Drug, and Cosmetic Act, if the Secretary finds that such a change would promote greater public understanding of the risks associated with the use of tobacco products.
(e) Tar, nicotine, and other smoke constituent disclosure
(1) In general
The Secretary shall, by a rulemaking conducted under section 553 of Title 5, determine (in the Secretary's sole discretion) whether cigarette and other tobacco product manufacturers shall be required to include in the area of each cigarette advertisement specified by subsection (b) of this section, or on the package label, or both, the tar and nicotine yields of the advertised or packaged brand. Any such disclosure shall be in accordance with the methodology established under such regulations, shall conform to the type size requirements of subsection (b) of this section, and shall appear within the area specified in subsection (b) of this section.
(2) Resolution of differences
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§ 1333. Labeling, 15 USCA § 1333
Any differences between the requirements established by the Secretary under paragraph (1) and tar and nicotine yield reporting requirements established by the Federal Trade Commission shall be resolved by a memorandum of understanding between the Secretary and the Federal Trade Commission.
(3) Cigarette and other tobacco product constituents
In addition to the disclosures required by paragraph (1), the Secretary may, under a rulemaking conducted under section 553 of Title 5, prescribe disclosure requirements regarding the level of any cigarette or other tobacco product constituent including any smoke constituent. Any such disclosure may be required if the Secretary determines that disclosure would be of benefit to the public health, or otherwise would increase consumer awareness of the health consequences of the use of tobacco products, except that no such prescribed disclosure shall be required on the face of any cigarette package or advertisement. Nothing in this section shall prohibit the Secretary from requiring such prescribed disclosure through a cigarette or other tobacco product package or advertisement insert, or by any other means under the Federal Food, Drug, and Cosmetic Act.
(4) Retailers
This subsection applies to a retailer only if that retailer is responsible for or directs the label statements required under this section.
CREDIT(S)
(Pub.L. 89-92, § 4, July 27, 1965, 79 Stat. 283; Pub.L. 91-222, § 2, Apr. 1, 1970, 84 Stat. 88; Pub.L. 98-474, § 4(a), Oct. 12, 1984, 98 Stat. 2201; Pub.L. 99-92, § 11[(a)], Aug. 16, 1985, 99 Stat. 402; Pub.L. 99-117, § 11(d), Oct. 7, 1985, 99 Stat. 495; Pub.L. 111-31, Div. A, Title II, §§ 201(a), 202(b), 206, June 22, 2009, 123 Stat. 1842, 1845, 1849.)
Footnotes
1 So in original. There are two subsections designated (d). 15 U.S.C.A. § 1333, 15 USCA § 1333 Current through P.L. 116-149.
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§ 1334. Preemption, 15 USCA § 1334
United States Code Annotated Title 15. Commerce and Trade Chapter 36. Cigarette Labeling and Advertising (Refs & Annos)
15 U.S.C.A. § 1334
§ 1334. Preemption
Effective: June 22, 2009 Currentness
(a) Additional statements
Except to the extent the Secretary requires additional or different statements on any cigarette package by a regulation, by an order, by a standard, by an authorization to market a product, or by a condition of marketing a product, pursuant to the Family Smoking Prevention and Tobacco Control Act (and the amendments made by that Act), or as required under section 387c(a) (2) of Title 21 or section 387t(a) of Title 21, no statement relating to smoking and health, other than the statement required by section 1333 of this title, shall be required on any cigarette package.
(b) State regulations
No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.
(c) Exception
Notwithstanding subsection (b), a State or locality may enact statutes and promulgate regulations, based on smoking and health, that take effect after the effective date of the Family Smoking Prevention and Tobacco Control Act, imposing specific bans or restrictions on the time, place, and manner, but not content, of the advertising or promotion of any cigarettes.
CREDIT(S)
(Pub.L. 89-92, § 5, July 27, 1965, 79 Stat. 283; Pub.L. 91-222, § 2, Apr. 1, 1970, 84 Stat. 88; Pub.L. 111-31, Div. A, Title II, §§ 202(a), 203, June 22, 2009, 123 Stat. 1845, 1846.)
15 U.S.C.A. § 1334, 15 USCA § 1334 Current through P.L. 116-149.
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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the rules of court that pertain to the filing of briefs, including, but not limited to: Rule 16(a)(13) (addendum); Rule
16(e) (references to the record); Rule 18 (appendix to the briefs); and Rule 20
(form and length of briefs, appendices, and other documents).
I hereby certify that this brief complies with the type-volume limit of Rule
20(a)(A) because, excluding the parts of the document exempted by Rule
20(a)(2)(D), this document contains 10,987 words.
This brief complies with the typeface and type style requirements of Rule
20(a)(4)(B) because it was prepared in a proportionally spaced typeface using
Microsoft Word 2016 in 14-point Times New Roman.
Dated: July 27, 2020 /s/ Scott A. Chesin Attorney for Defendant-Appellant Philip Morris USA Inc.
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CERTIFICATE OF SERVICE Pursuant to Rule 13(e), I hereby certify that on July 27, 2020, on behalf of
Defendant-Appellant Philip Morris USA Inc., I served via electronic mail a copy of the foregoing Brief For Appellant in the matter of Laramie v. Philip Morris USA
Inc., No 2020-P-0077, pending before the Commonwealth of Massachusetts
Appeals Court, on the following:
Thomas R. Murphy Law Offices of Thomas R. Murphy, LLC Counsel of Record for Plaintiff-Appellee, Pamela Laramie 133 Washington Street 2nd Floor Salem, MA 01970 [email protected] /s/ Scott A. Chesin Scott A. Chesin (BBO # 653907) MAYER BROWN LLP 1221 Avenue of the Americas New York, NY 10020 (212) 506-2274 [email protected]
91