James Coyne v. R.J. Reynolds Tobacco Company.

• Court: Massachusetts Appeals Court
• Decided: May 30, 2023
• Docket: 22-P-0123
• Status: Unpublished

Opinion

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

22-P-123

JAMES COYNE1

vs.

R.J. REYNOLDS TOBACCO COMPANY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Pamela Coyne began smoking cigarettes as a young teenager,

became addicted to them, and died an untimely death from lung

cancer in 2016. She was fifty-eight years old. Primarily, she

smoked Winston cigarettes. Her husband, James Coyne,

individually and as personal representative of Pamela's estate,2

brought this action against the manufacturer of Winston

cigarettes, R.J. Reynolds Tobacco Company (R.J. Reynolds), for

negligent marketing, conspiracy, breach of warranty, and

violation of G. L. c. 93A. Following a trial, the jury found in

James's favor on his claims for negligent marketing, conspiracy,

and breach of warranty, and awarded $6,314,233 in compensatory

1 Individually and as personal representative of the estate of Pamela Coyne. 2 We refer to Pamela and James Coyne by their first names to

avoid confusion. damages and $11,275,000 in punitive damages. The judge also

found in James's favor on his claim for violation of G. L.

c. 93A but awarded no additional damages. R.J. Reynolds seeks

reversal. We agree with R.J. Reynolds that the evidence was

insufficient to support James's negligent marketing claim and

that, accordingly, the award of punitive damages must be vacated

and remanded for a new trial. In all other respects, we affirm.

1. Sufficiency of the evidence. R.J. Reynolds raised and

preserved its arguments regarding the sufficiency of the

evidence through motions for directed verdict and for judgment

notwithstanding the verdict.3 We review motions for directed

verdict and for judgment notwithstanding the verdict "under the

same standard used by the trial judge." O'Brien v. Pearson, 449

Mass. 377, 383 (2007). We "construe the evidence in the light

most favorable to the nonmoving party and disregard that

favorable to the moving party." Id. "Our duty . . . is to

evaluate whether anywhere in the evidence, from whatever source

derived, any combination of circumstances could be found from

which a reasonable inference could be made in favor of the

[nonmovant]" (quotation omitted). Id.

3 The trial judge initially granted R.J. Reynolds's motion for directed verdict as to James's claim for negligent marketing but then reconsidered and reversed that decision.

2 a. Negligent marketing. James's negligent marketing claim

was tried on the theory that when Pamela was a minor, R.J.

Reynolds had a duty to avoid marketing cigarettes in a manner

calculated to induce purchases by minors and that R.J. Reynolds

violated that duty, causing Pamela to start smoking. See Evans

v. Lorillard Tobacco Co., 465 Mass. 411, 444 (2013). For

purposes of this appeal, R.J. Reynolds does not dispute that it

had such a duty or that it violated that duty. R.J. Reynolds

does argue, however, that there was insufficient evidence to

support the conclusion that R.J. Reynolds's negligence caused

Pamela to start smoking. As noted, we agree.

James relies on evidence showing that, when Pamela was a

child, R.J. Reynolds had a pervasive and successful advertising

campaign targeted toward the youth market, and that Pamela

surely saw R.J. Reynolds's advertisements as a child. However,

the existence of the advertising campaign, even if pervasive and

successful, does not show why Pamela began smoking, and no other

evidence linked Pamela's decision to start smoking to anything

that R.J. Reynolds said or did. There was no testimony from

Pamela regarding why she began smoking, as she died before James

brought this action. Two witnesses, Pamela's sister and a

childhood friend, testified regarding Pamela's earliest years as

a smoker. They testified that Pamela began smoking when she was

around fourteen years old by stealing cigarettes from family

3 members. Neither knew whether R.J. Reynolds said or did

anything that influenced Pamela's decision to start smoking.4

Instead, Pamela's sister testified that Pamela smoked because

"everybody" smoked back then and that, at their house in

particular, "[s]moking cigarettes was like eating dinner" or

"like brushing your teeth."

While direct evidence regarding why someone began smoking

is not required, a reasonable inference "must be based on

probabilities rather than possibilities and cannot be the result

of mere speculation and conjecture" (quotation omitted).

