362 F.3d 882 | 6th Cir. | 2004
ROGERS, Circuit Judge. Plaintiff Jocelyn Tompkin sued
Cross-Appellants. (cid:45) the defendant tobacco companies, alleging that her husband, (cid:78) David Tompkin, died as a result of smoking cigarettes sold by the defendants. [1] Tompkin asserted statutory and common
Appeal from the United States District Court law products liability claims. After this court reversed the for the Northern District of Ohio at Akron. No. 94-01302—David D. Dowd, Jr., Senior District Judge. 1961-1964 Between 2 and 3 packs of Kent cigarettes Tompkin raises three issues on appeal. Specifically, she per day claims that the district court erred by (1) admitting “surprise” 1964-1965 Between 2 and 3 packs of Lark cigarettes testimony from a defense expert that there was an
per day. [2] “association” between Mr. Tompkin’s asbestos exposure and an elevated risk of lung cancer, (2) excluding certain evidence
Mr. Tompkin was exposed to asbestos and other pollutants that she proffered (in particular, evidence concerning research in the course of his career. After graduating from high school and public-relations groups associated with the tobacco in 1952, he worked at Stalwart Rubber Company in the curing industry, evidence concerning non-party tobacco companies, room. From 1953 to 1957, he worked as a bricklayer evidence from prior tobacco-related proceedings, and apprentice, and from 1957 to 1984, he worked as a bricklayer. evidence concerning the defendants’ conduct after the date In 1984, he started a construction company. During this that her husband quit smoking), and (3) refusing to charge the work, he was “heavily exposed” to asbestos, and he was jury on her “consumer expectations” claim under the Ohio exposed to brick dust, cement dust, mortar, lime, and rubber- Products Liability Act. Because Tompkin has not shown that curing effluvia. Finally, Mr. Tompkin had a family history of she was prejudiced by any of these alleged errors, we affirm cancer. the judgment of the district court. On June 26, 1992, Mr. Tompkin was diagnosed with lung
BACKGROUND
cancer. He died on February 12, 1996, at the age of 61. 1. David Tompkin’s History of Smoking and Lung Cancer 2. Tompkin’s Lawsuit and the Trial David Tompkin began smoking in 1950, at the age of On June 24, 1994, Tompkin and her husband, then still sixteen, and he quit in 1965, at the age of thirty-one. His alive, filed suit against the defendants in the United States smoking history was as follows: District Court for the Northern District of Ohio. Tompkin was substituted for her husband, as administratrix of his Year Amount and Brand estate, after his death. In her amended complaint, Tompkin 1950-1951 4 to 6 Old Gold cigarettes per day asserted the following claims: (1) strict liability; (2)
negligent, willful and wanton misconduct; (3) fraud and 1951-1954 4 to 6 Philip Morris cigarettes per day 1954-1957 6 to 8 Pall Mall cigarettes per day [2] During the relevant time period, The American Tob acco Com pany
made Pall Mall and Herbert Tareyton cigarettes, Liggett Group, Inc. made 1957-1959 10 Chesterfield cigarettes per day Lark and Chesterfield cigarettes, Lorillard Tobacco C ompany mad e Old Go ld and K ent cigarettes, and Philip Mo rris, of course, mad e Philip Morris cigarettes.
Nos. 02-3267/3309 Tompkin v. Philip 5 6 Tompkin v. Philip Nos. 02-3267/3309 Morris, Inc., et al. Morris, Inc., et al. misrepresentation; (4) strict liability for misrepresentation; (5) to instruct the jury on Tompkin’s “consumer expectations” express warranty; (6) implied warranty; (7) conspiracy and claim, reasoning that “there was no testimony” to support the concerted action; and (8) derivative claims for wrongful death claim. and loss of consortium.
At trial, Tompkin presented fourteen witnesses, including On August 3, 1998, the district court granted summary family and close friends of her husband. Tompkin and two of judgment in favor of the defendants. It held that Tompkin’s her daughters testified about their relationships with first five claims were governed by the Ohio Product Mr. Tompkin and about the effect of his cancer on him and Liabilities Act (“OPLA”) and that OPLA’s “common his family. Similarly, Mr. Tompkin’s business partner, and knowledge” doctrine—which bars claims for damages from long-time coworker, testified about Mr. Tompkin’s work and risks which are “common knowledge”—applied to these his smoking habits. Finally, in a videotaped deposition, claims. Tompkin v. Am. Brands, Inc. , 10 F. Supp. 2d 895, Mr. Tompkin testified about his history of smoking, his (lack 899-905 (N.D. Ohio 1998). It also held that OPLA of) awareness of the dangers of smoking, his medical history, preempted breach of implied warranty claims and that his history of employment, and the impact of his cancer on his Tompkin failed to establish that her husband relied on any personal and professional life. statements by the defendants, as required to sustain her fraud Tompkin also presented testimony from the physicians who and conspiracy claims. Id. at 900, 909-10. Finally, it held treated her husband. Mr. Tompkin’s family physician, his that, by definition, Tompkin’s derivative claims failed when two oncologists, and his surgeon testified about the diagnosis the underlying claims failed. Id. at 911.
