491 Mass. 866
Mass.2023Background
- Patricia Walsh Greene smoked Marlboro cigarettes from age 13, switched from Marlboro Reds to Marlboro Lights because she believed Lights were lower in tar/nicotine, and later developed lung cancer after decades of smoking.
- Plaintiffs presented extensive evidence of a multi‑decade, coordinated industry campaign (including the 1954 "A Frank Statement" and the Tobacco Industry Research Committee) in which major cigarette manufacturers, including Philip Morris, publicly denied smoking risks while internal documents showed contrary knowledge.
- Internal Philip Morris research showed smoker compensation (so "Lights" did not reduce real exposure) and greater mutagenicity for some filtered products; Philip Morris did not disclose these findings.
- A Superior Court jury found Philip Morris not liable on negligence and breach of warranty but found liability on two theories of civil conspiracy; the judge later entered judgment for Greene on a G. L. c. 93A claim and trebled damages for willful deception.
- Philip Morris moved for JNOV/new trial and to modify judgments; those motions were denied. On appeal it argued (1) insufficient evidence for conspiracy, (2) erroneous use of "substantial contributing factor" causation language (post‑Doull), and (3) the 12% statutory pre‑ and postjudgment interest rates are unconstitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for civil conspiracy (concerted action) | Greene: pervasive industry agreement and marketing concealed risks and induced reliance; Greene relied on misrepresentations about Lights and would have smoked less or quit absent deception. | Philip Morris: no proof Greene relied on conspirators' statements; she knew smoking was risky and was addicted, so post‑1979 conduct couldn't have caused her continued smoking. | Affirmed: Evidence supported concerted‑action conspiracy; Greene showed exposure and reliance on misrepresentations about Lights that materially influenced her smoking. |
| Jury instruction on causation (use of "substantial contributing factor" post‑Doull) | Greene: instructions were adequate and included causation specifics tied to reliance and coercion theories. | Philip Morris: Doull requires but‑for causation language where but‑for can be established; judge improperly used substantial‑factor language. | Waived: Philip Morris failed to preserve a specific objection to conspiracy instructions at trial; claim is waived on appeal. |
| G. L. c. 93A liability and causation for post‑1979 deception | Greene: post‑1979 deceptive marketing of Marlboro Lights caused her to switch and continue smoking; thus c. 93A liability and trebled damages are proper. | Philip Morris: Greene's preexisting addiction means later advertising could not have caused her continued smoking. | Affirmed: Trial judge found post‑1979 deception causally linked to Greene's continued smoking and willful conduct; trebled damages affirmed. |
| Constitutionality of 12% prejudgment/postjudgment interest | Greene: fixed 12% rate reasonably furthers compensation, administrative ease, and settlement incentives. | Philip Morris: 12% is excessive in modern low‑rate markets, punitive, and lacks rational basis. | Affirmed: 12% survives rational‑basis review as compensatory and reasonably related to legislative objectives; not unconstitutional. |
Key Cases Cited
- Doull v. Foster, 487 Mass. 1 (2021) (but‑for standard required in negligence cases when but‑for causation can be proved)
- Evans v. Lorillard Tobacco Co., 465 Mass. 411 (2013) (standard for reviewing sufficiency of evidence in plaintiffs' favor)
- Gurney v. Tenney, 197 Mass. 457 (1908) (concerted‑action civil conspiracy principle)
- Fleming v. Dane, 304 Mass. 46 (1939) (true conspiracy requiring "peculiar power of coercion")
- DesLauries v. Shea, 300 Mass. 30 (1938) (discussion of coercive power in conspiracy)
- Kurker v. Hill, 44 Mass. App. Ct. 184 (1998) (elements of concerted‑action conspiracy)
- Sullivan v. Five Acres Realty Trust, 487 Mass. 64 (2021) (fraud need not be direct; deception that misleads a reasonable person suffices)
- United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1 (D.D.C. 2006) (extensive findings on industry deception and public‑relations campaigns)
- McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704 (1990) (purpose of prejudgment interest is to compensate for loss of use of money)
- Secretary of Admin. & Fin. v. Labor Relations Comm'n, 434 Mass. 340 (2001) (legislature may maintain fixed interest rates for certain contexts; discussion of §6B)