Horton v. American Tobacco Co.
(Wrongful Death MS Cir. Ct. 1986 Pltf. Decision) Citation: 508 So.2d 1057, 75 A.L.R.4th 997, 55 USLW 2635, 2 U.S.P.Q.2d 1866 (Miss. 1987); 667 So.2d 1289 (Miss. 1995)This individual wrongful death suit was brought by Ella Mae Horton, widow, and Nathan Randall Horton, son, individually and on behalf of all wrongful death beneficiaries and the estate of Nathan Henry Horton against American Tobacco Co. and New Deal Tobacco and Candy Co in May of 1986.
The plaintiffs alleged that Nathan Horton's 30 years of smoking Pall Mall Cigarettes was a cause of his emphysema and lung cancer which caused his death. They alleged that Pall Malls had been contaminated with fertilizers and pesticides and contained additives that the defendant knew were dangerous including DDVP. These levels went beyond the government-approved limits. They claimed misrepresentation and concealment, violation of the Environmental Protection Agency's mandates for poisons, and failure to warn. The plaintiffs sought medical expenses, lost wages, pain and suffering, and loss of companionship, as well as punitive damages.
The defendants argued that smoking did not cause Nathan Horton's type of lung cancer: joint cell carcinoma. They also argued free will and assumption of risk.
The parties stipulated that Nathan Horton was to some extent negligent in his own death for continuing to smoke cigarettes and that damages should be reduced according to that percent negligence.
The case was heard in the Circuit Court of Holmes County, Mississippi (No. 9050) before the Honorable Judge Gray Evans. The judge ordered the defendant to disclose a list of additives in its Pall Mall brand of cigarettes pursuant to a plaintiff's interrogatory over the defendant's objections. The information was subject to a protective order
In an interlocutory appeal, the Mississippi Supreme Court (508 So.2d 1057) denied American Tobacco Co.'s writ prohibiting discovery of the ingredients of its brand of cigarettes, ruling that it was discoverable even if a trade secret, so long as a protective order was used. It refused to recognize the defendant's argument limiting the plaintiff's claim and thus limiting discovery. The plaintiffs have the perogative to define their claim. They need the requested evidence to prove defect and causation.
The trial began January 5, 1988 and ended in a hung jury. The judge declared a mistrial under circumstances that led to rumors of jury-tampering.
The plaintiffs filed an amended complaint on September 14, 1989 withdrawing their implied warranty, failure to warn and misrepresentation claims.
The case was again heard in the Circuit Court of LaFayette County, Mississippi (Cause No. 9050), before the Honorable Eugene M. Bogen in 1990. This trial covered the claims of negligence and strict product liability. At the conclusion of the plaintiffs' case the judge granted a partial directed verdict to the defendants regarding the claim of negligence. The issue of strict liability went to the jury. It was instructed using consumer expectation standards rather than risk utility standards. The jury found for the plaintiffs but awarded $0 damages. Both parties appealed. The plaintiff appealed on the basis of incorrect jury instructions and insufficient damage awards. The defendants appealed arguing that that they were entitled to a directed verdict on strict liability.
The Supreme Court (667 So.2d 1289) affirmed the verdict on November 9, 1995. It held that the trial court erred in not using the risk-utility standard but affirmed the award of $0 damages on the basis of comparative fault. The court ruled that the error in jury instruction was harmless because it did not prevent the jury from finding in the plaintiffs' favor. The court dismissed the claim for directed verdict because the claim is moot. Comparative negligence, even 100%, does not bar potential recovery of punitive and other damages.