and treatment of his lung cancer. Additionally, his oncologist On July 24, 2000, this court reversed, in part, the district opined, as the treating physician, not as an expert witness, court’s grant of summary judgment. We concluded that that cigarette smoking caused Mr. Tompkin’s lung cancer. Tompkin had established a genuine issue of material fact on
Tompkin also presented expert testimony on her “failure to the extent of “common knowledge” of the nexus between warn” claim, the defendants’ “common knowledge” defense, smoking and lung cancer, and we reversed the grant of and the cause of Mr. Tompkin’s cancer. Dr. Alan Blum, a summary judgment on her OPLA claims. Tompkin v. Am. professor of family medicine at the University of Alabama Brands , 219 F.3d 566, 571-75 (6th Cir. 2000). Additionally, School of Medicine, Tuscaloosa branch, testified in support we reversed the district court’s holding that OPLA preempted of Tompkin’s failure to warn claim. A self-styled historian, Tompkin’s breach of implied warranty claim. Id. at 576. he traced the history of medical literature on the connection However, we affirmed the district court’s holding that OPLA between smoking and lung cancer. He concluded that by preempted her negligent, willful and wanton misconduct
1939 “the case was closed that smoking was the leading cause claim. Id. at 575. of lung cancer.” Based on this conclusion, he opined that (1) The trial commenced on September 25, 2001, and the defendants “knew in 1939, or in the exercise of reasonable comprised approximately seven days of testimony. At trial, care should have known in 1939, about a risk that was Tompkin advanced a “failure to warn” claim under OPLA, a associated with their cigarettes and lung cancer,” and (2) the “consumer expectations” claim under OPLA, and a breach of defendants “should have issued warnings or instructions in implied warranty claim. However, the district court refused 1939 as to the risks of smoking tobacco, particularly Nos. 02-3267/3309 Tompkin v. Philip 7 8 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al. cigarettes, and insofar as its causing lung cancer is Dr. David Sidransky, the Director of Head, Neck, and concerned.” Cancer Research at Johns Hopkins University, also testified
about the cause of Mr. Tompkin’s cancer. Sidransky Tom Smith, the director of the general social survey at the performed a “Loss of Heterozygosity” analysis (an “LOH” National Opinion Research Center at the University of analysis) on tissue samples from Mr. Tompkin. He explained Chicago, testified in response to the defendants’ common that chromosomal changes occur in cancerous cells (including knowledge defense. He reviewed polling conducted between the loss of chromosomal arms that contain growth 1950 and 1965 on the connection between smoking and lung suppressing genes) and that certain of these changes occur cancer. In particular, he described six Gallup polls which, much more frequently in cancer victims who have smoked averaged together, showed that only 45% of the respondents than in cancer victims who have not smoked. Applying LOH believed that smoking caused lung cancer. Based on this
analysis, he determined that many of these chromosomal investigation, he opined that “the ordinary person with changes associated with smoking had occurred in cancer cells ordinary knowledge common to the community” did not from Mr. Tompkin. Based on this finding, he opined that recognize “the nature and the extent of the link between “smoking was a major contribution to [Mr. Tompkin’s] lung smoking cigarettes and lung cancer between the years 1950 cancer.” and 1965.” He explained that “based on the particular data here from Gallup as well as other data we’ve looked at about Finally, Dr. John Burke, a retired professor of economics, what causes cancer and people’s beliefs about what harms testified about Mr. Tompkin’s loss of future earning capacity. come from smoking, the data clearly indicates that people did The defendants presented four witnesses, all of whom were not make a strong link in that period between smoking and experts. Dr. Joan Hoff, a professor of history at Ohio lung cancer.”
University, testified in support of the defendants’ common Dr. Joseph Tomashefski, a pathologist, testified about the knowledge defense. At the request of defense counsel, she cause of Mr. Tompkin’s cancer. He testified that, in had researched discussions of smoking and lung cancer in connection with the autopsy of Mr. Tompkin, he reviewed national magazines, regional newspapers, legislative Mr. Tompkin’s history of smoking and ordered an asbestos materials, and educational materials during the period from fiber burden test on tissue samples, which revealed “a high 1950 to 1965 to determine “commonly held attitudes or load of asbestos fibers in [Mr. Tompkin’s] lungs.” Based on common knowledge or common information available to the this information, he concluded that Mr. Tompkin’s cancer average person about the link between lung cancer and was “due to the combined effect of his cigarette smoking and cigarette smoking.” Based on her research, she opined that his exposure to asbestos.” He explained that “asbestos “the link between cigarette smoking and lung cancer was interacts with cigarette smoking by a process that we call common knowledge” in the United States and, in particular, synergy” whereby “they have an effect which is beyond an in Ohio between 1950 and 1965. additive effect of each of their potencies.” He also testified The remaining defense witnesses concentrated on the that asbestos was “a relatively weak carcinogen,” and that he proximate cause issue. Dr. David Parkinson, a professor of had never seen a case of lung cancer involving asbestos alone medicine at the State University of New York at Stony Brook without any history of smoking.
and Director of the Long Island Occupational and Nos. 02-3267/3309 Tompkin v. Philip 9 10 Tompkin v. Philip Nos. 02-3267/3309 Morris, Inc., et al. Morris, Inc., et al. Environmental Health Center, testified about Mr. Tompkin’s asbestos exposure to the incidence of the disease in the non- exposure to various carcinogens. He asserted that a smoker smoking “cohort” and the “cohort” without asbestos can reduce his risk of lung cancer by quitting smoking, but exposure. Bradley explained that a relative risk of 1.0 is the that “asbestos is very resistant to elimination by the body, and baseline—there is no increased, or decreased, risk from the it is not possible to cut down the risk from cumulative exposure—and that the relative risk must be at least 2.0 to asbestos exposure.” Based on his review of Mr. Tompkin’s support a conclusion that the exposure is “associated” with deposition and medical records, he opined that Mr. Tompkin the disease. He further explained that this method of analysis was likely exposed to asbestos and other carcinogens while establishes only a statistical “association”; it does not working in the curing department at Stallworth Rubber establish individual causation. Company and while working as a bricklayer on certain
Bradley concluded that Mr. Tompkin’s cancer was not construction sites. He further opined that “the most “associated” with smoking but was “associated” with asbestos significant exposure that induced Mr. Tompkin’s lung cancer exposure. He determined that the relative risk from smoking was his asbestos exposure” and that, “because of the small was 1.59, and, based on this figure, he opined that amount of cigarette smoking, and the length of time that Mr. Tompkin’s “smoking history was not associated with an passed after he had stopped smoking,” smoking was not a increased risk of developing lung cancer.” Similarly, he proximate cause of his cancer.
determined that the relative risk of smoking to individuals Dr. Edwin Bradley, a biostatistician, testified about the with asbestos exposure was 1.56, and, based on this figure, he epidemiological association between lung cancer and Mr. opined that Mr. Tompkin’s smoking did not add to his risk of Tompkin’s asbestos exposure and smoking. Using data developing lung cancer “[a]bove that risk that he would have
had from asbestos exposure alone.” [3] Conversely, he collected by the American Cancer Society, he compared the incidence of lung cancer in a “cohort” of individuals with determined that the relative risk from asbestos exposure was
between 2.65 and 5.91, [4] and he opined that there was “an smoking histories similar to Mr. Tompkin to the incidence of lung cancer in a “cohort” of individuals with no history of smoking. Using this same data, he also compared the Nos. 02-3267/3309 Tompkin v. Philip 11 12 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al. association between the exposure of the type to asbestos that October 22, 2001, Tompkin moved for a new trial, arguing Mr. Tompkin had [and] an elevated risk of developing lung that the district court had erred by (1) permitting “surprise” cancer.” testimony from Dr. Bradley, (2) excluding evidence
concerning organizations affiliated with the tobacco industry, Tompkin objected to Bradley’s testimony concerning the (3) excluding evidence concerning non-party tobacco relative risk from asbestos exposure, and to the use of companies, (4) excluding evidence from prior tobacco-related demonstrative exhibits in connection with this testimony, on cases, (5) excluding evidence concerning punitive damages the ground that Bradley had not disclosed this information in and failing to charge the jury on punitive damages, (6) his expert report. The district court overruled Tompkin’s excluding evidence concerning post-1965 activities of the objection. defendants, and (7) failing to charge the jury on Tompkin’s
consumer expectations theory under OPLA. Finally, Dr. Peter McCue, the chief of anatomic pathology and a professor of pathology at Thomas Jefferson University On January 30, 2002, the district court denied Tompkin’s Hospital in Philadelphia, testified about his examination of motion for a new trial. The court concluded that it had erred tissue samples from Mr. Tompkin. He testified that he did by failing to sustain Tompkin’s timely objections to (1) not detect any of the normal smoking-related changes, such Dr. Bradley’s testimony that asbestos was “associated” with as damage to the bronchial epithelium, pigment-laden Mr. Tompkin’s cancer because, the court determined, the macrophages, and mucous lining hyperplasia, in Mr. testimony directly conflicted with Dr. Bradley’s statement in Tompkin’s pathology specimens. [5] Conversely, he testified
his expert report that “it is not possible to determine to a that he did detect asbestos fibers, quartz dust, and mineral reasonable degree of scientific certainty which of the risk fibers, as well as asbestos-induced disease process, in the factors, smoking or asbestos exposure (or other risk factors), specimens. Based on this analysis, he opined that Mr.
