Boerner v. Brown & Williamson Tobacco Corp.(Personal Injury US 8th Cir Ct of App 1998 Pltf Paid) Citation: 126 F.Supp.2d 1160 (E.D.Ark. 7 Oct 1999); 121 F.Supp.2d 1252 (E.D.Ark. 25 Feb 2000); 260 F.3d 837 (8th Cir. 6 Aug 2001); 2003 WL 22341294 (E.D.Ark. 27 Aug 2003 staying execution of judgment pending appeal); 2003 WL 22341283 (E.D.Ark. 2 Jul 2003); 2003 WL 22469899 (E.D.Ark. 25 Sep 2003 reinstating punitive damages); 394 F.3d 594 (7 Jan 2005)
This individual personal injury suit was filed by Henry W. Boerner as administrator of the estate of Mary Jane Boerner against Brown & Williamson, as successor of American Tobacco, on June 19, 1998.
The plaintiff alleged that smoking cigarettes resulted in Mary Jane Boerner's development of lung cancer and eventual death. She smoked Lucky Strike and Pall Mall cigarettes between 1945 and 1981. She was diagnosed with lung cancer and emphysema in 1996. She died on August 26, 1999. The plaintiffs alleged that she was addicted to cigarettes by 1948. The plaintiff claimed design defect, failure to warn, violation of a voluntarily undertaken duty, fraud, conspiracy, wrongful death and loss of consortium. The plaintiffs sought compensatory and punitive damages.
The case was heard in the United States District Court for the Eastern District of Arkansas, Western Division by the Honorable James M. Moody. The judge (126 F.Supp.2d 1160) granted a partial summary judgment for the defendant on October 7, 1999, regarding the post-1969 failure to warn claims, as well as fraud and deceit, conspiracy and negligent misrepresentation. He held that common knowledge was not a defense under strict liability, nor did it prevent a negligence claim. Fact issues precluded summary judgment on failure to warn claims and design defect claims. The plaintiff did not provide sufficient evidence of reliance to support fraud claims. The Federal Cigarette Labeling and Advertising Act preempts post-1969 claims based on the defendant's advertising and promotions.
On February 25, 2000, the judge (121 F.Supp.2d 1252) granted another summary judgment for the defendant. He held that the defendant had rebutted the presumption that the plaintiff would have read and heeded adequate warnings. He also found that the plaintiff failed to establish a claim for defective design because there was no evidence of a safe alternative design that Mrs. Boerner would have used. The plaintiff appealed.
The United States Circuit Court for the Eighth Circuit (260 F.3d 837), affirmed in part and reversed in part, remanding the design defect and pre-1969 failure to warn claims for trial on August 6, 2001. It ruled that claims of inadequate warnings after 1969 were preempted by the Federal Cigarette Labeling and Advertising Act, but that inadequate warnings claims before 1969 were not preempted. The plaintiff had to show that the inadequate warnings were a proximate cause of the injury in spite of a presumption that any adequate warning would have been read and heeded. That presumption merely shifts the burden of presenting evidence to the defendant. The evidence presented did not allow for a summary judgment in either direction. Issues of material fact regarding pre-1966 inadequate warnings and design defect claims prevented summary judgment on those claims. A design claim can continue even absent evidence of a safer alternative. The court held that the defendant did not owe the public a duty to research and provide information on smoking and health or addiction.
The jury returned a verdict for the plaintiff on May 23, 2003 consisting of $4,025,000 in compensatory damages and $15 million in punitive damages. It found that Pall Mall's defective condition proximately caused Mrs. Boerner's illness and death. It found for the defendant regarding the failure to warn claim. The judge (2003 WL 22341283 (E.D.Ark.)) upheld the verdict on the defective design claim and revoked the punitive damage award on July 2, 2003. He found that the defendants could not be held liable for punitive damages as a successor. However, he reinstated the punitive damage award (2003 WL 22469899 (E.D.Ark.)) on September 25, 2003. The defendant appealed.
The United States Court of Appeals for the Eight Circuit (394 F.3d 594) affirmed the judgment on January 7, 2005. The court held there was sufficient evidence to support a claim of design defect. Evidence was provided at trial specific to the high level of carcinogens in Pall Mall cigarettes. It held that the Federal Cigarette Labeling and Advertising Act did not preempt the design defect claim. The language of the act is clear that it intends only to preempt state clames based on advertising or promoting cigarettes. The court reduced the punitive damage award from $15 million to $5 million. There was sufficient evidence for a jury to find conscious disregard for the safety of others. Brown & Williamson was the appropriate party to pay such damages as successor in interest to American Tobacco. Given the large compensatory award, the court found the nearly 1:1 ratio appropriate and in keeping with Due Process.
The plaintiff was paid $9 million.
SynonymsBoerner v. Brown & Williamson
Boerner v. Brown & Williamson To