Reading Co-Op. Bank v. Suffolk Constr. Co., 464 Mass. 543, 556

(2013). As other courts have concluded, evidence of a tobacco

company's advertising or disinformation campaign, in and of

itself, is insufficient to establish that the marketing or

disinformation campaign influenced someone's decision to start

smoking. See Prentice v. R.J. Reynolds Tobacco Co., 338 So.3d

831, 836, 840 (Fla. 2022) (resolving disagreement among lower

courts, concluding that for fraudulent concealment and

conspiracy claims, tobacco plaintiff must show reliance on

statement and not merely appeal to tobacco company's

disinformation campaign). See also Brown v. Philip Morris Inc.,

4 In addition to Pamela's sister and childhood friend, two other witnesses knew Pamela as a child -- her half-brother and a neighbor she babysat. They, too, were unaware whether R.J. Reynolds said or did anything that influenced Pamela's decision.

4 228 F. Supp. 2d 506, 518-520 (D.N.J. 2002); Tompkins v. R.J.

Reynolds Tobacco Co., 92 F. Supp. 2d 70, 82-83 (N.D.N.Y. 2000).

There must be some evidence, even if circumstantial, linking the

person's decision to start smoking with something the tobacco

company said or did. See, e.g., Boeken v. Philip Morris, Inc.,

127 Cal. App. 4th 1640, 1661-1663, 1666-1667 (2005), cert.

denied, 547 U.S. 1018 (2006) (circumstantial evidence sufficient

where, even though plaintiff could not identify advertisement

that caused him to start smoking, his stated reasons for

beginning to smoke tracked advertising campaign). Here, because

there was no evidence making that link, a directed verdict

should have entered on James's negligent marketing claim in R.J.

Reynolds's favor.5

b. Conspiracy. The jury found R.J. Reynolds liable of

conspiracy on a concerted action theory, which required James to

prove "an underlying tortious act in which two or more persons

acted in concert and in furtherance of a common design or

agreement." Bartle v. Berry, 80 Mass. App. Ct. 372, 383-384

(2011). Here, James alleged the underlying tortious act of

misrepresentation, which required James to prove a false

5 In reaching the contrary conclusion, the trial judge focused on the fact that Pamela often repeated a Winston advertising phrase -- "Winston tastes good like a cigarette should" -- as an adult. However, the mere fact that Pamela was familiar with this phrase, which Winston used into Pamela's adulthood, says nothing about why she began smoking as a young teenager.

5 representation of material fact, made with knowledge of or in

reckless disregard of the truth and with the intent to induce

reliance, and actual reliance. See Sullivan v. Five Acres

Realty Trust, 487 Mass. 64, 73 (2021); Christian v. Mooney, 400

Mass. 753, 764 (1987), cert. denied, 484 U.S. 1053 (1988).

In support of this claim, James offered the expert

testimony of Dr. Robert Neal Proctor6 that the cigarette industry

created the concept of "light" cigarettes in response to market

research showing that smokers would switch to "lights" thinking

that they were healthier, when in fact the cigarette industry

knew that "lights" were just as harmful as other cigarettes.7

There was also evidence that, unlike with Pamela's negligent

marketing claim, Pamela did in fact rely on this specific

disinformation. James testified that Pamela began smoking

6 Dr. Proctor is a professor of the history of science at Stanford University and has researched the tobacco archives, which include eighty-five million pages of the industry's formerly internal business records. 7 R.J. Reynolds argues that (1) James failed to point to a

specific statement made by R.J. Reynolds that "light" cigarettes were healthier and (2) Dr. Proctor testified that no such statements were made because the cigarette industry did not want to imply that other cigarettes were unhealthy. However, the jury reasonably could have found that R.J. Reynolds created a "smoke screen of deception and misinformation" calculated to mislead smokers that "light" cigarettes were healthier, without directly making that statement. Greene v. Philip Morris USA Inc., 491 Mass. 866, 873 (2023). See Sullivan, 487 Mass. at 73 ("Deception need not be direct to come within the reach of the law. Declarations and conduct calculated to mislead and which in fact do mislead one who is acting reasonably are enough to constitute fraud" [quotation omitted]).