contributed to Mr. Tompkin’s lung cancer,” and (2) the Tompkin’s cancer “most likely resulted from his occupational introduction of exhibits—specifically, three bar graphs that exposure to silicates and asbestos” and that his examination illustrated Dr. Bradley’s testimony concerning the relative revealed “no pathological or biochemical evidence . . . that risk of lung cancer associated with Mr. Tompkin’s asbestos showed that he had an effect from cigarette smoking.” exposure—which were not identified in Dr. Bradley’s expert
report and which contained information not disclosed in the The jury found for the defendants, and on October 9, 2001, expert report. However, the court concluded that its errors judgment was entered in favor of the defendants. On did not justify a new trial, reasoning that the errors were not prejudicial as Dr. McCue’s testimony “was far more devastating than Dr. Bradley’s testimony.” The court’s memorandum opinion denying Tompkin’s new trial motion
somewhere between the 2.65 and 5.91 [sic], probably closer to the 5.91 level.” did not discuss Tompkin’s other arguments. [5] On March 1, 2002, Tompkin filed a timely notice of appeal. Additiona lly, he asserted that, after 15 to 20 years of non-smoking,
a former smoker’s risk of lung cancer returns “almost down to baseline or down to a normal population.” He also noted that P53 and K-Ras studies performed by Dr. Tomashefski, which test for genetic changes associated with smo king, were negative. Nos. 02-3267/3309 Tompkin v. Philip 13 14 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al. ANALYSIS 2. The District Court’s Admission of the “Surprise” Testimony of Dr. Bradley 1. Standard of Review The district court did not abuse its discretion in denying This court reviews a district court’s denial of a motion for Tompkin’s motion for a new trial based on “surprise” a new trial under an abuse of discretion standard. Tobin v. testimony by Dr. Edwin Bradley, a defense expert on the Astra Pharm. Prods., Inc. , 993 F.2d 528, 542 (6th Cir. 1993). causation issue. The district court properly concluded that “Abuse of discretion is defined as a definite and firm Tompkin did not meet her burden of demonstrating prejudice conviction that the trial court committed a clear error of from the admission of Bradley’s testimony. judgment.” Id. (quoting Logan v. Dayton Hudson Corp. , 865 F.2d 789, 790 (6th Cir. 1989)). A district court abuses its Tompkin argues that Bradley failed to disclose in his expert discretion when it relies on clearly erroneous findings of fact, report his testimony that there was an “association” between or when it improperly applies the law or uses an erroneous Mr.Tompkin’s level of asbestos exposure and lung cancer. In legal standard. Romstadt v. Allstate Ins. Co. , 59 F.3d 608, his expert report, Bradley wrote, in relevant part, 615 (6th Cir. 1995).
12. Epidemiology addresses whether a disease is Moreover, a motion for a new trial will not be granted statistically associated with an exposure in a unless the moving party suffered prejudice. Morales v. Am. population, not in individuals. The question of Honda Motor Co., Inc. , 151 F.3d 500, 514 (6th Cir. 1998); individual causation, sometimes referred to as Erskine v. Consol. Rail Corp. , 814 F.2d 266, 272 (6th Cir. specific causation, is beyond the domain of the 1987) (holding that a new trial will not be granted on the science of epidemiology. Even in populations, the ground that surprise evidence was admitted unless the moving existence of a statistical association does not party was prejudiced). “Even if a mistake has been made necessarily mean that two events are causally regarding the admission or exclusion of evidence, a new trial related. Epidemiology provides information will not be granted unless the evidence would have caused a relevant to reaching a conclusion regarding general different outcome at trial.” Morales , 151 F.3d at 514. “The association, but cannot alone prove causation in an burden of showing harmful prejudice rests on the party individual. seeking the new trial.” Tobin , 993 F.2d at 541; see also * * * Erksine , 814 F.2d at 272 (“In order to prevail on his motion for a new trial, plaintiff must show that he was prejudiced and
14. Statistical associations between exposure and that failure to grant a new trial is inconsistent with substantial disease (or mortality) from epidemiologic studies are justice.” (citation omitted)). usually measure as relative risks (“RRs”) or odds ratios (“ORs”). A relative risk is defined as the ratio of the incidence of disease (or mortality) in the exposed group to the incidence of disease (or mortality) in the unexposed group. For example, if the incidence of cancer among the exposed group is
Nos. 02-3267/3309 Tompkin v. Philip 15 16 Tompkin v. Philip Nos. 02-3267/3309 Morris, Inc., et al. Morris, Inc., et al. 10 in 100 and the incidence among the unexposed that there is no statistical association between group is 5 in 100, then the relative risk is 2.0 Mr. Tompkin’s smoking from 1950 to 1965 and an (10/100 ÷ 5/100). . . . increased risk of death from lung cancer in 1996. It
is a general scientific principle that when no * * * statistically significant association is found between an exposure and a disease, the question of causation 17. I regard relative risks below 2.0 as too weak to is moot. support a conclusion that an exposure is associated with a disease. * * *
* * * 39. I expect to opine to a reasonable degree of scientific certainty that the epidemiological studies on 33. I have performed generally accepted statistical asbestos exposure and cigarette smoking do not analyses of the data in this file addressing the establish that the best model for describing the question of whether there is an increased risk of lung relative risks is multiplicative. . . . cancer in the group of males (“cohort”) enrolled in [a large epidemiological study conducted by the 40. I also examined the CPS-II data file to investigate American Cancer Society called Cancer Prevention
the association between asbestos exposure, smoking Study II (“CPS-II”)] who had quit smoking between and lung cancer. the ages of 26 and 34, had remained abstinent for between 27 and 35 years, and had a smoking history 41. I have performed generally accepted statistical of 17 to 48 pack-years before quitting. This analyses of the data in this file addressing the smoking history is similar to that of Mr. Tompkin, question of whether there is an increased risk of lung who smoked between 1950 and 1965, at which time cancer in the group of males (“cohort”) enrolled in he quit. CPS-II who indicated on the CPS-II questionnaire
that they had been exposed to asbestos and had quit 34. . . . The comparison group consisted of males in the smoking for between 27 and 35 years. This CPS-II study who had never smoked. smoking and asbestos exposure history is similar to that of Mr. Tompkin.
