NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1091
CALVIN WOODLEY
vs.
PHILIP MORRIS USA INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant Philip Morris USA Inc. appeals from a judgment on
the jury verdict in the Superior Court in favor of the
plaintiff, Calvin Woodley. On appeal, the defendant argues that
the trial judge wrongly denied its motion for judgment
notwithstanding the verdict because the plaintiff failed to
prove that he would have heeded a warning if provided. In the
alternative, the defendant argues that the trial judge wrongly
denied its motion for mistrial based on surprise expert
testimony. We affirm.
1. Background. The plaintiff was born in 1944 and smoked
his first cigarette in 1958. Until 1966, the plaintiff smoked
various brands of cigarettes -- including the defendant's Marlboro brand cigarettes. At some point after 1966, the
plaintiff began exclusively smoking Marlboro cigarettes. Except
for a period not exceeding three years, the plaintiff continued
to smoke Marlboro cigarettes until he quit in 2013.
The plaintiff commenced this action in 2020 after
developing laryngeal cancer. He asserted five claims against
the defendant: (i) breach of implied warranty based on design
defect and failure to warn; (ii) negligent design; (iii) fraud
and misrepresentation; (iv) conspiracy to commit fraud and
misrepresentation; and (v) violation of the Consumer Protection
Act, G. L. c. 93A, § 9. Following discovery, the trial judge
granted summary judgment for the defendant on claims iii and iv.
The remaining common-law claims were tried by a jury in 2023.
Two motions made by the defendant during the trial are relevant
in this appeal.
First, the defendant moved for a directed verdict on the
ground that the plaintiff produced evidence insufficient to show
that he would not have gotten cancer had the defendant provided
adequate warnings before July 1, 1969. The defendant argued
that the plaintiff's evidence was insufficient because he became
addicted while smoking cigarettes manufactured by another
company. The defendant renewed this motion as a motion for
judgment notwithstanding the verdict, reiterating its original
2 argument and adding that given the plaintiff's admissions, no
rational jury could have found that the plaintiff would have
heeded an adequate warning. The trial judge rejected both
arguments.
Second, the defendant moved for a mistrial on the ground
that testimony by the plaintiff's medical expert deviated from
the expert's report and deposition, constituting unfair
surprise. The defendant contended that the expert did not
disclose before testifying at trial his opinion that the
plaintiff's laryngeal cancer could not have been caused by
alcohol because of the cancer's location in the subglottic
region of the larynx. Though the trial judge denied this
motion, he offered three remedial measures to compensate for the
defendant's complaints: (i) additional time to cross-examine
the expert, (ii) an opportunity to call a previously retained
expert, and (iii) an opportunity to call an additional "last
minute expert." Though the defendant utilized measures i and
ii, it did not ask for a continuance related to this issue.
After an eleven-day trial, a jury found in favor of the
plaintiff on the failure to warn claim, awarding a five million
dollar judgment for compensatory damages.1 The trial judge
1 The jury found in favor of the defendant on the negligent design claim.
3 subsequently dismissed the plaintiff's G. L. c. 93A, § 9 claim
and, as described supra, denied the defendant's motion for
judgment notwithstanding the verdict. This appeal ensued.
2. Discussion. a. Denial of motion for judgment
notwithstanding the verdict. On appeal, the defendant argues
that the trial judge erred in denying its motion for judgment
notwithstanding the verdict because the plaintiff's testimony
obviates his claim that he would have heeded a warning that
described the danger of smoking cigarettes.
We review the trial judge's decision for abuse of
discretion. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014). Trial judges abuse their discretion when committing "a
clear error of judgment in weighing the factors relevant to the
decision . . . such that the decision falls outside the range of
reasonable alternatives" (quotation omitted). Id. To deny a
motion for judgment notwithstanding the verdict, the trial judge
must find that some evidence, no matter how insubstantial,
supports "a reasonable inference [that] could be drawn in favor
of the plaintiff." Beliveau v. Ware, 87 Mass. App. Ct. 615, 616
(2015).
A jury may infer that a warning, once given, will be
heeded. Evans v. Lorillard Tobacco Co., 465 Mass. 411, 442
(2013). "Once a plaintiff establishes that a warning should
4 have been given, the burden is on 'the defendants to come
forward with evidence tending to rebut such an inference.'"
