Argument: Acceptance of Known Risk

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Baldassare v. British American Tobacco Argentina [Argentina] [December 28, 2020]

The plaintiff brought an action against British American Tobacco (BAT) Argentina, seeking damages for all the health problems allegedly resulting from his use of tobacco products. In particular, he sought compensation for a heart attack he suffered. He claimed that when he began smoking, the advertisements were misleading and did not warn him about the possible health problems caused by the substances in cigarettes. The judge determined that: (i) the case was not time-barred, (ii) tobacco consumption was probably one of the reasons for the heart attack, and (iii) the victim did not assume the risks of smoking because he was not sufficiently well informed, as required by the country's consumer protection law, and because he was not free to direct his actions due to the addiction. The lower court determined that BAT had to pay compensatory damages and also a fine as punitive damages.

Pearson v. Philip Morris, Inc. [United States] [June 19, 2013]

Buyers of Marlboro Lights cigarettes sued Philip Morris arguing that the company misrepresented whether Marlboro Lights had lower tar and nicotine levels between 1971 and 2000. The individuals asked for class action status to sue the company under the Oregon Unlawful Trade Practices Act. In this decision, the court of appeals overturned an earlier decision by the trial court. The appeals court said that it would be possible for the case to proceed as a class action because there are a number of common issues among the class members. The court also found that the trial court made a mistake in ruling that federal law preempted the plaintiffs’ claim. The appeals court sent the case back to the trial court asking the court to reassess whether a class action is the best method for deciding the case and, if not, if there are common issues that can be tried together in what is known as an “issue class.”

Alroi v. Philip Morris [Israel] [November 27, 2012]

Smokers of cigarettes marked as “light,” sued Philip Morris, a tobacco company, for violations of the Consumer Protection Law by presenting the product to be less harmful than other cigarettes. The court denied the certification of the claim as class action, stating that the smokers knowingly accepted the risk because all cigarettes packets—including “light” cigarettes—contain warnings of the dangers of smoking while no misrepresentation was made by the tobacco company that “light” cigarettes are less harmful than non-“light” ones. The court added that the declaratory relief became moot, since the state bars marking cigarettes as “light,” “mild,” or “low tar.”

R.J. Reynolds Tobacco Co. v. (Jimmie Lee) Brown [United States] [September 21, 2011]

The widow of a smoker sued R.J. Reynolds Tobacco Company (RJR) seeking damages for her husband’s death. The appeals court upheld a jury verdict finding RJR 50% responsible for the smoker’s death. The appeals court found that the trial court properly applied the findings from the earlier class-action lawsuit (Engle v. Liggett Group, Inc.), which determined that RJR was negligent by failing to exercise reasonable care in the manufacture of its cigarettes and that it was strictly liable by selling defective and unreasonably dangerous cigarettes. Therefore, the appeals court ruled that the widow in this case was only required to prove the remaining elements of legal causation and damages. Because the jury was asked to decide each of those questions individually (e.g., that the plaintiff was addicted to RJR cigarettes, that this addiction caused his death, that the unreasonably dangerous cigarettes caused his death, and that RJR’s negligence was a legal cause of his death), the appeals court found that the trial court properly applied the findings from the class-action decision in Engle.

Ministério Público, et al. v. Souza Cruz SA [Brazil] [August 04, 2011]

The plaintiffs brought a lawsuit against Souza Cruz, a tobacco company, seeking damages for the death of their father, who allegedly developed a habit of smoking because of heavy advertisement and lack of information on the contents and side effects of cigarettes. The lower court dismissed the case and the plaintiffs appealed to the higher court with the intervention of the Public Prosecutor's Office. The plaintiffs argued that they were not given due process of law to produce evidence before the court and claimed damages. The higher court found that the plaintiffs’ father had smoked out of free will and that he had sufficient information on the consequences of tobacco consumption.  The Court affirmed the lower court's decision and dismissed the appeal.