35. Based on this analysis, I will testify that I could find no statistically significant association for the CPS-II 42. . . . The comparison cohort consisted of males in the cohort described in paragraph 33 above and an CPS-II study who indicated on the CPS-II increased risk of lung cancer. I will also testify that questionnaire that they had been exposed to the relative risk I calculated, in addition to not being asbestos, and had never smoked. statistically significant, was less than 2.0. Consequently, an attributable risk calculation shows 43. Based on this analysis, I will testify that I could find that more probably than not, smoking is not related no statistically significant association for the CPS-II to lung cancer for this cohort. Further, I will testify cohort described in paragraph 41 above and an
Nos. 02-3267/3309 Tompkin v. Philip 17 18 Tompkin v. Philip Nos. 02-3267/3309 Morris, Inc., et al. Morris, Inc., et al. increased risk of lung cancer. I will also testify that cohort of persons who never smoked but who were exposed the relative risk I calculated, in addition to not being to asbestos against a cohort of persons who never smoked and statistically significant, was less than 2.0. who were never exposed to asbestos—as 2.65. J.A. at 2374. Consequently, an attributable risk calculation shows He further testified that the medical literature sets the relative that more probably than not, smoking is not related risk of lung cancer for patients who have asbestosis, and thus to lung cancer for this cohort. Further, I will testify have a high level of asbestos exposure, at 5.91. J.A. at 2376. that even with consideration of his asbestos Thus, he concluded that Mr. Tompkin’s relative risk of exposure, there is no statistical association between developing lung cancer from asbestos exposure was between Mr. Tompkin’s smoking from 1950 to 1965 and an 2.65 and 5.91; and, as a pathological exam performed by Dr. increased risk of death from lung cancer in 1996. It Tomashefski, one of the plaintiff’s experts, revealed a fiber is a general scientific principle that when no burden in Mr. Tompkin’s lungs consistent with asbestosis, his statistically significant association is found between relative risk was “probably closer to the 5.91 level.” J.A. at an exposure and a disease, the question of causation 2375-77. is moot.
In connection with this testimony, Bradley used three 44. Based on further analyses of the CPS-II data, I will exhibits, each titled “Analysis of Mr. Tompkin’s Risk testify that the joint risk of asbestos exposure and Profile,” which illustrate his findings on Mr. Tompkin’s smoking on the development of lung cancer is best relative risk of developing lung cancer from smoking and described by an additive, not multiplicative, model. from asbestos exposure. The first exhibit was a bar graph
depicting Mr. Tompkin’s relative risk from smoking as 1.59, 45. I will also testify that it is not possible to determine a figure which the graph describes as “Not Statistically to a reasonable degree of scientific certainty which Significant.” J.A. at 837. The second exhibit was a bar graph of the risk factors, smoking or asbestos exposure (or depicting Mr. Tompkin’s relative risk from smoking as 1.59 other risk factors), contributed to Mr. Tompkin’s and his relative risk from asbestos as 2.65, figures which the lung cancer, when the only available data are from graph describes as “Not Statistically Significant” and epidemiological studies. The difficulties of “Statistically Significant,” respectively. J.A. at 838. The disentangling the relationship among several factors third exhibit was a bar graph depicting Mr. Tompkin’s while attempting to control for confounding have relative risk from smoking as 1.59, his relative risk from been recognized in the scientific community. asbestos as 2.65, and his relative risk from asbestosis as 5.91,
figures which are labeled “Not Statistically Significant” and J.A. at 756-61 (emphasis in original). “Statistically Significant,” respectively. J.A. at 839. In the second and third exhibits, the bar representing Mr. Tompkin’s
At trial, Bradley opined that there was “an association relative risk from smoking is colored blue, and the bars between the exposure of the type to asbestos that representing his relative risk from asbestos and asbestosis are Mr. Tompkin had [and] an elevated risk of developing lung colored red. J.A. at 838-39. cancer.” J.A. at 2379. He testified that, using the data in CPS-II, he calculated the relative risk of developing lung
During the trial, the district court overruled Tompkin’s cancer due to asbestos exposure alone— i.e. , he measured a objection to Bradley’s testimony concerning the relation Nos. 02-3267/3309 Tompkin v. Philip 19 20 Tompkin v. Philip Nos. 02-3267/3309 Morris, Inc., et al. Morris, Inc., et al. between Mr. Tompkin’s exposure to asbestos and his lung Further, she asserts that she was prejudiced by this “surprise” cancer. After the verdict, the district court denied Mr. testimony because her counsel were unable to prepare Tompkin’s motion for a new trial, which motion contended, adequately for cross-examination of Bradley and were unable in part, that Bradley had not disclosed in his expert report his to present responsive testimony, and because Bradley’s testimony that Mr. Tompkin’s asbestos exposure gave him an testimony “dramatically bolstered defendants’ theory of elevated risk of developing lung cancer. In denying the causation” (“essentially the only defense in the case”). motion, the district court concluded that it had erred in Appellant’s Br. at 11, 13. overruling Tompkin’s objection, as the defendants had The defendants counter that Bradley properly disclosed the violated Federal Rule of Civil Procedure 26(a)(2)(B) by not testimony in his expert report. They note that paragraph 36 disclosing the exhibits and the related testimony in Bradley’s
of the report states that Bradley “will testify about the report. However, the court further concluded that its error epidemiological studies on asbestos exposure, cigarette was not prejudicial, given the strength of the defendants’ smoking and lung cancer,” and that paragraph 41 advised that other witnesses. Specifically, the court found
Bradley analyzed a cohort with a smoking and asbestos the testimony of the defense witness, Dr. McCue, was history similar to that of Mr. Tompkin. J.A. at 760. They well documented and supported by his examination of also argue that paragraph 45 is not inconsistent with the slides of the decedent’s lung tissue and also Bradley’s testimony, explaining that paragraph 45 simply supported by the negative findings of Dr. Tomashefski as states that an epidemiologist cannot offer an opinion as to to the P53 and K-Ras genes. In the Court’s view, that which risk factor caused Mr. Tompkin’s cancer, and that testimony, which followed Dr. Bradley’s testimony, was Bradley simply testified to a statistical association between far more devastating than Dr. Bradley’s testimony about Mr. Tompkin’s cancer and asbestos exposure. epidemiology associations.
