Green v. American Tobacco Co.
(Personal Injury US Dist Ct S FL 1957 Def. Verdict) Citation: 304 F2d 70 (CA 5, Fla, 2 May 1962); 154 So 2d 169 (Fla, 5 June 1953); 325 F2d 673 (CA 5, Fla, 11 Dec 1963); 377 US 943 (25 May 1964); 391 F2d 97 (CA 5, Fla, 24 Jan 1968); 409 F2d 1166 (CA 5, Fla, 8 April 1969); 397 US 911 (24 Feb 1970)This personal injury suits was brought by Mary Green, as widow (wrongful death suit), and Edwin Green, Sr. against American Tobacco Co. (personal injury suit) in December, 1957. After Mr. Green's death the suit was continued by Edwin Green, Jr., as Administrator of the estate of Edwin Green, Sr.
The plaintiffs alleged that Edwin Green Sr. incurred lung cancer as a result of smoking Lucky Strick cigarettes. Mr. Green began smoking in 1924 at the age of 16. He was diagnosed with lung cancer in February 1, 1956 and died on February 25, 1958 at age 49. The plaintiffs claimed breach of express and implied warranty, negligence, misrepresentation, battery and violation of federal and state drug and cosmetic acts.
The cases were heard in the United States District Court for the Southern District of Florida, Miami Division (Nos. 8505-M-Civil and 8030-M-Civil), before the Honorable Emett C. Choate. At the close of the plaintiffs' evidence, the judge granted the defendant's motion for directed verdict on all but the breach of implied warranty and negligence claims. The jury returned a verdict for the defendant and the judge awarded costs against the plaintiffs for $1,969.74 including expert witness fees of $900. The plaintiffs appealed the judgment on the breach of implied warranty claim only.
The United States Court of Appeals, Fifth Circuit (304 F2d 70) affirmed the judgment for the defendants but reversed the award of costs on May 2, 1962. The court held that under implied warranty, the defendant was not the absolute insurer of its product. The standard was justifiable reliance on the skill and knowledge of the defendants. The jury's finding that there was no human skill or foresight that the defendants could have used to avoid the harmful effects was to be respected. The judge below had no authority to award costs for compensation of expert witnesses in excess of the statutory daily allowance. The court certified the question of absolute liability to the Supreme Court of Florida for review.
On December 11, 1963, the Court of Appeals (325 F2d 673) reversed and remanded the case in light of answers to a question certified to the Supreme Court of Florida. The state court had ruled that the defendant's actual knowledge of the defective condition was irrelevant to liability under an implied warranty theory. Thus, the instruction that implied warranty of fitness did not cover harmful effect that no human skill or foresight could know was a prejudicial error. There was sufficient evidence to put to the jury whether the cigarettes were reasonably fit for human consumption. The court held that while the verdict was overruled, the individual interrogatories returned by the jury were still binding in any future trial, but that trial could include any not-inconsistent issues.
The Supreme Court of the United States (377 U.S. 943) denied certiorari on May 25, 1964.
On remand, the sole issue put to the jury was whether cigarettes were reasonably fit and wholesome for human use. The previous jury findings that Mr. Green died of lung cancer caused by cigarettes carried forward to this trial. Judge Choate again rendered judgment in accord with a second jury verdict for the defendant on November 27, 1964. The plaintiffs appealed again.
On January 24, 1968 the Court of Appeals (391 F2d 97) again reversed and remanded the case. The court held that Mr. Green was entitled to rely on implied assurances of wholesomeness and fitness by the defendant. The defendants' experts in the second trial should not have been allowed to testify that they did not know the cause of cancer, since it put the jury in the position of having to return an impossible verdict: cigarettes caused Mr. Green's cancer (held over from the first trial) but because no one knows the cause of cancer, cigarettes are reasonably fit for human consumption. Mr. Green was allowed under Florida law to rely on the implied assertion that cigarettes were safe for their intended purpose. The defendant could be held absolutely liable for those injuries caused when they weren't. The court directed a verdict for the plaintiff and remanded the case for a determination on damages only. Judge Simpson dissented.
A third jury trial was held, limited to the issue of damages.
On April 8, 1969, the Court of Appeals (409 F.2d 1166), on rehearing en banc, the appeal from the second trial and affirmed the trial judge's decision regarding the defendant's expert testimony. Rather than writing an opinion, the court adopted Judge Simpson's dissent from the January 24, 1968 judgment: If the plaintiffs' experts testified to the effect of cigarette smoking on the population, then the defense experts were entitled to testify that they did not know the cause of cancer. Such evidence did not confuse the jury by bringing in issues that were already decided. The defendant could not be held absolutely liable (liability without fault) for Mr. Green's death caused by cigarettes. The Florida position on implied warranty seemed to require that there first be some actual adulteration in the product before liability attached. The issue of reasonable wholesomeness and fitness should have remained an issue in the case. The Court of Appeals incorrectly found that there had been a change in state law removing that issue.
The Supreme Court of the United States (397 U.S. 911) denied certiorari on February 24, 1970.