Las Vegas Sun

March 28, 2024

COURTS:

Burden of proof rides on cigarette injury case

Outcome likely to affect future liability claims

A wrongful death lawsuit filed against a tobacco company could have a far-reaching effect on product liability law in Nevada.

At issue is whether defendants, in this case Philip Morris Inc., should bear the burden of proving that additional product warnings would not have prevented injury or death.

Currently, plaintiffs bear the burden of proof.

The family of Pamela Rivera, a Las Vegan who died of lung cancer, has sued the cigarette maker, alleging that company warnings about its product were inadequate. Sterner warnings, Rivera’s family argues, would have prompted Rivera, who began smoking in 1969 at age 13, to quit.

Mark Johnson, a Seattle, Wash., attorney representing the Rivera family, told the Nevada Supreme Court on Tuesday that Philip Morris hid the fact that its cigarettes were a drug “designed to deny free will.” The company never warned before Rivera’s death in January 1999 that cigarettes are addictive and can cause cancer, Johnson said.

The family argues that Philip Morris should have to prove Rivera would have ignored additional warnings.

But Gregory Stone, a Los Angeles attorney representing the cigarette company, told the court Rivera knew the dangers and chose to smoke anyway and that there’s no evidence additional warnings would have changed that.

Health warnings have been included on cigarette packaging since 1966, Stone said. In later years, warnings stated that smoking can cause lung cancer, heart disease and emphysema and complicate pregnancy, he said.

To presume Rivera would have heeded additional warnings is unfair and illogical, Philip Morris says, because millions of consumers are aware of the dangers posed by cigarettes and continue to smoke.

The case, filed in federal court in Las Vegas, was sent to the Nevada Supreme Court to resolve the “heeding presumption” issue: whether the presumption should be that Pamela Rivera would have heeded additional warnings about the dangers of cigarettes.

The burden is currently on those who file the suit to show the injured party would have heeded more definitive warnings.

Both sides agree the court’s ruling could have a big effect.

Attorney Clark Vellis of Reno, who filed a brief supporting Philip Morris, said: “The resolution of this question would also have an impact on every single product liability case filed in the state of Nevada,” answering the question “as to who has the burden of proving causation in a strict liability failure-to-warn case.”

Philip Morris and its allies in the case argue that the state Supreme Court should not overturn decades of precedent. The Nevada Legislature has considered the issue and elected not to change the law, they say.

“To presume that a warning would be heeded when millions of consumers use the product with full awareness of the risks would fly in the face of everyday reality,” Vellis wrote in the brief.

According to court documents, Rivera, who had a two-pack-a-day habit, tried to quit smoking by using injections, New Year’s resolutions, nicotine gum, hypnosis and nicotine patches. Rivera’s husband, Joe, is prepared to testify his wife would have stopped if the cigarette company had issued adequate warnings.

Gerald Gillock, a Las Vegas attorney who wrote a brief in support of the Rivera family, said Philip Morris admitted after 30 years that cigarettes were addictive and can cause cancer. “An abstract warning of a vague health risk is decidedly different than an express admission by a manufacturer that its product addicts and kills,” Gillock said.

The court is considering the arguments and will rule later.

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