The defendants argue, in the alternative, that any violation J.A. at 874. of Rule 26(a) was not prejudicial. They contend that the testimony was disclosed to Tompkin during Bradley’s On appeal, Tompkin challenges the admission of Bradley’s deposition and in Bradley’s reliance materials. They also testimony that Mr. Tompkin’s relative risk of developing contend that Tompkin’s was not harmed by the admission of cancer from asbestos exposure was between 2.65 and 5.91 the testimony, given that Tompkin admitted that asbestos and the use of the exhibits in connection with this testimony. contributed to her husband’s cancer and that two other She contends that, as the district court concluded, the defense experts, Drs. McCue and Parkinson, testified that defendants violated Federal Rule of Civil Procedure asbestos was a cause of Mr. Tompkin’s cancer. 26(a)(2)(B) by not disclosing this testimony and the exhibits in Bradley’s expert report. She argues that this testimony was Rule 26(a) of the Federal Rules of Civil Procedure requires directly inconsistent with Bradley’s report, which stated, an expert witness to provide a written reporting containing, among other things, that “it is not possible to determine to a inter alia , (1) “a complete statement of all opinions to be reasonable degree of scientific certainty which of the risk expressed and the basis and reasons therefor,” and (2) “any factors, smoking or asbestos exposure (or other risk factors), exhibits to be used as a summary of or support for the contributed to Mr. Tompkin’s lung cancer.” J.A. at 761. opinions.” Fed. R. Civ. P. 26(a)(2)(B). Rule 37 provides that Nos. 02-3267/3309 Tompkin v. Philip 21 22 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al. “[a] party that without substantial justification fails to disclose Bradley will testify about the increased risk of lung cancer from asbestos exposure. [7] information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at trial . . .
However, Tompkin has not shown that the district court’s any witness or information not so disclosed.” Fed. R. Civ. P. finding that she was not prejudiced by the admission of the 37(c)(1). Rule 37 further provides that “[i]n addition to or in testimony was clearly erroneous. Other defense experts lieu of this sanction, the court . . . may impose other testified about the connection between Mr. Tompkin’s cancer appropriate sanctions.” Id.
and his asbestos exposure—in terms of specific causation Clearly, the defendants failed to comply with Federal Rule rather than mere “associations.” Dr. Parkinson, a physician specializing in occupational medicine, [8] opined that “the most of Civil Procedure 26(a). It is true the testimony in question was arguably consistent with paragraph 45 of Bradley’s significant exposure that induced Mr. Tompkin’s lung cancer report. On one reading, paragraph 45 states that it is not was his asbestos exposure over the many years he was possible to determine from epidemiological studies whether exposed to asbestos” and that smoking was not a proximate smoking or asbestos was the medical cause of Mr. Tompkin’s cause of Mr. Tompkin’s lung cancer. J.A. at 2297, 2306. cancer, whereas, in the challenged testimony, Bradley opined Dr. Peter McCue, a surgical pathologist, testified that he that there was a statistical association between lung cancer examined tissue samples from Mr. Tompkin’s lungs and and Mr. Tompkin’s level of asbestos exposure. In any event, found evidence of damage from exposure to asbestos and the report does not state that Bradley will testify that Mr. mineral fibers but no evidence of damage from smoking. J.A. Tompkin had an elevated risk of developing lung cancer due at 2520-22, 2527, 2531-34. He opined that Mr. Tompkin’s to his exposure to asbestos (let alone that his relative risk was between 2.65 and 5.91), and Rule 26(a) would require such a statement. [6] Paragraphs 36 through 43, which the defendants cancer”). [10] deposition testimony from other tobacco-related lawsuits; and
post-1965 evidence. However, Tompkin has not explained the relevance of any specific piece of evidence, either making
In denying Tompkin’s motion for a new trial, the district a generalized assertion that a category of evidence is relevant court concluded that McCue’s testimony was “far more and leaving the court to sift through hundreds of pages of devastating than Dr. Bradley’s testimony about epidemiology documents or thousands of pages of deposition testimony in associations.” J.A. at 874. We have not found anything in an effort to divine the relevance of particular items, or failing the record or the parties’ briefs that undermines this to identify the specific pieces of evidence excluded by the conclusion, and we cannot say that the exclusion of the district court at all. Moreover, Tompkin has made no effort testimony “would have caused a different outcome at trial.”
to explain how she was prejudiced by the exclusion of the Morales , 151 F.3d at 514 (citation omitted). In sum, we do evidence. Consequently, we cannot conclude that the district court abused its discretion in excluding the evidence or that the exclusion of the evidence was prejudicial. [9] The experts also testified that damage to the lungs from sm oking is
reversible but damage from asbesto s is not. J.A. at 2283, 2291-92, 2523- This court reviews a district court’s evidentiary rulings for 24. abuse of discretion, and a district court’s determination will [10] be reversed only if the abuse of discretion caused more than Additiona lly, Tompkin cross-examined Bradley about the harmless error. Argentine v. United Steelworkers of Am ., 287 consistency of his testimony on asbestos with his report (J.A. at 2409-17), and he raised the issue during interim argum ent. See J.A. at 2505 (“I have F.3d 476, 486 (6th Cir. 2002); Trepel v. Roadway Exp., Inc. , to take his word for it, I couldn’t tell you if my life depended on it—o ne
194 F.3d 708, 716 (6th Cir. 1999). “Broad discretion is given of 69 articles. He doesn’t raise it in his rep ort, he d oesn’t say it in his to district courts in determinations of admissibility based on deposition, he says it here.”) During closing argument, she accused the considerations of relevance and prejudice, and those decisions defendants of ambushing her with Bradley’s testimony. J.A. at 2793 will not be lightly overturned.” United States v. Jackson- (“[W ]e come into the courtroom and, bam, up come those bo ards and up come this new opinion [sic] that it was asbestos. So, I mean, the Randolph , 282 F.3d 369, 376 (6th Cir. 2002). As a leading tobacco— the defendants are capable of playing pretty hard-nosed
treatise observes, “[c]laims of error with regard to the footb all.”). Nos. 02-3267/3309 Tompkin v. Philip 25 26 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al. Hill & Knowlton (“H & K”). [11] On September 21, 2001, after admission or exclusion of evidence are prime candidates for application of the harmless error rule.” 11 Charles Alan considering additional briefing by the parties, the district Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice court refused to overrule its original ruling. The district court and Procedure § 2885 (2d ed. 1995). did not explain its rationale for excluding the evidence in
either order. On December 20, 2001, the district court denied As defined by the Federal Rules of Evidence, relevant Tompkin’s motion for a new trial without discussing evidence is “evidence having any tendency to make the Tompkin’s argument that it had erred by excluding evidence existence of any fact that is of consequence to the concerning the tobacco industry groups. determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. On appeal, Tompkin asserts, in broad terms, that evidence All relevant evidence is admissible. Fed. R. Evid. 402. concerning CTR, TIRC, TI, and H & K was relevant. However, Specifically, she contends that “the efforts of these groups are
highly relevant to the issues of common knowledge, as well Although relevant, evidence may be excluded if its as to consumer expectations, failure to warn, and punitive probative value is substantially outweighed by the danger damages,” apparently because these groups allegedly of unfair prejudice, confusion of the issues, or misleading attempted to mislead the public about the dangers of cigarette the jury, or by considerations of undue delay, waste of smoking. She points to eighty-four documents—including time, or needless presentation of cumulative evidence. internal memoranda concerning the formation of, and the
activities of, TIRC and TI, press releases by TIRC, TI, and Fed. R. Evid. 403. newsletters published by TI—as examples of evidence b. Exclusion of Evidence Concerning Tobacco Industry Groups scientifically investigating whether there were health risks to smoking relevant or that the exclusion of any specific document cigarettes” and “continued to claim th at further research needed to be resulted in prejudice. done before smo king co uld be said to cause lung cancer . . . long after the tobacco companies internally understood the true hazards.” App ellant’s
On August 2, 2001, the district court entered an order Br. at 18. “tentatively” granting the defendants’ motion in limine to Also according to Tom pkin, the defendants, as well as other tobacco comp anies, formed TI in 1958 to serve as the industry’s “public relations exclude evidence or allegations concerning the Council for and lobbying arm.” Tompkin alleges that TI endeavored to “create a Tobacco Research (“CTR”), the Tobacco Industry Research ‘contro versy’ about the health hazards of smo king cigarettes, and to create Committee (“TIRC”), the Tobacco Institute, Inc. (“TI”), and doubt abo ut the link b etween smo king and can cer without expressly denying it.” Id.
