Products Liability Law Reporter

Barbara Fontaine began smoking Marlboro and Parliament cigarettes as a teenager and continued to smoke approximately one and a half packs per day for the next four decades. Struggling to overcome her addiction to nicotine, she finally was able to quit smoking around 2015. That year, however, she was diagnosed with lung cancer. Despite numerous treatments, her cancer spread, and she died of the disease at age 60. She is survived by her husband and two children.

Fontaine’s husband, individually and on behalf of her estate, filed suit against Philip Morris USA, Inc., and Demoulas Super Markets, Inc., which owned the market that had sold Marlboro and Parliament brand cigarettes to Fontaine. Suit alleged claims for breach of warranty, negligent design, negligent marketing, fraud, and conspiracy. The plaintiffs asserted that by the early 1960s, Philip Morris and other cigarette manufacturers acknowledged internally that smokers were addicted to nicotine delivered by cigarettes and that the tar in cigarette smoke causes cancer. Moreover, the plaintiff claimed, Philip Morris purposefully manipulated and controlled the tar and nicotine content and delivery methods of its tobacco products, including Marlboro and Parliament brand cigarettes, to create and maintain smokers’ addiction to cigarettes.

The jury awarded the plaintiffs more than $8 million in compensatory damages, including $514,000 for medical expenses, and $1 billion in punitive damages. The jury found that there were reasonable, safer alternative designs for Marlboro and Parliament cigarettes, including cigarettes with a very low level of nicotine, noninhalable cigarettes, and heat-not-burn cigarettes. The jury also concluded that Philip Morris had engaged in a coercive conspiracy with other tobacco companies and organizations and that this was a cause of Fontaine’s lung cancer and death.

Citation: Fontaine v. Philip Morris USA, Inc., No. 2081CV00169 (Mass. Super. Ct. Middlesex Cty. Sept. 19, 2022).

Plaintiff counsel: Randy Rosenblum, Miami; and Andrew A. Rainer, Mark Gottlieb, and Meredith K. Lever, all of Boston.

Comment: In Olsen v. Philip Morris USA, Inc., 343 So. 3d 172 (Fla. Dist. Ct. App. 2022), Rosemary Olsen, on behalf of her husband’s estate, brought an Engle progeny case against Philip Morris USA. A jury found in favor of the defendant, answering in the negative on the threshold question of whether the plaintiff’s husband had been addicted to cigarettes containing nicotine and, if so, whether the addiction was the legal cause of his heart disease. The trial court denied the plaintiff’s motion for a new trial. The plaintiff appealed, arguing that the trial court had abused its discretion in allowing Philip Morris to improperly impeach Olsen and in overruling objections to arguments by defense counsel that Olsen’s trial counsel had procured false testimony from her to defeat the defendant’s limitations defense. The appellate court affirmed. It held that a trial court has control over the scope of cross-examination, and its rulings are not subject to review unless there has been a clear abuse of discretion. Reviewing the record here, the court concluded there had not been an abuse of discretion.