Allen, Harmon B.

English

University of Tulsa College of Law

Tulsa Law Review Volume 3 Issue 1 1966 Torts: Products Liability--Cigarette Manufacturer--Lung Cancer Harmon B. Allen Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr  Part of the Law Commons Recommended Citation Harmon B. Allen, Torts: Products Liability--Cigarette Manufacturer--Lung Cancer, 3 Tulsa L. J. 77 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol3/iss1/13 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact megan-donald@utulsa.edu. NOTES AND COMMENTSwith manufacturing whiskey, and a picture was taken of the accusedstanding next to his still. In each case the accused was not told or advisedthat posing for the picture was optional. The element of compulsion inthe Spencer case is the same as it was in the Alabama and Georgia cases.It arises where the accused feels he must obey the officer because he wasnot told he had a right to disobey him. For example, in the Spencer casethe accused had no choice whether he would perform the tests before themovie camera. This is what caused the motion picture of the coordinationtests to be tainted as evidence.This decision and others that preceded it in Oklahoma showconclusively that Oklahoma follows the more liberal interpretation of theprohibition against compulsory self-incrimination.,6 "The proper guidein the interpretation of the constitutional guaranty against compulsoryself-incrimination is not the probability of the evidence; but is the capa-bility of abuse."'1 It may be argued that convictions are hard to get if theprohibition is construed liberally. This may be true. However, the Okla-homa Constitution does not state merely that the accused cannot be com-pelled to testify; but says: 'No person shall be compelled to give evi-dence which will tend to incriminate him.' 8 As was held in the Spencercase, the term evidence in its ordinary meaning includes more than justtestimony. Therefore, it would seem that if the framers of the constitu-tion intended for it to mean only testimony, they would have used theterm testimony and not the term evidence.Expediency or zeal should not be the criteria when individual con-stitutional rights are involved. The court in the Spencer case is sayingthat law enforcement agencies should be more cognizant of the rightsof the accused during their investigation. As Chief Justice Warren statedin Spano v. New York: 19 "ITIhe police must obey the law while enforc-ing the law; that in the end life and liberty can be as much endangeredfrom illegal methods used to convict those thought to be criminals as fromactual criminals themselves."Gerald WeisTORTS: PRODUCTS LIABILY--CIGARxrrE MANUFACTURR-LUNG CANCER.In Pritchard v. Liggett & Meyers Tobacco Company,' plaintiffbrought suit against a cigarette manufacturer alleging that cancer2 of his16 See 28 R.C.L. Witnesses 5 20 (1921).17 Allen v. State, 183 Md. 603, 39 A.2d 820 (1944).18 OKLA. CONST. art 2, § 21.'9 360 U.S. 315, 320, 321 (1959).' 350 F. 2d 479 (3d Cir. 1965).2 Pritchard v. Liggett & Meyers Tobacco Co., 295 F.2d 292, 293 (3d Cir.1961). The cancer involved here is medically known as bronchogenic carcinoma,squamous cell type (footnote by the court).1966]1Allen: Torts: Products Liability--Cigarette Manufacturer--Lung CancerPublished by TU Law Digital Commons, 1966TULSA LAW JOURNALright lung was caused by smoking Chesterfields from 1921 to 1953.3Plaintiff based his claim on theories of negligence and breach of war-ranty. He alleged that the tobacco company was liable for negligence inmanufacturing cigarettes containing carcinogenic4 ingredients and infailing to warn consumers of the presence of those ingredients. He alsoclaimed that defendant was liable for breach of both express and impliedwarranties. Plaintiff proffered the following evidence: (a) testimony offive eminent physicians on a positive causal relationship between cancerand cigarette smoking; (b) various advertisements of defendant's productwhich assured the public the cigarettes were harmless; (c) that certaintests defendant had conducted in 1952, resulting in the widely publicizedconclusion that the cigarettes had no harmful effect on "nose, throat, andaccessory organs," were in fact inconclusive and inadequate; and (d) thatbetween 1921 and 1953 defendant made no further tests of its product.On the defendant's motions, the district court dismissed the war-ranty count and directed a verdict for defendant on the negligence countbecause of insufficient evidence to support a verdict on that theory. Thecourt of appeals reversed and remanded the case for a new trial, holdingthere was sufficient evidence to warrant a jury finding on the followingquestions: (a) the causal relation between smoking and cancer; (b) thealleged negligence of the defendant; and (c) the alleged breaches of war-ranties.5The new trial in November of 1962 resulted in a jury verdict for thedefendant based on special interrogatories submitted to the jury by thecourt.