Finally, according to Tompkin, H & K, a public relations firm, was involved in the forma tion of T IRC . Nos. 02-3267/3309 Tompkin v. Philip 27 28 Tompkin v. Philip Nos. 02-3267/3309 Morris, Inc., et al. Morris, Inc., et al. wrongfully excluded by the district court’s ruling. However, exclude evidence of or reference to conduct or documents of she does not explain how any specific piece of evidence was non-party tobacco companies. On September 21, 2001, after relevant or how the exclusion of any specific piece of considering additional briefing by the parties, the district evidence inflicted prejudice. court refused to overrule its original ruling. The district court
did not explain its rationale for excluding the evidence in Tompkin has not shown that she was prejudiced by the either order. On December 20, 2001, the district court denied district court’s ruling. Before this court, Tompkin merely Tompkin’s motion for a new trial without discussing asserts that this category of documents is relevant to an array Tompkin’s argument that it had erred by excluding of issues, making no effort to demonstrate the relevance of evidencing concerning non-party tobacco companies. particular documents or to explain how she was prejudiced by the exclusion of particular documents. Without such On appeal, Tompkin argues that the district court erred by information, we cannot say that the trial court committed a excluding evidence concerning non-party tobacco companies. clear error of judgment or that Tompkin suffered prejudice. [12]
Speaking in the most general terms, she contends that this evidence was relevant because evidence showing that other
c . Exclusion of Evidence Concerning Non-Party Tobacco tobacco companies knew of the dangers of smoking indicates Companies that the defendants should have known of the dangers as well (and, hence, should have warned consumers of the dangers). The district court’s exclusion of evidence concerning non- She has not identified any specific piece of evidence that was party tobacco companies does not constitute grounds for a excluded by the district court’s ruling. new trial, as Tompkin has not demonstrated that the district court improperly excluded any specific piece of evidence or Given Tompkin’s failure to direct the court to the specific that the exclusion of any specific piece of evidence was pieces of evidence that she was prevented from introducing, prejudicial.
we cannot say that the district court committed reversible error. It is impossible to determine whether the evidence that
On August 2, 2001, the district court entered an order Tompkin intended to present was relevant (or whether the “tentatively” granting the defendants’ motion in limine to evidence should have been excluded under Federal Rule of Evidence 403) without knowledge of the substance of the testimony or documents. Likewise, it is impossible to say [12] that Tompkin was prejudiced by the exclusion of the evidence Mo reover, although the district court granted the defendants’ simply on the basis of Tompkin’s generalized assertion that motion in limine to exclude this category of evidence, it later ruled that the defendants had “opened the door” to this evidence. During To mpk in’s the evidence was “relevant.” cross-examination of Dr. Hoff, the defendants’ expert on the common knowledge issue, the d istrict court ruled that evidence relating to TIRC and TI was no longer excluded, given that Dr. Hoff had shown “no interest” in the public position of the tobacco companies regarding the link between cigarette smoking and lung cancer when analyzing whether the linkage was common knowledge. J.A. at 1618. Tompkin proceeded to question Dr. Hoff about TIRC, TI, CTR, and H & K, even examining Dr. Hoff about one of the press releases that Tompkin complains was excluded by the district court’s initial ruling. J.A. at 1619-51. Nos. 02-3267/3309 Tompkin v. Philip 29 30 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al. d. Exclusion of Deposition Testimony from Other Spears, III, the former chairman and CEO of Lorillard Proceedings Tobacco Co., that his company “would have kept selling cigarettes as long as they were a legal product, regardless of The district court’s exclusion of deposition testimony from whether there were several definitive studies showing other proceedings does not constitute reversible error, as smoking causes lung cancer” ( id. at 40); (7) testimony from Tompkin has not established that she was prejudiced by the Carl G. Thompson, a former employee of H & K, that “TI’s exclusion of the testimony. position with respect to tobacco and health was basically a
theme of ‘scientific controversy’” ( id. at 42); (8) testimony On appeal, Tompkin complains that she was not allowed to from William Kloepfer, an employee of TI starting in 1967, present the following deposition testimony: [13] (1) testimony about “the use of the ‘cigarette controversy’ since at least TI’s from Robert Heimann, the former president and CEO of The inception in 1958" ( id. at 43); and (9) testimony from Walker American Tobacco Company, “regarding warnings” P. Merryman, a spokesman for TI, that one of TI’s purposes (Appellant’s Reply Br. at 30); (2) testimony from Frederick was to convince the public that “we are vitally interested in Panzer, an employee of TI starting in 1969, that the tobacco getting the facts that would provide answers to questions industry had employed “a holding strategy” of “creating about smoking and health.” Id. at 44. doubt about the health charge without actually denying it” and “advocating the public’s right to smoke, without actually Assuming that this testimony was relevant (and not
excludable under Federal Rule of Evidence 403), [14] and also urging them to take up the practice” ( id. at 32); (3) testimony assuming that the testimony was not inadmissible hearsay, [15] from Bennett LeBow, who acquired ownership of Liggett Group, Inc. in the 1980s, that “the tobacco companies were all lying regarding the defenses they were making including cigarettes causing disease” ( id. at 33); (4) testimony from [14] Irwin Tucker, an employee of a non-party tobacco company, The relevance of the excluded testimony is by no means clear. To mpk in makes no effort to tie the testimony of particular individuals to that, at the December 1953 meeting where tobacco company
