Mass. court affirms big verdict against Big Tobacco

Autodesigner via Wikimedia Commons CC0 1.0

Last week, the Massachusetts Supreme Judicial Court affirmed a lung cancer victim's verdict against Marlboro maker Philip Morris (PM).

Arising from verdict in a $37m case against PM and co-defendants, including R.J. Reynolds Tobacco Co. and Star Markets, the decision broke no new ground, but might be instructive for students of product liability.

On appeal, PM did not "dispute that the plaintiffs introduced sufficient evidence of agreement between it and the other cigarette entities to deceive the public about the dangers of smoking.... Further, [PM did] not dispute the evidence of medical causation, i.e., that smoking causes the type of cancer from which Greene suffered."

Rather, PM asserted that the plaintiff failed to connect causally her choice to smoke to specific misrepresentations. The court wrote that PM viewed the evidence too narrowly, and that the plaintiff sufficiently "met this requirement by introducing evidence of her detrimental reliance on the conspiracy's misrepresentations regarding filtered cigarettes. [PM] represented that such products, including Marlboro Lights, delivered lower tar and nicotine and were a healthier alternative to regular cigarettes."

The plaintiff also met the burden of proving causation on a count of civil conspiracy. "The conspirators expressly misrepresented to the public that they would not have been in the business of selling cigarettes if cigarettes were truly dangerous," the court reasoned. Consequently, "the jury could have found that [the plaintiff] would have smoked less, or quit sooner, absent the conspiracy's campaign of fraud and deception."

PM also pointed to the court's 2021 adoption of the Third Restatement approach to causation (on this blog) to argue that the jury was erroneously instructed on "substantial causation." The court ducked the question by finding that counsel had not preserved their objection to the jury instructions.

Finally, the court upheld the award as against PM challenges to the trebling of damages under Massachusetts consumer protection law and the commonwealth's 12% judgment interest rate.

The case is Greene v. Philip Morris USA Inc., No. SJC-13330 (Mass. May 9, 2023). The unanimous opinion was authored by Justice Scott L. Kafker, who also wrote the opinion in the 2021 causation case.

Sandy Hook father wins $450,000 in Wisconsin defamation case against conspiracy theorists

A Sandy Hook parent won a $450,000 defamation award in Wisconsin last week, when I was out of town.  The case is interesting not only as a collateral installment in the litigation aftermath of the 2012 Sandy Hook school shooting, but as an installment in the legal system's ongoing grappling with misinformation in mass media, so-called "fake news."

Lenny Pozner, father of decedent six-year-old Noah Pozner, won his defamation suit against Sandy Hook deniers James H. Fetzer and Mike Palecek in June, on summary judgment.  A jury trial was had only on the question of damages.  In the complaint, Pozner claimed severe mental distress, besides the requisite reputational harm.  Now This News has more about Pozner's ordeal, beyond the traumatic loss of his son:

The crux of the falsity in the defamation claim was defendants' assertion that Pozner was in possession of and distributing a falsified death certificate.  Attached to the complaint, Noah Pozner's death certificate reports the cause of death, "Multiple Gunshot Wounds."  Lenny Pozner alleged that the defendants' assertion appeared in a 2016 book, edited by Fetzer and Palecek, Nobody Died at Sandy Hook, and on Fetzer's conspiracy-theory blog.  The book publisher earlier settled and agreed to stop selling the book.

Fetzer, who resides in Wisconsin, is, amazingly, a distinguished professor emeritus of philosophy at the University of Minnesota Duluth.  His work included JFK conspiracy research.  Fetzer's university home page bears this disclaimer:

James Fetzer is a UMD Philosophy Professor Emeritus and conspiracy theorist. He retired from UMD in 2006. His theories are his own and are not endorsed by the University of Minnesota Duluth or the University of Minnesota System.  As faculty emeriti, Fetzer's work is protected by the University of Minnesota Regents Policy on Academic Freedom, which protects creative expression and the ability to speak or write on matters of public interest without institutional discipline or restraint. 

