COURTS:

Burden of proof rides on cigarette injury case

Outcome likely to affect future liability claims

Thursday, Dec. 4, 2008 | 2 a.m.

Carson City — 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.

Discussion: 5 comments so far…

By scouser

12/4/08 at 6:28 a.m.

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I knew in the 70's when I was a teenager that smoking gave you cancer so I chose never to smoke. These chancers are now trying to say they never knew what a load of rubbish. In this blame someone else society can't anyone accept their own stupidity.
By azsk8fan

12/4/08 at 6:47 a.m.

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This is just sheer nonsense - these people are just looking to get rich off of their dead relative. Give it a rest people.
By jfnance32

12/4/08 at 9:23 a.m.

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Plantiff argument: Our son was really, really, really dumb. He did not understand that warning that said that cigs causes cancer. He needed more and better warnings because he was soooooooooooooo dumb.
By KDR81

12/4/08 at 4:23 p.m.

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Did you know the FCC prohibited tobacco companies from advertising about filters and less tar back in the 30s and 40s on pretty bogus grounds.

People back then new cigerettes were bad and the Tobacco companies were trying to offer better less un-safe products which the government then forbid them to do.

That case should be thrown out and the lawyer sanctioned. Warnings were in place 3 years before she even started smoking.
By dvfisch

12/5/08 at 4:24 p.m.

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The bigger point here is that big tobacco has profited by exploiting people's addictions for many years. They should be required to pay recompense for the huge ills they have caused over and over again to our society as a whole.

They are nothing but drug dealers which have been legitimized by law.

They don't give a d%#n about anyone, why should we care what happens to them. It is not the plaintiff's here that are the real problem.

Ulimately, the Nevada Sup Ct is likely to rule in defendant's favor b/c of the larger implications on product liability cases in Nevada generally.