Cigarette Makers Lose Appeal of $1 Million Verdict

A Missouri appeals court has affirmed a $1 million damages award against Brown & Williamson Tobacco Corp. and Philip Morris USA Inc. in a lawsuit alleging the companies' cigarettes are defectively designed.

The Missouri Court of Appeals' Western District upheld the award in favor of plaintiff Michael Thompson, rejecting the cigarette makers' argument that the plaintiff had to submit a feasible alternative design in order to prevail in the case.

Thompson sued the tobacco giants in the Jackson County Circuit Court in 2000, seeking damages for the defendants' alleged failure to warn of the hazards of smoking.

He also claimed the cigarettes were defective and negligently designed. In an amended complaint, Thompson's wife added a count for loss of consortium.

Thompson started smoking Philip Morris' Marlboro-brand cigarettes in 1963 at 13, according to the lawsuit. He later switched to Brown & Williamson's cheaper GPC brand in 1992, the suit says.

Thompson underwent four surgeries and radiation therapy for throat cancer in 1997, according to the complaint.

The jury found in favor of the plaintiffs and ordered the companies to pay nearly $1 million in damages even after finding that Thompson was 50 percent at fault.

The trial court denied the defendants' motion for judgment notwithstanding the verdict, and they appealed.

The defendants asserted that Thompson's claims of strict products liability and negligent design failed because he did not submit evidence that a feasible alternative design may have prevented the injuries.

The companies also maintained that they had no duty to warn because smoking's health risks were "open, obvious and apparent" in 1963 and onward. The trial court should have taken judicial notice of this fact rather than submitting it to the jury, the defendants said.

They also argued that the loss-of-consortium claim was time-barred.

The appellate court panel rejected all of these arguments.

The panel ruled that the plaintiff was not obligated to submit a feasible alternative cigarette design that would have prevented his injury, explaining that the defendants "misstate the law in Missouri as to strict tort liability and cite no Missouri authority that alternative design is a requirement in a negligence claim."

The panel noted that the state Supreme Court has consistently rejected this requirement.

Rejecting the defendants' arguments regarding the failure-to-warn claim, the panel found persuasive evidence suggesting that the addictive and carcinogenic nature of cigarettes was not well-known even years after 1963.

Even the defense's expert, St. Louis University history professor Donald Critchlow, acknowledged that 60 percent of teenagers in 1979 believed that experimenting with cigarettes was acceptable as long as smoking did not become a habit, the appeals court said.

Critchlow also testified that in 1986 one in four smokers was "not at all concerned" with the health risks of smoking, the appeals court said.

The panel also found the loss-of-consortium claim timely, noting that the claim related back to the date of the lawsuit's original filing, which was within the state's five-year limitations period.