Caronia, et al. v. Philip Morris USA, Inc. [United States] [January 13, 2011]

The plaintiffs, smokers over the age of fifty who had smoked a certain number of packs of Marlboro Cigarettes and who were not currently suffering from or actively under investigation for lung cancer, sought the establishment of a medical monitoring program at the expense of Marlboro's manufacturer, Philip Morris USA, Inc. As justification for the medical monitoring program, the plaintiffs alleged that the defendant purposely chose not to manufacture and sell a cigarette with less dangerous levels of "tar," which allegedly put them at risk of developing lung cancer. The defendant argued that the medical monitoring request should be dismissed, among other reasons, because the State of New York had not previously granted such requests where the plaintiffs did not yet exhibit the physical symptoms of an illness, and moreover, because the products it sold did not have a particular defect, as required of successful medical monitoring suits. The Court dismissed the case in favor of the defendant tobacco company. In particular, the Court found that, although a medical monitoring program would have been reasonable to provide to plaintiffs who did not yet exhibit physical symptoms of lung cancer, the plaintiffs did not adequately demonstrate that the conduct of the tobacco company constituted a "substantial factor" in causing them to consume the amount of tar that they did.

Alegre v. Souza Cruz S A [Brazil] [December 30, 2010]

The plaintiff, Dina Ribeiro Mont Alegre, filed a lawsuit against Souza Cruz, a tobacco company, seeking damages for health problems she was suffering allegedly due to tobacco consumption. She claimed that when she began smoking, the advertisements were misleading and did not warn her about the possible health problems caused by the substances in the cigarettes. The Court ruled in favor of the tobacco company, finding that the consumer has the liberty of choosing to smoke and that, at the time the plaintiff had started smoking, tobacco companies were not obligated to warn consumers in their advertisements. Therefore, the Court exempted the defendant of any responsibility.

Salazar Jiménez v. Costa Rica [Costa Rica] [May 14, 2010]

Following the death of her husband, the plaintiff sought compensation from the State of Costa Rica for damages caused by her husband's tobacco addiction. The plaintiff claimed that the State was liable for her husband's death for improperly regulating the tobacco industry, the omission of information, negligence, and breaking its duties to protect its citizens from the harms of tobacco. The plaintiff also claimed that the State failed to meet its obligations under the Framework Convention on Tobacco Control (FCTC) by failing to adequately regulate warnings, packaging, and advertising of tobacco, as well as conducting inadequate preventive campaigns. The plaintiff argued that the Costa Rican Tobacco Regulation Law paled in comparison to the requirements of the FCTC. The Court ruled that there was insufficient evidence demonstrating negligence by the State in protection the people from the harms of tobacco, as was required by the law and the FCTC. Consequently, the Court concluded that the plaintiff's addiction resulting in his death derived from his own decision to smoke and that the State carried its responsibility properly. The appeal was dismissed.   

Silva, et al. v. Philip Morris Brasil, Ltda. [Brazil] [February 18, 2010]

The plaintiffs sued Philip Morris Brasil seeking damages for the death of their relative allegedly caused from tobacco consumption. Specifically, the plaintiffs alleged that misleading advertisements about the attractiveness and lifestyle benefits of tobacco products induced the deceased to smoke. The trial court and the appeals court ruled in favor of Philip Morris, finding that the victim had smoked out of his own free will. The plaintiffs then appealed to the Superior Court of Justice. The Superior Court found the appeal inadmissible because the plaintiffs alleged a violation of the Consumer Protection Code, which was not in effect at the time the plaintiffs' relative began smoking. The Superior Court refused plaintiffs' request to re-examine the facts the case. The appeal was dismissed and the higher court's decision maintained.

Molina, et al. v. Dimon do Brasil Tabacos Ltda, et al. [Brazil] [July 20, 2008]

Plaintiffs, small farmers growing tobacco, brought action against tobacco companies, claiming that the companies had acted in bad faith by providing the plaintiffs misleading information on the plantation systems and failing to provide technical support promised to the plaintiffs. The plaintiffs sought the annulment of the contract with the companies and compensation for economic loss allegedly resulting from the use of toxic products in the plantations. The companies alleged that they had not acted in bad faith, claiming that all the technical support had been provided and that the loss of the plantations was due to climate conditions that were beyond their control. The Court ruled in favor of the plaintiffs, finding that the companies had known that the region was not adequate for tobacco plantations, but decided to nevertheless pursue the idea to benefit from the labor of semi-illiterate small farmers who could be paid less than those in other regions. The Court ordered the companies to pay damages and annulled the contract.