In Summerlin v. Philip Morris USA, et al., 1581-cv-5255, following a five-week trial before Judge Heidi Brieger, the jury returned a verdict in favor of the plaintiff amounting to $43,100,000. Three defendants remained through verdict; however, the jury found that only R.J. Reynolds was liable. The jury found that defendants, Hampden Automotive and Philip Morris USA, breached the implied warranty of merchantability for selling a defectively designed product, but neither were found to be a substantial contributing cause of Mr. Summerlin’s lung cancer. Plaintiff’s award was allocated as follows: $5,300,000 for pain and suffering; $3,500,000 for loss of consortium; $2,500,000 for loss of services to Joanna Summerlin (Spouse); $1,800,000 for loss of services to Christopher Summerlin (Son); and $30,000,000 in punitive damages.

Plaintiff was represented by Michael Shepard of the Shepard Law Firm, Boston, MA and Jerome Block of Levy Konigsberg, New York, NY. Philip Morris USA was represented by Bill Geraghty of Shook Hardy Bacon, Miami, FL; R.J. Reynolds was represented by Mark Belasic and Kaitlin Kline of Jones Day, Cleveland, OH; and Hampden Automotive was represented by David Governo and Vincent DePalo of Smith Duggan, Boston, MA.

Plaintiff’s claimed that Mr. Summerlin’s lung cancer and subsequent death was caused by his exposure to asbestos-containing brakes supplied by Hampden Automotive and as a result of smoking cigarettes manufactured by Philip Morris USA and R.J. Reynolds. By way of background, Mr. Summerlin was diagnosed with lung cancer on March 25, 2015 and passed away on October 16, 2015. Mr. Summerlin had a cumulative 125 pack-year smoking history, comprised of: Kool cigarettes, from approximately 1957 through 1982; Salem cigarettes, from approximately 1982 through 1984; and Marlboro Menthols, from approximately 1985 until he stopped smoking in August of 2009.

Mr. Summerlin alleged that he was exposed to Hampden Automotive’s asbestos-containing refurbished brakes while working as an automotive mechanic at New England Brakes, located in Boston, MA, from 1959 through 1964. Evidence presented at trial by the plaintiff suggested that Mr. Summerlin performed brake repairs with asbestos-containing brakes on three to four vehicles every day over a six-day work week. Specifically, Mr. Summerlin claimed that Hampden Automotive failed to warn him of the hazards of working with asbestos-containing brakes during the course of his employment as a mechanic. Moreover, Mr. Summerlin alleged that his exposure to asbestos through his work with Hampden Automotive’s brakes was a substantial contributing cause of his lung cancer and death. The jury found that Mr. Summerlin should have been warned of the potential dangers associated with working with an asbestos-containing product because Hampden Automotive, during the relevant time period, should have been generally aware of the potential hazards associated with the use of asbestos. Accordingly, the jury found that Hampden Automotive breached the implied warranty of merchantability, because its brakes were defective due to the lack of a warning concerning asbestos. However, the jury ultimately concluded that exposure to Hampden Automotive’s brakes was not a substantial contributing cause of Mr. Summerlin’s lung cancer and subsequent death, concluding that Hampden Automotive was not liable for Mr. Summerlin’s injuries.

Additionally, Mr. Summerlin alleged that both Philip Morris USA and R.J. Reynolds breached their implied warranty of merchantability through the sale of defectively designed cigarettes. Also, Mr. Summerlin claimed that R.J. Reynolds breached its warranty of merchantability by failing to adequately warn consumers of the dangers of smoking prior to July 1, 1969, the date the amended Federal Cigarette Labeling and Advertising Act mandated cigarette warnings. Moreover, Mr. Summerlin claimed that R.J. Reynolds fraudulently misrepresented health and safety information related to the hazards of their cigarettes, which could have aided him in rendering an informed decision pertaining to his choice to smoke. Mr. Summerlin did not, however, allege against Philip Morris USA either the claim of breach of implied warranty of merchantability pertaining to warnings or the claim of fraudulent misrepresentation because his personal smoking timeline and federal legislation pertaining to warnings rendered both inapplicable. Accordingly, though the jury found that both Philip Morris USA and R.J. Reynolds breached their implied warranty of merchantability through their sale of defectively designed cigarettes to Mr. Summerlin, it found that only R.J. Reynolds’ defective design was a substantial contributing cause of the plaintiff’s injuries. Furthermore, only R.J. Reynolds was found negligent in the design of its cigarettes, and the jury concluded that such negligence was also a substantial contributing factor to plaintiff’s injuries. Lastly, the jury found that R.J. Reynolds made false statements and concealed material facts about the dangers of smoking with the intent to induce Mr. Summerlin to use its product. Ultimately, the jury found that Mr. Summerlin’s reliance on R.J. Reynolds’ false statements substantially contributed to his illness and death. As such, these determinations lead the jury to find R.J. Reynolds liable.

While recently other plaintiffs have tried to verdict cases against both tobacco and asbestos product manufacturers, this case represents the first trial in Massachusetts in which a plaintiff alleged that both asbestos exposure and smoking together synergistically contributed to cause a plaintiff’s injury. The jury ultimately found, however, that only Mr. Summerlin’s cigarette smoking substantially contributed to cause his lung cancer. While it is certainly a positive development for asbestos defendants that the jury determined that Mr. Summerlin’s alleged daily asbestos exposure over a five year period was not sufficient to be considered a substantial contributing factor to the development of his lung cancer, it should be troubling to those same defendants that the jury found that Hampden’s failure to warn about the potential hazards of asbestos during the late 1950s and early 1960s, a time period long before there were any medical reports concerning disease in automotive mechanics, resulted in a breach of the implied warranty of merchantability.