Court rejects tobacco ‘choice’ defense
BOSTON — The state’s highest court on Thursday rejected one of the tobacco industry’s most successful defenses in wrongful death lawsuits.
The state Supreme Judicial Court ruled that the companies cannot shield themselves from liability simply by arguing that smokers should know that cigarettes are dangerous.
The ruling came in a wrongful-death lawsuit filed against Philip Morris Inc. by Brenda Haglund, whose husband died of lung cancer in May 2000.
The suit was dismissed by a lower court judge. But the Supreme Judicial Court reinstated Haglund’s lawsuit, ruling that the “personal choice defense” often used by tobacco firms cannot be used in Haglund’s case. The court said that type of defense can only be used if a reasonably safe product was used in an unreasonable way.
“Here, however, both Philip Morris and the plaintiff agree that cigarette smoking is inherently dangerous and that there is no such thing as a safe cigarette. Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes,” the court 7-0 ruling said.
The court said it would not block the use of the personal choice defense in every cigarette-related case. The defense might be used when a person’s behavior was “overwhelmingly unreasonable,” such as when someone with emphysema decided to start smoking.
Richard Daynard, a Northeastern University law professor, said the ruling could have broad implications. “I think it’s the first time that any court in the country has squarely held that as a matter of law, except in extraordinary and unlikely cases, this (personal choice) defense cannot be used,” Daynard said.
Paul E. Nemser, an attorney for Philip Morris, said the ruling was limited to one of many defenses available and does not have the broad reach suggested by Daynard.