Appeals court upholds cigarette suit

Monday, Jan. 31, 2005 | 8:59 a.m.

CARSON CITY -- A federal appeals court has reinstated part of a lawsuit brought in Las Vegas against Philip Morris by a man whose wife died of lung cancer after 30 years of smoking Marlboro cigarettes.

The 9th U.S. Circuit Court of Appeals said Joe Rivera should have the chance to pursue his claim that the tobacco company should have provided more information to the public on the dangers of smoking, contracting lung cancer and that cigarettes were addictive.

U.S. District Judge James Mahan had granted a pre-trial summary judgment in favor of Philip Morris on all claims.

The appeals court Friday, in a decision written by Judge Jerome Farris, said a jury could "find that Philip Morris had an obligation to warn consumers of the health risks of smoking outside of packaging, advertising and promoting."

The appeals court said it would be up to a jury to decide which of the expert testimony to believe or reject.

The case returns to Mahan's court.

Rivera maintained Philip Morris should have used such things as public service announcements to adequately warn consumers of the hazards.

In 1965 Congress ordered cigarette companies to put a warning on packages that smoking is hazardous. The law was strengthened in 1969 but it pre-empted certain claims against the tobacco companies.

According to pre-trial depositions, Pamela Rivera started smoking in 1969 because her friends smoked. After her death, her husband brought suit on behalf of himself and their two children.

The appeals court said that to overturn the summary judgment Rivera needed to present evidence showing the ordinary consumer was not aware of the link between smoking and lung cancer after 1969.

In the pre-trial procedure, Rivera produced a report from Marvin E. Goldberg that showed public opinion polls conducted in 1970 and 1999 that found that 53 percent of the smokers believed that smoking was not hazardous or that only heavy smoking was hazardous.

The Goldberg report also said that the tobacco industry knew that smoking was addictive but that very few consumers were aware of that.

Philip Morris submitted affidavits and reports from two experts that the hazards of smoking, including lung cancer and addiction, were commonly known well before 1969.

Rivera also claimed the cigarette company fraudulently suppressed information that might have convinced his wife to quit. But he admitted in pre-trial proceedings that no amount of warning would have induced her to give up smoking.

The appeals court upheld Judge Mahan's decision to grant summary judgment on the fraudulent concealment claim and on the count the tobacco company was guilty of misrepresentation.

Judge Farris wrote: "The record contains no admissible evidence identifying what statements attributable to Philip Morris the decedent actually saw, heard, or read and relied upon to support her decision to start and continue smoking."