6 Winston lights in 1987 "because she believed it would be easier

to quit." One of Pamela's daughters similarly testified that

Pamela switched to Winston lights thinking that they were

"healthier" and "a road to quitting."8 However, Pamela's smoking

did not decrease after she switched to Winston lights, and

instead increased. Lastly, James offered the expert testimony

of an oncologist that Pamela's decision to smoke Winston lights,

instead of quitting,9 contributed to her lung cancer. Based on

this evidence, the jury reasonably concluded that R.J. Reynolds

was liable for conspiracy.10

c. Breach of warranty. To prevail on his breach of

warranty claim, James had to prove that "the foreseeable risks

of harm posed by [Winston cigarettes] could have been reduced or

8 While R.J. Reynolds argues that Pamela may have come to believe that Winston lights were a "healthier" option from some source other than R.J. Reynolds, this argument does not view the evidence in the light most favorable to James. 9 We are unpersuaded by R.J. Reynolds's arguments that Pamela

knew of the dangers of smoking, that Pamela did not take her health seriously, and that she would have smoked regardless of what R.J. Reynolds said or did. These arguments do not view the evidence in the light most favorable to James. Aside from the evidence showing that Pamela viewed Winston lights as healthier, several witnesses testified that she wanted to and tried quitting. See, e.g., Greene, 491 Mass. at 874-875. 10 Dr. Proctor also testified that the cigarette industry created

a similar disinformation campaign regarding filtered cigarettes. Given our conclusion that there was sufficient evidence to support James's claim for a conspiracy based on misrepresentations made about "light" cigarettes, we do not address whether there was sufficient evidence to support James's claim for conspiracy based on misrepresentations regarding filtered cigarettes.

7 avoided by the adoption of a reasonable alternative design . . .

and the omission of the alternative design render[ed] the

product not reasonably safe." Evans, 465 Mass. at 424, quoting

Restatement (Third) of Torts: Products Liability § 2 (b), at 14

(1998). James offered several alternative designs. We focus

our conversation on one of those designs, low-nicotine

cigarettes. The jury heard expert testimony from Dr. K. Michael

Cummings11 that low-nicotine cigarettes have .2 to .7 milligrams

of nicotine,12 whereas traditional cigarettes have 7.5 to 14

milligrams of nicotine, and that someone who starts smoking low-

nicotine cigarettes is unlikely to develop an addiction to

nicotine, making it easier for them to quit smoking. The jury

further heard that the technology to remove the high levels of

nicotine from cigarettes existed long before Pamela began

smoking. Based on this evidence, the jury reasonably concluded

that there was a reasonable alternative design. See, e.g.,

Evans, 465 Mass. at 431-439.13

11 Dr. Cummings is a professor in the department of psychiatry and behavioral science at the Medical University of South Carolina and is the Director of the Tobacco Cessation service there. 12 Dr. Cummings explained that low-nicotine cigarettes are very

different from the "light" cigarettes previously marketed, which he testified were "more like normal cigarettes in terms of delivery of nicotine." 13 Where the evidence regarding low-nicotine cigarettes was

sufficient to affirm the jury's verdict on this claim, we do not address the two other alternative designs proposed by James: non-inhalable cigarettes and heat-not-burn cigarettes.

8 R.J. Reynolds's argument to the contrary is unavailing.

R.J. Reynolds argues that low-nicotine cigarettes suffer from

the same defect as traditional cigarettes, in that they are

inhalable and if smoked in sufficient quantities also cause lung

cancer. However, there was evidence that traditional cigarettes

suffer from another defect, their addictiveness, and that had

Pamela not been addicted to cigarettes, she would have stopped

smoking, thereby reducing her chances of dying of lung cancer.

Thus, a low-nicotine cigarette that eliminated this defect was a

reasonable alternative design that would have reduced the

foreseeable risks of harm posed by the product.

d. Violation of G. L. c. 93A. R.J. Reynolds argues that

James's c. 93A claim was limited to conduct occurring at least

after 1979,14 when the Legislature amended c. 93A to broaden its

scope. See Evans, 465 Mass. at 464, citing Hershenow v.

Enterprise Rent-A-Car Co. of Boston, Inc., 445 Mass. 790, 797-

798 (2006). Regarding James's conspiracy claim, R.J. Reynolds

argues that the evidence was insufficient for the period after

1979 because the risks of smoking became more well known as time

went on, and that it was therefore speculative to infer that

14In a footnote, R.J. Reynolds argues that the claim "[a]ctually . . . should be limited to conduct that occurred after July 7, 1983." We need not address this argument, as the trial judge found that R.J. Reynolds's unfair and deceptive acts and practices continued after 1983, and as we explain in the text, there was evidence to support this finding.