( The jury found: (a) plaintiff's smoking of Chesterfields was "thecause or one of the causes" of his lung cancer; (b) defendant was notnegligent; (c) defendant made no express warranties upon which plain-tiff relied as an inducement to purchase the cigarettes; and (d) plaintiffassumed the risk by smoking the cigarettes.The court of appeals reversed the trial court in July of 1965 andgranted plaintiff a new triaL7 The majority ruled that the trial court'scharge on express warranty was defective for vagueness and for tellingthe jury they could not find an express warranty unless the "seller actuallyintended to be bound by his statement." The court of appeals unanimous-ly reversed judgment for defendant because of the trial court's flawed in-struction that assumption of risk would be a defense without clarifying forthe jury the two different meanings of that defense. In its primary sense,3 Pritchard v. Liggett & Meyers Tobacco Co., 134 F. Supp. 829 (W.D. Pa.1955).4 "Carcinogenic" is defined as that which produces cancer. MALLOY, MmICALDICTONARY FOR LAWYEMs 106 (2d ed. 1951). "It has long been establishedthat prolonged contact with some kinds of extrinsic irritants produces a markedaffinity for certain cancer types." These irritants are called carcinogenic agents.Small, Gaffing at a Thing Called Cancer: Medico-Legal Conflicts in the Conceptof Causation, 31 TEXAs L. REV. 630, 634-5 (1953).5 Pritchard v. Liggett & Meyers Tobacco Co., 295 F.2d 292 (3d Cir. 1961).6 Pritchard v. Liggett & Meyers Tobacco Co., Civil No. 12820, W.D. Pa.,Nov. 9, 1962.7 Pritchard v. Liggett & Meyers Tobacco Co., supra note 1.[VOL. 3, No. 12Tulsa Law Review, Vol. 3 [1966], Iss. 1, Art. 13https://digitalcommons.law.utulsa.edu/tlr/vol3/iss1/13NOTES AND COMMENTSassumption of risk involves knowing of a risk, appreciating it, and volun-tarily choosing to encounter it. In its secondary meaning, assumption ofrisk is equivalent to contributory negligence and involves failure to usedue care for one's own safety. The court held that assumption of risk inthe primary sense is a defense to a warranty action, but in the secondarysense it is not.8 The court stated:There was overwhelming evidence that many of the de-fendant's advertisements carried factual affirmations, pro-fessedly based on medical research, that Chesterfields weresafe and smoking them could have no adverse effect on "thenose, throat and accessory organs." These advertisementswere calculated to overcome any fears the potential consum-ers might have had as to the harmful effects of cigarettes,and particularly Chesterfields. Under the circumstances itis difficult to perceive how the plaintiff, a cabinetmakerwith no scientific background, could have been chargedwith notice or knowledge of a danger, which the defendant,with its professed superior knowledge, extensively adver-tised did not exist.9Law suits against tobacco companies arising out of injuries sustainedfrom using tobacco products are not new, but this case is significant be-cause of the possibility of a recovery without showing any particular for-eign deleterious substance. There have been many cases involving fish-hooks, worms and other materials in chewing and smoking tobacco andalso cases involving exploding cigars.'0 Probably the most famous case iswhere the plaintiff sued a tobacco manufacturer for damages sustainedas a result of discovering a human toe in a state of putrefaction imbeddedin a plug of Brown Mule chewing tobacco." The similarity between theforeign substance cases and the cigarette-cancer cases just about ends withnaming the tobacco companies as defendants.There have been at least six other cases involving the smoking-cancerproblem, but three of them will not be discussed because the litigation in-volved only procedural or pleading matters and did not go to the sub-stantive problems.' 2 The case of Lartique v. R. J. Reynolds Tobacco Co.and Liggett & Meyers Tobacco Co.,'3 pointed out that in Louisiana, in thecase of food products and other articles intended for human consumption,8 Challis v. Hartloff, 136 Kan. 823, 18 P.2d 199 (1933); Brown v. Chap-man, 304 F.2d 149 (9th Cir. 1962); Hansen v. Firestone Tire & Rubber Co., 276F. 2d 254 (6th Cir. 1960); Jarnot v. Ford Motor Co., 191 Pa. Super. 