Id., quoting Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 352
(1978).
On appeal, the defendant contends that the plaintiff
undermined the heeding inference with this statement from his
cross-examination:
Q: "As we sit here today, you can't think of anything that Philip Morris could have done differently to prevent your injury, true?" A: "Yes, I guess." Q: "That's true?" A: "Yes." Therefore, the defendant argues that its failure to warn could
not have caused the plaintiff's injury because the plaintiff
admitted that there was nothing that Philip Morris could have
done (presumably including giving an adequate warning) to
prevent his injury.
The exchange the defendant cites is not the silver bullet
it desires. The defendant's burden is high: it must show that no
reasonable inference can be drawn from the evidence to support a
verdict. See Beliveau, 87 Mass. App. Ct. at 616. The
plaintiff, an eighty year old cancer survivor with limited
literacy, provided conflicting testimony. Though he admitted
that he could think of "nothing [the defendant] could have done
differently," he also stated moments later that he would have
5 wanted to know that "if [he] continued smoking, [he] would get
cancer." From this testimony, a reasonable jury could infer
that the plaintiff may have heeded a proper warning. By finding
in the plaintiff's favor, the jury made the Evans inference: the
plaintiff would have heeded a warning if it were given. See 465
Mass. at 442.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1091
CALVIN WOODLEY
vs.
PHILIP MORRIS USA INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant Philip Morris USA Inc. appeals from a judgment on
the jury verdict in the Superior Court in favor of the
plaintiff, Calvin Woodley. On appeal, the defendant argues that
the trial judge wrongly denied its motion for judgment
notwithstanding the verdict because the plaintiff failed to
prove that he would have heeded a warning if provided. In the
alternative, the defendant argues that the trial judge wrongly
denied its motion for mistrial based on surprise expert
testimony. We affirm.
1. Background. The plaintiff was born in 1944 and smoked
his first cigarette in 1958. Until 1966, the plaintiff smoked
various brands of cigarettes -- including the defendant's Marlboro brand cigarettes. At some point after 1966, the
plaintiff began exclusively smoking Marlboro cigarettes. Except
for a period not exceeding three years, the plaintiff continued
to smoke Marlboro cigarettes until he quit in 2013.
The plaintiff commenced this action in 2020 after
developing laryngeal cancer. He asserted five claims against
the defendant: (i) breach of implied warranty based on design
defect and failure to warn; (ii) negligent design; (iii) fraud
and misrepresentation; (iv) conspiracy to commit fraud and
misrepresentation; and (v) violation of the Consumer Protection
Act, G. L. c. 93A, § 9. Following discovery, the trial judge
granted summary judgment for the defendant on claims iii and iv.
The remaining common-law claims were tried by a jury in 2023.
Two motions made by the defendant during the trial are relevant
in this appeal.
First, the defendant moved for a directed verdict on the
ground that the plaintiff produced evidence insufficient to show
that he would not have gotten cancer had the defendant provided
adequate warnings before July 1, 1969. The defendant argued
that the plaintiff's evidence was insufficient because he became
addicted while smoking cigarettes manufactured by another
company. The defendant renewed this motion as a motion for
judgment notwithstanding the verdict, reiterating its original
2 argument and adding that given the plaintiff's admissions, no
rational jury could have found that the plaintiff would have
heeded an adequate warning. The trial judge rejected both
arguments.
Second, the defendant moved for a mistrial on the ground
that testimony by the plaintiff's medical expert deviated from
the expert's report and deposition, constituting unfair
surprise. The defendant contended that the expert did not
disclose before testifying at trial his opinion that the
plaintiff's laryngeal cancer could not have been caused by
alcohol because of the cancer's location in the subglottic
region of the larynx. Though the trial judge denied this
motion, he offered three remedial measures to compensate for the
defendant's complaints: (i) additional time to cross-examine
the expert, (ii) an opportunity to call a previously retained
expert, and (iii) an opportunity to call an additional "last
minute expert." Though the defendant utilized measures i and
ii, it did not ask for a continuance related to this issue.