9 Pamela relied on anything R.J. Reynolds said after 1979. This

argument does not view the evidence in the light most favorable

to James. As we have discussed, there was evidence that, in

1987, Pamela relied on the disinformation campaign regarding

"light" cigarettes and switched to Winston lights as a

"healthier" option and "a road to quitting." Regarding James's

breach of warranty claim, R.J. Reynolds argues that with the

passage of time, it became less likely that Pamela could have

avoided her injuries by using one of the proffered alternative

designs.15 Again, this argument does not view the evidence in

the light most favorable to James, as there was evidence that

each decade that Pamela smoked contributed to her lung cancer.

2. Punitive damages. Where we have reversed on James's

claim for negligent marketing, we must also vacate the jury's

award of punitive damages, which was based on findings that R.J.

Reynolds acted in a manner that was (1) malicious, willful,

wanton, or reckless and (2) grossly negligent.16 On the record

15 As R.J. Reynolds clarified in its reply brief, its argument on this point is that "by 1979, [Pamela] had already been smoking for about a decade, and there is no evidence from which to reasonably infer that Reynolds's conduct thereafter (as opposed to before) is what caused her injury and death." 16 We are unpersuaded by James's argument that R.J. Reynolds

waived the issue by failing to object to the jury verdict form. This argument is unavailing where R.J. Reynolds does not challenge the jury verdict form, and instead argues that where we have reversed on James's negligent marketing claim, the award of punitive damages must be vacated. On this point, R.J. Reynolds's motions for directed verdict and for judgment

10 before us, we cannot ascertain whether the jury's findings on

these points were based on R.J. Reynolds's acts in marketing

cigarettes to minors, in conspiring with the cigarette industry

to mislead the public, in failing to adopt a reasonable

alternative design, or all of the above. Where the jury may

have based at least some portion of the punitive damages on R.J.

Reynolds's acts in marketing cigarettes to minors, the award of

punitive damages must be vacated. See, e.g., Evans, 465 Mass.

at 448; Bain v. Springfield, 424 Mass. 758, 769 (1997).17

3. Statutory prejudgment interest. R.J. Reynolds raises

two additional arguments regarding the statutory prejudgment

interest that was applied to the award of compensatory damages.

First, R.J. Reynolds argues that the current statutory rate of

twelve percent per annum is unconstitutional. However, the

Supreme Judicial Court recently addressed this argument and

concluded that the statutory rate of twelve percent per annum

survived rational basis review. See Greene v. Philip Morris

notwithstanding the verdict preserved the issue. See, e.g., Bain v. Springfield, 424 Mass. 758, 761-762 (1997) (where two of three possible bases for punitive damages were held improper, motion for directed verdict that evidence was insufficient preserved argument that punitive damages were excessive). 17 The jury's award of compensatory damages stands on different

footing, as "a jury's award of compensatory damages may be affirmed on appeal on one theory of liability even where an appellate court finds instructional error or insufficiency of evidence as to another theory." Evans, 465 Mass. at 423 n.7.

11 USA, Inc., 491 Mass. 866, 884-885 (2023). We are bound by that

conclusion.

Second, R.J. Reynolds argues some of the damages awarded

were intended to compensate James, as well as Pamela's four

children, for future harm -- for the "loss of services,

protection, care, assistance, society, companionship, comfort,

guidance, counsel, and advice of [Pamela]" -- and that the trial

court erroneously applied statutory prejudgment interest to

these compensatory damages. R.J. Reynolds relies on Conway v.

Electro Switch Corp., 402 Mass. 385, 391 (1988), in which the

Supreme Judicial Court held that in G. L. c. 151B cases,

statutory prejudgment interest could not "be said to apply to an

award of damages based on lost earnings and benefits occurring

after the date of judgment." However, as this court has since

noted, the holding in Conway was specific to c. 151B cases. See

Kuppens v. Davies, 38 Mass. App. Ct. 498, 499-500 & n.6 (1995).

In this tort action, G. L. c. 231, § 6B, required the trial

court to compute the statutory prejudgment interest on the

entire award of compensatory damages. See id.

4. Conclusion. So much of the judgment as holds R.J.

Reynolds liable for negligent marketing is reversed, and the

12 award of punitive damages is vacated and remanded for a new

trial. In all other respects, the judgment is affirmed.

So ordered.

By the Court (Meade, Desmond & Hand, JJ.18),

Clerk

Entered: May 30, 2023.

18 The panelists are listed in order of seniority.