specific issues; instead, she simply announces at the outset of her presidents created TIRC to respond to adverse publicity from argument that “[t]his testimony was relevant to the issues before the jury medical research linking smoking to lung cancer, there was in this case.” Appellant’s Br. at 24. (There is an exception; she does no discussion whether the tobacco companies should issue assert that “portions” of Heimann’s deposition relate to her failure to warn warnings to smokers regarding the health risks ( id. at 35-36); claim and the defendant’s com mon know ledge defense. Ap pellant’s (5) testimony from Joseph F. Cullman, the former CEO of Rep ly Br. at 29-30.) Moreo ver, she has not identified the sp ecific testimony that she alleges w as erro neously excluded . Thus, the court has Philip Morris, Inc., that his company took the position that “it been left to review literally thousand s of pages of depo sition transcripts had not been proved that cigarette smoking caused lung and to speculate which testimony purportedly relates to which issue(s), cancer” and that the tobacco industry endeavored “to point even before turning to the relevanc y and Rule 403 issues. out to the public a controversy about smoking and health [15] concerns” ( id. at 39); (6) testimony from Alexander White To mpk in’s responses to the defendants’ hearsay objections are, at times, barely even suppo rted. For examp le, she asserts that ce rtain testimony is admissible pursuant to Federal Rule of Evidence 804(b)(1), but does not direct the court to any evidence in the record supporting her [13] The depositions were taken in various other tobacco-related position that the declarant is “unavailable” or her position that the lawsuits. defendants had “an opportunity and similar motive to develop the Nos. 02-3267/3309 Tompkin v. Philip 31 32 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al. Tompkin has not shown that she was prejudiced by the trial without discussing Tompkin’s argument that it had erred exclusion of this testimony. She has not identified the by excluding post-1965 evidence. specific testimony that she believes was erroneously
On appeal, Tompkin rests on bald argument. Her excluded, has not matched the testimony of specific discussion of this issue follows: individuals to specific issues, and has not made any attempt to explain how her case was prejudiced by the exclusion of
Post 1965 evidence is relevant and should not have been the testimony. Accordingly, we cannot conclude that the excluded since the factors to be considered in evidence would have caused a different outcome at trial. In re Air Crash Disaster , 86 F.3d 498, 526 (6th Cir. 1996). [16] determining punitive damages as set forth above included
a number of items which necessarily involve post injury activity. Defendants engaged in a continuing course of e. Exclusion of Post-1965 Evidence deceitful conduct throughout the period Mr. Tompkin The district court’s exclusion of post-1965 evidence does smoked and for many years thereafter. Evidence not constitute reversible error, as Tompkin has not shown that regarding events subsequent to 1965 will explain she was prejudiced by the exclusion of the evidence. defendants’ motives, intent and knowledge prior to 1966.
This relates to plaintiff’s failure to warn and consumer On April 19, 2001, the district court entered an order expectation claims. And evidence of defendants’ post granting, in part, the defendants’ motion to exclude post-1965 1965 routine practices of distorting the health risks of evidence. It interpreted this court’s prior ruling to endorse the smoking is relevant and admissible under Evid. R. 406. use of post-1965 evidence in support of Tompkin’s argument that there was no “common knowledge” in 1965 of a direct Appellant’s Br. at 27-28. link between cigarette smoking and lung cancer. However, it With only this information before us, we are unable to say ruled that any post-1965 evidence must relate to the “common that the district court abused its discretion in excluding post- knowledge” issue, and it specifically ruled that post-1965 1965 evidence. To the extent that the evidence relates to evidence was not relevant to the issue of punitive damages.
punitive damages, any error was harmless as the jury did not On August 2, 2001, the district court denied Tompkin’s reach the issue of damages. See Miller v. Caterpillar Tractor motion to reconsider its April 19 ruling. On December 20, Co. , 697 F.2d 141, 145 (6th Cir. 1983) (holding that any error 2001, the district court denied Tompkin’s motion for a new
in the admission of evidence relating to damages was harmless as “the jury never reached the issue of damages and therefore the testimony could not have contributed to its
testimony.” See Appellant’s Reply Br. at 44 (asserting, without verdict of no cause of action”). To the extent that the supporting citation, that Merryman has cancer and is too ill to travel); id. evidence relates to her failure to warn and consumer at 42 (stating only that Th omp son’s depo sition “was taken in a case expectations claims, Tompkin has not identified the excluded involving some of the d efendants in this ca se”); s ee also id. at 43 (failing evidence nor explained how the evidence would have to address the hearsay ob jection to K loepfer’s testimo ny).
illuminated the defendants’ “motive, intent and knowledge [16] Additiona lly, it appears that Tom pkin did not proffer any deposition testimony from Cullman, Spears, Kloepfer, or Merryman, thus waiving any right o f appeal. See Fed. R. Evid. 103(a)(2). Nos. 02-3267/3309 Tompkin v. Philip 33 34 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al. prior to 1966.” [17] We therefore cannot conclude that the dangerous than an ordinary consumer would expect when district court erred, much less that any error caused prejudice. used in an intended or reasonably foreseeable manner, (2) the claimed defect was present when the product left the 4. The District Court’s Refusal to Instruct the Jury on manufacturer, and (3) the claimed defect proximately caused Tompkin’s Consumer Expectations Theory the claimed injuries. Hisrich , 226 F.3d at 455. “‘[E]vidence of unsafe, unexpected product performance is sufficient to The district court’s refusal to instruct the jury on infer the existence of a product defect’ under the first prong Tompkin’s consumer expectations theory does not constitute of the consumer-expectation standard.” Id. (quoting State grounds for a new trial, as any error was harmless, given that Farm Fire & Cas. v. Chrysler Corp. , 523 N.E.2d 489, 494-95 the district court did instruct the jury on a “virtually (Ohio 1988)). “[T]he determination of whether a product is indistinguishable” claim. more dangerous than an ordinary person would expect is generally a question of fact which does not require expert
This court reviews a district court’s refusal to give a testimony.” Id. (quoting Fisher v. Ford Motor Co. , 13 requested jury instruction under an abuse of discretion F. Supp. 2d 631, 638 n.10 (N.D. Ohio 1998)). standard. Hisrich v. Volvo Cars of N. Am., Inc. , 226 F.3d 445, 449 (6th Cir. 2000). A district court’s refusal to give a
The district court refused to instruct the jury on Tompkin’s jury instruction constitutes reversible error if (1) the omitted consumer expectations theory, finding that “there was no instruction is a correct statement of the law, (2) the instruction testimony” to support this claim. J.A. at 2629. Evidently, it is not substantially covered by other delivered charges, and accepted the defendants’ argument that Dr. Smith’s (3) the failure to give the instruction impairs the requesting testimony, which Tompkin claimed created a jury issue as to party’s theory of the case. Id. “A judgment may be reversed the consumer expectations theory, addressed only the only if the instructions, viewed as a whole, were confusing, common knowledge issue. J.A. at 2624, 2629. misleading, or prejudicial.” Id. (quoting Beard v. Norwegian Caribbean Lines , 900 F.2d 71, 72-73 (6th Cir. 1990)).
