Evans v. Lorillard Tobacco Co., 465 Mass. 411 (June 11, 2013), the plaintiff executor of his mother’s estate sued the defendant manufacturer of Newport cigarettes when his mother died of lung cancer after smoking Newports for approximately 40 years. Plaintiff asserted claims for negligence and breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability), among others, alleging Newports were defectively designed because they contained significant amounts of tar and nicotine while technology existed to create a product with zero or near-zero levels of these ingredients. Plaintiff’s experts identified three such products that had been on the market at various times, but conceded smokers would not likely purchase such alternative “cigarettes” except perhaps to a limited extent and only if all “ordinary cigarettes” were banned from the market.

At trial, the judge initially instructed the jury in connection with both the negligence and warranty counts that proof of a reasonable safer alternative design was required to prove a design defect, but in later instructions on the negligence count alone instructed that “you may but you are not required to consider whether there was a safer alternative design available.” The jury also was instructed that it “may also consider whether the Newport cigarettes met the consumer’s reasonable expectations as to its safety.” The jury found Newport’s design defective under both negligence and warranty theories and awarded $50 million for decedent’s pain and suffering, $21 million for decedent’s wrongful death and $81 million in punitive damages; the judge later reduced the compensatory award to $25 million for pain and suffering and $10 million for wrongful death.

Defendant appealed to the Massachusetts Appeals Court, and the Massachusetts Supreme Judicial Court (“SJC”) granted direct appellate review. The Court first held that, under Massachusetts law, to establish design defect liability in negligence or for breach of the implied warranty of merchantability, “the plaintiffs must show ‘an available design modification which would reduce the risk without undue cost or interference with the performance of the [product].’” In so holding, the Court quoted with approval § 2(b) of the Restatement (Third) of Torts: Product Liability and its comment f to this effect. Because the trial judge had erroneously instructed the jury that it “may,” but was not required to, consider the existence of a safer alternative design in deciding whether defendant was negligent, the Court vacated the jury’s finding of negligence liability.

On the warranty count, however, the trial judge did not commit the same error. Moreover, while the Court agreed in principle with defendant’s argument that it would be improper to impose categorical liability on all cigarettes by allowing plaintiff to propose a safer alternative design that is “not truly a cigarette,” it held the evidence at trial was more than sufficient to permit a reasonable jury to conclude that the ultra low-tar, low-nicotine cigarettes plaintiff proposed were a reasonable alternative even if they did not have the characteristics, i.e., significant levels of tar and nicotine, that are desired by consumers who are already addicted. The Court reasoned that the only subclass of consumers that must be considered when evaluating the reasonableness of the alternative design were those who were not yet addicted and thus retained the ability to make rational informed decisions about whether to smoke and what kinds of cigarettes to smoke; otherwise, the Court observed, “addictive chemicals would be the only substance whose presence in a product could not, as a matter of law, be found to constitute a defect in the product’s design, because there could be no reasonable alternative design that did not include them.” Interestingly, the Court did not cite any record evidence that even this subclass of consumers would find the virtually tar- and nicotine-free cigarettes proposed by plaintiff acceptable.

The Court then rejected defendant’s contention that as a matter of law a product cannot be unreasonably dangerous if the danger is not beyond that contemplated by the ordinary consumer. Instead, the Court held that, under the risk-utility balancing test embodied in § 2 of the Restatement (Third), the jury may consider consumer expectations as merely one factor, albeit an important one, in determining whether a product is unreasonably dangerous, so that the jury was instructed properly as to this issue.

The Court also rejected defendant’s argument that, in light of evidence decedent had not liked low-tar and -nicotine cigarettes when she tried them, plaintiff had not proved Newport’s design defect was a cause of her cancer. The Court stated that plaintiff was not required to prove decedent would have used the product if designed according to plaintiff’s alternative, but rather merely that the product’s defect, i.e., significant tar and nicotine, caused her harm. The Court did not address the likelihood that even if Newports had been designed differently plaintiff would still have suffered her disease as she would have chosen to smoke other regular cigarettes rather than the alternatively designed Newports.

The Court also discussed numerous other issues that are not addressed here for reasons of length, including: (1) whether for purposes of failure to warn claims, the risks of cigarette smoking became “obvious” after Congress mandated warning labels on all cigarette packages; (2) whether cigarette manufacturers who were part of issuing the 1954 “Frank Statement to Cigarette Smokers” voluntarily assumed a duty to research the health hazards of smoking and accurately disclose them to the public; (3) when a smoker’s design defect cause of action accrues for statute of limitations purposes; (4) excessiveness of the compensatory and punitive damages awards; (5) application of collateral estoppel based on the findings of the United States District Court for the District of Columbia in United States v. Philip Morris USA, Inc., 449 F. Supp.2d 1 (D.D.C. 2006); and (6) a variety of alleged trial errors relating to evidentiary matters and alleged bias.