The university deserves a lot of credit for respecting academic freedom even in these challenging circumstances.  Fetzer meanwhile has cast the loss in Wisconsin as a book banning and offense to freedom of the press.

Fetzer and Palecek have books for all occasions.  One title, still for sale, is And Nobody Died in Boston Either, referring to the 2013 Boston Marathon bombing.  Three people were killed at the scene in Boston, and more than 200 were injured.

Meanwhile on the Sandy Hook litigation front, the Connecticut litigation against Remington Arms is still pending cert. petition in the U.S. Supreme Court.  Remington seeks to nullify the Connecticut Supreme Court ruling allowing victim-family plaintiffs a thin-reed theory to circumvent federal statutory immunity.  Plaintiffs filed their responsive brief on October 4, and Remington filed a reply on October 18.

[UPDATE, Nov. 13, 2019: The U.S. Supreme Court denied cert. in the Remington case, so it will go back to the trial court in Connecticut.]

Conn. high court hears argument after non-dismissal of Sandy Hook parent suit against Alex Jones

As reported in my Sandy Hook update a couple of weeks ago, today was the day for Connecticut Supreme Court oral arguments over a discovery dispute in the Alex Jones case.  The Connecticut Supreme Court usually gets audio up within a day.  Check here. [UPDATE: Now posted and embedded below.]

Alex Jones (by Sean P. Anderson CC BY 2.0)

This is the defamation lawsuit against Jones and InfoWars brought by Sandy Hook parents for the broadcasters' assertions that the Sandy Hook school shooting was a hoax, perpetrated in media with the help of "crisis actors."  Megyn Kelly, making her mark after jumping ship from Fox, (in)famously interviewed Jones on this matter in 2017.  You can watch that weird-meets-weirder interview at NBC.  Kelly and NBC managed to infuriate both Jones and Sandy Hook advocates.  The latter objected to giving Jones the platform to sell his brand of crazy and included a few paragraphs on the interview under the "Campaign of Abuse" heading in the May 2018 complaint.

The case is Lafferty v. Jones, No. UWY-CV18-6046436-S.  The complaint is available from the Connecticut docket.  Besides defamation and defamation per se, plaintiffs claim false light, negligent and intentional infliction of emotional distress, deceptive trade practices under statute, and civil conspiracy on the common law claims.  After removal to and return from federal court, the Connecticut trial court allowed limited discovery over the defense's anti-SLAPP motion.  Thus we are in Hartford.

News coverage so far is lackluster.  "Lawyer Norman Pattis told the Connecticut Supreme Court on Thursday that Jones exercised his free speech rights," Dave Collins wrote for The AP (e.g., via WaPo) this afternoon.  To be fair, this appeal focuses on a discovery compliance dispute, which is tangled up in First Amendment considerations, but does not squarely present the anti-SLAPP problem.  The Hartford Courant has more detail on the merits and procedural posture.

Meanwhile...

Also as reported earlier, the Sandy Hook gun manufacturer liability suit against Remington is pending with a defense cert. petition in the U.S. Supreme Court, since the Connecticut Supreme Court allowed plaintiffs a narrow theory to circumnavigate Remington's federal statutory immunity under the Protection of Lawful Commerce in Arms Act (at The Savory Tort). That case is now Remington Arms Co. v. Soto, No. 18-A-1185.

Amici in Remington Arms piled in to the Court on September 3 and 4 and are collected on the case page at SCOTUSblog.  The NRA, 22 members of the U.S. House, the State of Texas, the National Shooting Sports Foundation, the Gun Owners of America, and Professors of Second Amendment Law filed briefs.  The latter comprise "Randy Barnett (Georgetown), Royce Barondes (Missouri), Robert Cottrol (George Washington), Nicholas Johnson (Fordham), Joyce Malcolm (George Mason), George Mocsary (Southern Illinois), Michael O’Shea (Oklahoma City), Joseph Olson (Mitchell Hamline), Glenn Reynolds (Tennessee), Eugene Volokh (UCLA), and Gregory Wallace (Campbell)," with counsel for the Firearms Policy Coalition, the Independence Institute, and the Cato Institute submitting the brief.

Oral Argument in Lafferty