After an eleven-day trial, a jury found in favor of the
plaintiff on the failure to warn claim, awarding a five million
dollar judgment for compensatory damages.1 The trial judge
1 The jury found in favor of the defendant on the negligent design claim.
3 subsequently dismissed the plaintiff's G. L. c. 93A, § 9 claim
and, as described supra, denied the defendant's motion for
judgment notwithstanding the verdict. This appeal ensued.
2. Discussion. a. Denial of motion for judgment
notwithstanding the verdict. On appeal, the defendant argues
that the trial judge erred in denying its motion for judgment
notwithstanding the verdict because the plaintiff's testimony
obviates his claim that he would have heeded a warning that
described the danger of smoking cigarettes.
We review the trial judge's decision for abuse of
discretion. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014). Trial judges abuse their discretion when committing "a
clear error of judgment in weighing the factors relevant to the
decision . . . such that the decision falls outside the range of
reasonable alternatives" (quotation omitted). Id. To deny a
motion for judgment notwithstanding the verdict, the trial judge
must find that some evidence, no matter how insubstantial,
supports "a reasonable inference [that] could be drawn in favor
of the plaintiff." Beliveau v. Ware, 87 Mass. App. Ct. 615, 616
(2015).
A jury may infer that a warning, once given, will be
heeded. Evans v. Lorillard Tobacco Co., 465 Mass. 411, 442
(2013). "Once a plaintiff establishes that a warning should
4 have been given, the burden is on 'the defendants to come
forward with evidence tending to rebut such an inference.'"
Id., quoting Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 352
(1978).
On appeal, the defendant contends that the plaintiff
undermined the heeding inference with this statement from his
cross-examination:
Q: "As we sit here today, you can't think of anything that Philip Morris could have done differently to prevent your injury, true?" A: "Yes, I guess." Q: "That's true?" A: "Yes." Therefore, the defendant argues that its failure to warn could
not have caused the plaintiff's injury because the plaintiff
admitted that there was nothing that Philip Morris could have
done (presumably including giving an adequate warning) to
prevent his injury.
The exchange the defendant cites is not the silver bullet
it desires. The defendant's burden is high: it must show that no
reasonable inference can be drawn from the evidence to support a
verdict. See Beliveau, 87 Mass. App. Ct. at 616. The
plaintiff, an eighty year old cancer survivor with limited
literacy, provided conflicting testimony. Though he admitted
that he could think of "nothing [the defendant] could have done
differently," he also stated moments later that he would have
5 wanted to know that "if [he] continued smoking, [he] would get
cancer." From this testimony, a reasonable jury could infer
that the plaintiff may have heeded a proper warning. By finding
in the plaintiff's favor, the jury made the Evans inference: the
plaintiff would have heeded a warning if it were given. See 465
Mass. at 442. The defendant's view of the plaintiff's testimony
may rebut that inference, but the jury is not required to share
the defendant's view of the evidence. See id.; Commonwealth v.
Dubois, 451 Mass. 20, 28 (2008) ("The weight and credibility of
the evidence is the province of the jury"). Viewing the
plaintiff's testimony in its entirety, the trial judge found
that "there was more than sufficient evidence from which the
jury reasonably could have found that Marlboros were a cause of
[the plaintiff's] addiction." We agree. Therefore, we discern
no abuse of discretion in denying the defendant's motion for
judgment notwithstanding the verdict.
b. Denial of motion for new trial. The defendant offers
an alternative argument that the trial judge wrongly denied its
motion for mistrial because of surprise expert testimony.
The Massachusetts Rules of Civil Procedure require parties
to disclose the "substance of the facts and opinions to which
the expert is expected to testify and a summary of the grounds
for each opinion." Mass. R. Civ. P. 26 (b) (4) (A) (i), 365
6 Mass. 772 (1974). "In the absence of 'prejudicial error
resulting from an abuse of discretion,' we 'will not disturb a
judge's exercise of discretion' regarding expert witness
disclosures." Kace v. Liang, 472 Mass. 630, 637 (2015), quoting
Wilson v. Honeywell, Inc., 409 Mass. 803, 809 (1991).