422, 156 A.2d 568 (1959).0 Pritchard v. Liggett & Meyers Tobacco Co., supra note 1, at 486.10 Dow Drug Co. v. Nieman, 57 Ohio App. 190, 13 N.E.2d 130 (1936);Corum v. R. J. Reynolds Tobacco Co., 205 N.C. 213, 171 S.E. 78 (1933); Lig-gett & Meyers Tobacco Co. v. Rankin, 246 Ky. 65, 54 S.W.2d 612 (1932).11 Pillars v. R. J. Reynolds Tobacco Co., 117 Miss. 490, 78 So. 365 (1918).12 Cooper v. R. J. Reynolds Tobacco Co., 256 F.2d 464 (1st Ci. 1958);Padovani v. Bruckhausen, 293 F.2d 546 (2d Cir. 1961); Mitchell v. AmericanTobacco Co., 183 F. Supp. 406 (M.D. Pa. 1960).13 317 F.2d 19 (5th Cir. 1963).196633Allen: Torts: Products Liability--Cigarette Manufacturer--Lung CancerPublished by TU Law Digital Commons, 1966TULSA LAW JOURNALthere is a principle of strict liability regardless of fault. However, liabilityis only for a defective condition not contemplated by the consumer, theharmful consequences of which, based on the state of human knowledge,are foreseeable. The court stated, "Thus far, public policy has not decreedabsolute liability for 'the harmful effects of which no developed skill orforesight can avoid.' 14In Green v. American Tobacco Co.,'5 the Florida Supreme Court de-cided that an implied warranty of wholesomeness does not require thatthe risks of harm because of deleterious matter in the product need beknown to the manufacturer. The court said the basis of liability is theundertaking or agreement by the manufacturer to be responsible in theevent the thing sold is not in fact merchantable. The Fifth Circuit re-manded the case for the trial court to determine whether the cigaretteswere "reasonably fit and wholesome for human consumption."'l The mainissue in Ross v. Phillip Morris Co.,i7 was whether implied warranty ap-plied only to substances in the manufactured product, the harmful effectsof which could be foreseen by ordinary human skill and foresight. Thecourt said that under the facts of the case absolute liability would notcover substances in the manufactured product which were not foreseeablyharmful.The increased knowledge of the causal relation of smoking andcancer may work a hardship on tobacco companies because they can nolonger benefit by the rule that implied warranty of wholesomeness is.limited to those risks which could be foreseeable by the application ofreasonable human skill and foresight. The cases discussed show a trendtoward holding tobacco companies strictly liable under an implied war-ranty. However, case law on the cigarette-cancer problem is definitely ina state of flux and the Federal Cigarette Labeling and Advertising Act' smay have far-reaching ramifications. In this writer's opinion, the act isthe result of shrewd political maneuvering and compromise between thecigarette industry and Congress. The act is an apparent boon to the cigar-ette industry. It provides a privileged sanctuary for cigarette advertisingby prohibiting restrictions on merchandising by state and local bodies.The act requires only the labeling of cigarette packages "CAUTION: CIG-ARBITE SMOKING MAY BE HARMFUL TO YOUR HEALTH." This14 Id. at 39.15 154 So.2d 169 (Fla. 1963).16 325 F.2d 673 (5th Cir. 1963).27 828 F.2d 3 (8th Cir. 1964).18 Federal Cigarette Labeling and Advertising Act, U.S. CODE CONG. & AD.NEws 1506, Pub. L. No. 89-92, 89th Cong., 1st Sess. 5§ 4, 5 (b) (Aug. 20, 1965).'It shall be unlawful for any person to manufacture, import, or package forsale or distribution within the United States any cigarettes the package of whichfails to bear the following statement: "Caution: Cigarette Smoking May Be Haz-ardous to Your Health." Such statement shall be located in a conspicuous place onevery cigarette package and shall appear in conspicuous and legible type in con-trast by typography, layout, or color with other printed matter on the package.§ 5. (b). No statement relating to smoking and health shall be required in theadvertising of any cigarettes the packages of which are labeled in conformity withthe provisions of this Act."[Vol. 3, No. 14Tulsa Law Review, Vol. 3 [1966], Iss. 1, Art. 13https://digitalcommons.law.utulsa.edu/tlr/vol3/iss1/13

Torts: Products Liability--Cigarette Manufacturer--Lung Cancer

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Torts: Products Liability--Cigarette Manufacturer--Lung Cancer

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