Eiser v. Brown & Williamson Tobacco Corp.
(Personal Injury, PA Sup. Ct.1999 On Appeal) Citation: 2006 WL 933394 (Pa.Super. 19 Jan 2006); 589 Pa. 356, 909 A.2d 297 (22 Sept. 2006)This individual personal injury suit was filed by William M. and Lois Eiser against Brown & Williamson, American Tobacco Co., American Brands, British American Tobacco, Council for Tobacco Research, Fortune Brands, Jetro Cash & Cary, Joseph Gatta & Sons, Tobacco Institute, and Pennsylvania Distributors Association on March 30, 1999. After William died in December, 1999, Lois continued the suit individually and as administratrix of her husband's estate.
The plaintiffs alleged that smoking Carlton (Brown & Williamson) cigarettes resulted in William Eiser's lung cancer and eventual death. He smoked from 1959 until 1998 when he was diagnosed. From 1973 on he smoked exclusively Carltons. The plaintiff claimed fraud, negligent misrepresentation, strict liability, breach of express and implied warranty, design defect, failure to warn (withdrawn), civil conspiracy, concert of action, violation of consumer protection laws and loss of consortium.
The case was heard in the Court of Common Pleas, Philadelphia County, Pennsylvania (No. 4367). The defendants attempted to remove the case to the United States District Court in May, 1999, but the court remanded it back to state courts. The judge issued summary judgement on December 30, 2002 for Jetro Cash & Cary and Joseph Gatta & Sons, and Pennsylvania Distributors Association, as well as for Council for Tobacco Researchon certain claims. The judge granted a directed verdict on breach of warranty claims before March 31, 1995 against Brown & Williamson. The trial began August 5, 2003. August 7, 2003, BATUS Holdings, Fortune Brands, the Tbacco Institute and the Council for Tobacco Research were all nonsuited because the plaintiffs failed to link them to the production of Carton cigarettes. The jury returned a verdict for the defense on August 21, 2003.
The Superior Court of Pennsylvania (2006 WL 933394) affirmed the verdict on January 19, 2006. The court held that the compulsory nonsuit regarding the plaintiffs' negligent representation, strict liability, breach of warranty and concert of action claims was warranted. The plaintiffs failed to show reliance and causation as well as the wrongdoer the defendant conspired with. The court found that the exclusion of the plaintiffs' expert and fact witness testimony was also warranted because the excluded testimony spoke to the ultimate issue in the case, a question reserved for the jury; or the testimony would be irrelevant to the issues of the case; or would be prejudicial to the defendant.
The Supreme Court of Pennsylvania (589 Pa. 356) granted an appeal on September 22, 2006. Briefing is underway.