Expert disclosure "facilitate[s] the fair exchange of
information about critical witnesses and . . . prevent[s] unfair
surprise." Kace, 472 Mass. at 636-637. To this end, a
"barebones" disclosure satisfies the rule if it is "consistent
with and not qualitatively different from . . . trial
testimony." Larkin v. Dedham Med. Assocs., 93 Mass. App. Ct.
661, 667 (2018). In instances where disclosure does not meet
the "barebones" standard, "a judge has broad discretion to admit
or exclude 'expert testimony when the proponent has not given
proper notice of . . . the subject matter of the expert's
anticipated testimony.'" Kace, 472 Mass. at 637 (2015), quoting
Elias v. Suran, 35 Mass. App. Ct. 7, 10 (1993).
Here, the defendant takes issue with trial testimony from
the plaintiff's medical expert that the causative role of
cigarette smoking in the plaintiff's cancer can be proven by the
cancer's location in the subglottic region of the larynx.
Though this trial testimony was the first time the expert
mentioned the subglottic location of the cancer, it was not
7 "qualitatively different" from his disclosure and deposition
testimony. See Larkin, 93 Mass. App. Ct. at 667.
Throughout discovery, the expert consistently opined that
cigarette smoking was a primary driver of the plaintiff's
cancer. In his original disclosure statement, he stated that
"cigarette smoking is the most significant risk factor for the
development" of the plaintiff's form of cancer. His original
statement also considered the location of the plaintiff's
cancer, using the location to rule out the Human Papilloma Virus
as a cause of the affliction. In an addendum to his expert
witness disclosure statement, the expert stated bluntly: "This
is a smoking-related laryngeal cancer." In deposition, the
expert was similarly dismissive of the role of alcohol abuse in
the plaintiff's cancer, stating that "smoking activities [are
clearly] driving [the plaintiff's form of cancer]."
When the expert opined at trial about the subglottic
location of the cancer, he added another justification for his
established opinion. Kace addressed this situation in the
context of medical malpractice. There, the plaintiff's expert
disclosed an opinion that the defendant deviated from the
standard of care by failing to recognize certain symptoms and
elaborated at trial that the unusually fast duration of the
defendant's medical examination deviated from the applicable
8 standard of care. Kace, 472 Mass at 637. The Supreme Judicial
Court found that the duration opinion was permissible because it
was not "qualitatively different" from pretrial disclosures.
Id. The same is true here. The expert repeatedly opined pre-
trial that the plaintiff's cancer was caused by smoking. At
trial, he added another basis for that reason in the subglottic
location of the cancer. Though "[t]here is no question that the
spirit and purpose of our discovery rules would have been better
served by a direct disclosure," this was permissible. Id.
Even if the expert's trial testimony was "qualitatively
different" from his disclosure, we cannot substitute our
judgment for that of the trial judge on this issue. In
declining the defendant's mistrial motion, the trial judge
exercised his "broad discretion to admit or exclude 'expert
testimony when the proponent has not given proper notice.'" See
Kace, 472 Mass. at 637, quoting Elias, 35 Mass. App. Ct. at 10.
Further undermining the defendant's argument is its failure
at trial to request a continuance related to this issue. This
failure occurred despite the trial judge's acknowledgment that
the expert's trial testimony was a "big change" and offer of
multiple remedies short of a mistrial. We have explained many
times that the failure to ask for a continuance in these
situations subverts an appealing party's claim of unfair
9 surprise. See e.g., Beaupre v. Cliff Smith & Assocs., 50 Mass.
App. Ct. 480, 486 (2000); Resendes v. Boston Edison Co., 38
Mass. App. Ct. 344, 350-351 (1995); Giannaros v. M.S. Walker,
Inc., 16 Mass. App. Ct. 902, 903 (1983). A failure to request a
continuance indicates "that there was nothing further to
investigate regarding [the witness], that [the defendant was]
prepared to cross-examine [the witness], and that [the
defendant's] expert was ready to counter opinions favorable to
the plaintiff's case." Beaupre, supra.
Judgment affirmed.
Order denying motion for judgment notwithstanding the verdict affirmed.
By the Court (Rubin, Desmond & Singh, JJ.2),
Clerk.
Entered: January 8, 2025.
2 The panelists are listed in order of seniority.