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Date: 08-03-2007
Case Style: Lincoln Smith, et al. v. Brown & Williamson Tobacco Corporation
Case Number: WD65542
Judge: Robert G. Ulrich
Court: Missouri Court of Appeals Western District on appeal from the Circuit Court of Platte County
Plaintiff's Attorney:
Kenneth B. McClain and Gregory A. Leyh of Humphrey, Farrington & McClain, P.C., Independence, Missouri
Defendant's Attorney:
Robert H. Klonoff and Casey O. Housley, Kansas City, Missouri
Description:
Brown & Williamson Tobacco Corporation (B&W) appeals the judgment entered in favor of the survivors of Barbara Smith and against B&W under Missouri's wrongful death statute for claims of personal injury based on negligence and product defect. Section 537.080.(FN1) B&W presents ten points on appeal. B&W asserts in its first five points and ninth point that the trial court erred in denying its motion for judgment notwithstanding the verdict for various reasons. B&W asserts in its sixth point that the trial court erred in instructing the jury on comparative fault after B&W withdrew the affirmative defense. B&W asserts in its seventh and eighth points that the trial court erred in denying its motion for a new trial on punitive damages. Finally, B&W asserts in its tenth point that the trial court erred in denying its motion for judgment notwithstanding the verdict, its motion for new trial, and its request for remittitur on punitive damages. The judgment is affirmed in part, reversed in part, and the case is remanded.
Facts
This case involves a wrongful death action brought by the survivors of a deceased longtime smoker against a tobacco company. Section 537.080. In the light most favorable to the jury verdict, the facts are as follows. Barbara Smith was born on May 13, 1927. She began smoking Lucky Strike cigarettes in 1942. After smoking Lucky Strikes for one to two years Ms. Smith switched to Kool cigarettes, manufactured by B&W.
In January 1964, the Surgeon General of the United States issued his first report on smoking and health. The report concluded that smoking causes fatal diseases, including cancer. The report also advised the public that the best way to reduce the risk of death and diseases associated with smoking is to quit smoking. Congress enacted the Federal Cigarette Labeling and Advertising Act (FCLAA) in 1965. The FCLAA required every package of cigarettes to bear the warning: "Caution: Cigarette Smoking May Be Hazardous To Your Health." The warning was modified in 1969 to read: "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous To Your Health." The warning was changed again in 1985 to a system of four rotating warnings, including: "Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy" and "Quitting Smoking Now Greatly Reduces Serious Health Risks."
Ms. Smith developed angina in the early 1980s.(FN2) In 1990, a physician informed Ms. Smith that she had "respiratory trouble" that was the beginning stage of emphysema. The same doctor told Ms. Smith that she was "going to have to quit smoking because it was going to kill her if she didn't." She quit smoking that year. Ms. Smith was diagnosed with lung cancer in 1992. Part of one lung was removed, and Ms. Smith was apparently cancer free thereafter.
Ms. Smith brought suit against B&W in Jackson County, and the case was transferred to the United States District Court, Western District of Missouri, in 1996. B&W was granted summary judgment as to certain of her negligence and strict liability claims. On May 12, 2000, Ms. Smith died from a heart attack at age 73. After her death, all remaining claims in federal court were dismissed with prejudice.
In March 2003, the survivors of Barbara Smith, her husband Lincoln Smith(FN3) and their children, brought suit against B&W in Jackson County under the Missouri Wrongful Death Act (section 537.080) to recover damages for her death, which resulted from heart disease. The petition alleged claims for negligence, strict liability, fraudulent concealment, and conspiracy.
B&W plead comparative fault as an affirmative defense and performed discovery regarding Ms. Smith's fault. After completion of discovery, B&W withdrew its comparative fault affirmative defense. At trial, B&W protested the jury's receiving a comparative fault instruction. Over B&W's objection, the court gave the jury a comparative fault instruction.
Trial was had in January 2005.(FN4) The jury returned a verdict for B&W on the fraudulent concealment and conspiracy claims. It returned a verdict for Ms. Smith's survivors on the negligence and strict liability claims, awarding $2 million in compensatory damages. The jury further found that Ms. Smith was 75% at fault; accordingly, the trial court reduced the compensatory damages to $500,000. The jury also found that B&W was liable for "aggravating circumstances" and assessed $20 million in punitive damages. B&W's timely appeal followed.
* * *
Outcome: B&W's first six points are denied. Its ninth point is granted. B&W's seventh, eighth, and tenth point are not reached given the disposition of Point IX. The judgment is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this opinion.(FN128)
Plaintiff's Experts: Unknown
Defendant's Experts: Unknown
Comments: None