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Warshafsky v. R.J. Reynolds Tobacco Co.

Superior Court of Massachusetts

December 16, 2018

Timothy WARSHAFSKY, Personal Representative of the Estate of Cheryl Harris
R.J. REYNOLDS TOBACCO COMPANY, As Successor by Merger to Lorillard Tobacco Company et al.

          File Date: December 18, 2018


          Mitchell H. Kaplan, Justice

         The plaintiff, Timothy Warshaysky, in his capacity as personal representative of the estate of Cheryl Harris, has brought this action against the defendants, R.J. Reynolds Tobacco Company, as successor by merger to Lorillard Tobacco Company (collectively, RJR), and Cumberland Farms, Inc. The plaintiff alleges that Ms. Harris suffered personal injuries and eventually a wrongful death as a result of smoking Newport and Winston cigarettes that were manufactured and distributed by RJR. The plaintiff’s third amended complaint (the complaint) is pled in four counts: Count I-breach of warranty;[1] Count II-negligence; Count III-a violation of G.L.c. 93A and Count IV-civil conspiracy. The defendants have moved for partial summary judgment dismissing: Counts III and IV in their entirety; all claims asserted against Cumberland Farms; and so much of Counts I and II as assert claims based on a failure to warn smokers of the risks associated with smoking cigarettes. In his opposition to the defendants’ motion, the plaintiff pointed out that none of his claims were based upon a violation of a duty to warn. In consequence, at oral argument on this motion, the court concluded that it need not address that part of the defendants’ motion. It then denied the balance of the motion for partial summary judgment, explaining its reasons for its ruling on the record. This memorandum will summarize the court’s rationale for its ruling, as the court believes this may be useful to the parties as they prepare for the trial of this action.


         The following facts are taken from the pleadings and summary judgment record viewed in the light most favorable to the plaintiff. The court recites only those facts necessary to the resolution of the motion for partial summary judgment.

         Ms. Harris began smoking RJR’s cigarettes in 1963 when she was 13 years old and handed free samples by representatives of RJR. She quickly became addicted and then continued to smoke Newport and Winston cigarettes at the rate of 2 packs a day for decades. Although her father died of lung cancer in 1974, she did not appreciate the health risks of cancer until her son was born with asthma in 1981. Although she tried to quit smoking several times, she was unable to do so. She was diagnosed with cancer in April 2016, and nonetheless continued to smoke. She died from that disease.

         RJR, individually, and in concert with Lorillard and other tobacco companies, engaged in conduct which affirmatively misled the public concerning the known causal link between smoking and disease and this deception continued through the 1980s and 1990s.

         Certain allegations asserted by RJR in defense of plaintiff’s claims are also pertinent to the court’s consideration of the pending motion. RJR contends that it will prove at trial, through expert testimony, that Ms. Harris was not addicted to cigarettes.


         In Evans v. Lorillard, 465 Mass. 411 (2013) (Evans), the Supreme Judicial Court (SJC) reviewed a verdict entered in favor of the plaintiff following a jury trial on claims similar to some of those asserted in this case. In Evans, the plaintiff alleged that his decedent (Marie) began smoking in 1960 at the age of thirteen when she was handed free samples of Newport cigarettes. She soon thereafter became addicted to cigarettes, contracted lung cancer, and died from that disease. The following principles of law established in Evans appear relevant, or potentially relevant, to issues raised in the present case.

         a. Design Defect

         In its opinion, the SJC reviewed the jury’s verdict that Lorillard breached the implied warranty of merchantability. See G.L.c. 106, § 2-314(2)(c). In particular, the SJC expressly adopted Restatement (Third) of Torts: Product Liability § 2(b) which states, in relevant part, "[a] product is ... defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design ... and the omission of the alternative design renders the product not reasonably safe." It quoted with approval comment f to that section: "In determining whether the alternative design was practicable, a trier of fact may consider whether the alternative design is in actual use and whether it is common practice in the industry, but if expert testimony establishes that a reasonable alternative design could practically have been adopted, a trier of fact may conclude that the product was defective notwithstanding that such a design was not adopted by any manufacturer, or even considered for commercial use, at the time of sale." Id. at 424-25. (Internal quotations omitted.)

         The SJC then found that the plaintiff had

presented evidence at trial that cigarettes are a highly engineered product, that the defendant manipulated its product to give the smoker a particular dose of tar and nicotine, that an addictive level of nicotine was approximately 0.4 to 0.5 milligrams of nicotine per cigarette, and that Lorillard never sold a cigarette with nicotine levels at or below 0.4 milligrams per cigarette ... The plaintiff proposed as a reasonable alternative a cigarette without menthol where the carcinogens in the tar are at a level that was relatively ...

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