In Haglund v. Philip Morris, Inc., No. 2001-02367, 2011 WL 2737240 (Mass. Super. Ct. Apr. 20, 2011), plaintiff sued the defendant tobacco company in Massachusetts Superior Court for breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability) and wrongful death on behalf of her deceased relative, a smoker who died of lung cancer. Plaintiff alleged that defendant, with knowledge of the dangers posed by cigarettes, consciously designed its products with addictive nicotine levels even though a safer, reasonable alternative design existed at the time—namely, a non-addictive cigarette, achievable through “nicotine extraction.” Plaintiff alleged that had defendant manufactured its cigarettes using the alternative design, decedent would not have become addicted and died. Defendant responded that it was not possible to reduce the amount of nicotine in delivered smoke to the level required to make a cigarette non-addictive, and in any event such a reduced nicotine cigarette would be inferior in taste and other qualities so that it would not be attractive to consumers.

In support of her claim, plaintiff offered an expert to testify that it was technically feasible for defendant to manufacture a cigarette that was both non-addictive and comparable in taste and other properties to a regular cigarette. As trial approached, defendant moved in limine to preclude plaintiff’s expert’s testimony because: (1) it was based on speculation, rather than data of the type that scientists ordinarily rely upon, and (2) the scientific principles he relied upon were not reliable. The court granted the motion in part, ruling plaintiff’s expert could testify that it was technically feasible to extract nicotine to below the level of addictiveness and add flavors to such a de-nicotinized cigarette, but not as to how the resulting product would be perceived by smoking consumers.

In so ruling, the court noted that under Massachusetts law, the proponent of expert testimony must establish five foundational requirements: (i) the testimony will assist the trier of fact; (ii) the witness is qualified as an expert in the relevant area; (iii) the witness’ opinion is based on facts and data in the record, not speculation; (iv) the opinion is based on reliable principles or methods; and (v) the expert has applied the principles and methods in a reliable manner to the facts of the case. Here, the proffered expert had extensive education in the field of chemistry, and equally extensive training and experience in the process of chemical extraction. Regarding de-nicotinization, the expert’s specific opinon that defendant could have produced a cigarette with a nicotine level of 0.0001%, far below the threshold for addictiveness, was based on supporting research documents and data. Similarly, with respect to the issue of flavor, the court found data and research supporting the expert’s testimony that it was feasible to add flavors back to a product after it had been denicotinized, and that the resulting product would still resemble an ordinary cigarette in physical appearance.

With respect to the rest of the expert’s testimony, however, the court found there were insufficient data “to make the leap to offer expert witness opinion testimony about how smoking consumers would view the de-nicotinized product.” The only research cited by the expert in support of his opinion that a de-nicotinized cigarette would be accepted by consumers was a 1975 study showing that 75% of smokers of a specific brand of low tar and nicotine cigarettes produced at that time viewed the cigarettes as comparable in taste and flavor to the brand’s regular cigarettes. The nicotine levels of the cigarettes involved in that study, however, were far in excess of the 0.0001% level regarding which the expert proposed to testify.