Shelia Longden v. Philip Morris USA

Hillsborough County (NH) Superior Court

On November 24, 2003, a jury in Manchester New Hampshire found that Philip Morris USA was not liable for the lung cancer death of longtime Marlboro smoker Julien Longden.

Julien Longden started smoking as a teenager in 1962 and continued to smoke until July 1998 when he was diagnosed with lung cancer. He died from that disease in May, 2000 at the age of 49. During his life, he had smoked Marlboro as well as Camel and Winston cigarettes.

Ms. Longden, who lives in Manchester, NH, brought the wrongful death action charging Philip Morris USA with fraud and conspiracy. The complaint alleged that Mr. Longden was already addicted by 1966 and charged Philip Morris with engaging in decades of conspiracy and willful wrongdoing regarding the health effects of smoking.

Philip Morris had argued that it was entitled to summary judgment on all of the plaintiffs' claims except those based on a design-defect theory not involving a failure to warn. Philip Morris also moved to strike the testimony of three of the plaintiff's witnesses.

On April 8, 2003, Judge Larry Smukler issued his ruling, which allowed the plaintiffs' failure-to-warn claim to stand, finding that Philip Morris had failed to persuade the court that the claim is preempted as a matter of law by the federal statute that required warnings to be placed on cigarettes and advertisement beginning in 1966. The ruling also denied Philip Morris' motions for summary judgment on claims based on the New Hampshire Consumer Protection Act, negligence, breach of implied/express warranty and loss of consortium. However, Judge Smukler later granted a directed finding in favor of Philip Morris on several of these counts on November 5, 2003.

Judge Smukler ruled that the plaintiffs are not relying merely on "the inherently dangerous qualities of cigarettes. They have presented evidence supporting a finding that Philip Morris not only enhanced their tobacco by utilizing ammonia technology, specialized filters and other additives, including flavorings and casings, but that Philip Morris also failed to adopt reasonable alternative designs known to them that could have prevented many smoking-related cancer deaths."

Charles G. Douglas III of Douglas, Leonard & Garvey in Concord, NH represents the plaintiff. The trial began on October 6, 2003. The jury of 12, which was required to issue a unanimous verdict, deliberated for just under two days.

Commentary

Edward L. Sweda. Jr., senior staff attorney for the Tobacco Products Liability Project at Northeastern University School of Law expressed disappointment with the verdict. "Having personally observed several days of courtroom testimony and arguments, it was clear to me that the plaintiff proved that Philip Morris was putting more than tobacco into Marlboros. These cigarettes were adulterated toxic additives that made them more addictive than ordinary cigarettes. It is hard to understand why Philip Morris would rely on a more dangerous design than their competitors unless it was to get a competitive advantage despite the added risks to their customers. This jury had an excellent opportunity to tell Philip Morris that it would not accept this total disregard for the health of its customers."

Mark Gottlieb, also an attorney for the Tobacco Products Liability Project at Northeastern University School of Law states that noted that, "the trial judge in this case would not allow the plaintiffs to present a theory of comparative negligence to the jury. He should have allowed the jury to find that Mr. Longden was responsible for his fatal lung cancer, but also that Philip Morris had a responsibility to Mr. Longden to be honest about what it knew about the dangers of Marlboros. When Mr. Longden was diagnosed with lung cancer in 1998, the CEO of Philip Morris was still voicing doubts about whether smoking really caused lung cancer. We all understand how a jury might feel reluctant to place all of the blame for cigarette deaths on the companies when, clearly, there is an issue of personal responsibility in play. The judge denied the jury the opportunity to consider the personal responsibility of the smoker in contrast to the corporate responsibility of a company that has lied to its customers in order to rake in billions of dollars each month killing hundreds of thousands of Americans each year. This may form a strong basis for an appeal.

See New Hampshire Television Station WMUR's coverage of closing arguments:
choose dial-up or broadband (utilizes Real Player).

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