Even assuming for the sake of argument that Tompkin created a triable issue as to her consumer expectations theory, Under OPLA, a product is defective in design if “[i]t is the district court’s refusal to instruct the jury on this claim more dangerous than an ordinary consumer would expect was harmless error. The district court did instruct the jury on when used in an intended or reasonably foreseeable manner.” Tompkin’s breach of implied warranty claim, a cause of Ohio Rev. Code Ann. § 2307.75(A)(2) (Anderson 2001). action that is “virtually indistinguishable” from a design Under this “consumer expectations” test, a product may be defect claim under OPLA. Tompkin , 219 F.3d at 576 proven to be in a defective condition if (1) it is more (quoting Temple v. Wean United, Inc. , 364 N.E.2d 267, 270 (Ohio 1977)); see also White v. DePuy, Inc. , 718 N.E.2d 450, 454 (Ohio Ct. App. 1998) (observing that “the two theories [17] have been used interchangeably and analyzed together” To mpk in does identify two pieces of evidence in her rep ly brief. (internal quotation omitted)). At least under the present facts, To mpk in sought to introduce deposition testimony from prior proceedings from Frederick Panzer, a former emplo yee of T I, and from B ennett the elements of a consumer expectations claim and a breach LeBow, the owner of Liggett Group, Inc. However, as discussed supra in Section 3(d), the exclusion of this testimony does not constitute grounds for a new trial. Nos. 02-3267/3309 Tompkin v. Philip 35 36 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al. of implied warranty claim are materially indistinguishable, [18] conclude that the district court’s refusal to instruct the jury on and the district court’s instruction on Tompkin’s breach of the consumer expectations claim resulted in prejudice. implied warranty claim paralleled the pattern instruction for a consumer expectations claim. [19] Consequently, we cannot 5. The Defendants’ Cross-Appeal
Given our disposition of Tompkin’s appeal, the defendants’ cross-appeal is moot. [18] The elements of a breach of implied warranty claim are (1) the existence of a defect in the product manufactured and sold by the CONCLUSION defendant, (2) the defect existed when the product left the hands of the defendant, and (3) the defect was the direct and proximate cause of the
For the foregoing reasons, we AFFIRM the judgment of plaintiff’s injuries. White v. DePuy, Inc. , 718 N.E .2d 4 50, 4 55-5 6 (O hio the district court. Ct. App. 1998). A product is defective if it is “dangerous to an extent beyond the expectations of an ordinary consumer when used in an intended or reasonably foreseeable manner.” Leichtamer v. Am. Moto rs Corp. , 424 N.E .2d 5 68, 5 77 (Ohio 19 81); see also W hite , 718 N.E.2d at 456 (“A defect is considered to exist in a product that is not of good merc hantab le quality, fit and sa fe for its ordinary intended use” (internal punctuation and quotation omitted)). The elements of a consumer expectations claim are (1) the product is more dangerous than an ordinary consumer would expect when used in an intended or rea sonably foreseeable manner, (2) the claimed defect was present when the product left the manufacturer, and (3) the claimed defect proximately caused the claimed injury. Hisrich v. Volvo Cars of N. Am., Inc. , 226 F.3d 445, 455 (6th Cir. 2000) (citing Leichtamer ). [19] The district court instructed the jury that in order to find the defendants liable on the implied warranty claim, it had to find J.A. at 268 0. The Ohio p attern jury instructions provide as follows: One, the defendant sold its cigarettes in a defective con dition CONSUMER EXPE CTAT ION T EST. A product is defective that made them unreasonably dangerous to M r. Tompkin; and under the consumer expectation test if the product is more two, the [defendant] engaged in the business of selling the dangerous than an ordinary consumer would expect when used cigarettes; three, the cigarettes were expected to and did reach in an intended or reasonably foreseeable manner. Fore seeab le Mr. Tom pkin without substantial change in the condition in uses of a product include those that might reasonably be which they were sold; and four, the defect was a direct and expected, but no t all uses which could occur. You should decide proximate cause of M r. Tom pkin’s injuries. whether the claimant’s injury occurred as a direct result of using
the product in a manner that was intended or reaso nably And I should also add and dea th [sic]. foreseeable. If it was not so used, than the claim ant has failed to prove the existence of a defect under the consumer expectation For purpo ses of this claim, a product is not unre asonably test. If the product was so used and was more dangerous than an dangerous unless it is dangerous to an extent beyond that which ordinary consumer would expect, then the claimant has proved would be contemplated by the ordinary consumer who purchases the existence o f a defec t under the co nsumer exp ectation test. them, with the ordinary know ledge com mon to the co mmunity as to their characteristics. 3 Ohio Jury Instructions § 351.09 (2)(C) (2002).
NOTES
[1] Argued: September 19, 2003 To mpk in sued both in her ind ividual capacity and as executrix of her husband’s estate. The original defendants were Philip Morris, Inc., Decided and Filed: March 30, 2004 Liggett Group, Inc., Lorillard To bacco C omp any, The American Tobacco Comp any, and Lorillard, Inc. Tompkin voluntarily dismissed her case against Lorillard, Inc. 1 Nos. 02-3267/3309 Tompkin v. Philip 3 4 Tompkin v. Philip Nos. 02-3267/3309 Morris, Inc., et al. Morris, Inc., et al. district court’s grant of summary judgment in favor of the 1959-1961 1.5 packs of Herbert Tareyton cigarettes defendants, the case proceeded to trial. A jury found for the per day defendants, and Tompkin now appeals.
[3] incidence of lung cancer in a “cohort” of individuals with Bradley further testified that smoking and asbestos exposure had an smoking histories and asbestos exposure similar to “additive” effect— meaning that an individual’s risk of disease is simply Mr. Tompkin with a “cohort” of individuals with similar the sum of the risks from the resp ective exposures— but no t a “multiplicative” or “synergistic” effect— meaning that the exposures act asbestos exposure but who never smoked. Finally, using the “together to make it worse than it would be if it was exposed to either one same data, he compared the incidence of lung cancer in a or the sum of the 2.” “cohort” of individuals with smoking histories and asbestos exposure similar to Mr. Tompkin with the incidence of lung
[4] He was unable to offer a precise figure because the extent of Mr. cancer in a “cohort” of individuals with no asbestos exposure. To mpk in’s asbestos exposure was not known. 2.65 represented the relative risk (to non-smokers) of any asbestos exposure, as calculated by He then calculated the “relative risk” of lung cancer from Bradley using the American Cancer Society data . 5.91 represented the Mr. Tompkin’s level of smoking and asbestos exposure, relative risk of lung cancer from a level o f asbestos exp osure sufficient to cause asbestosis, a figure derived from a published study. Bradley meaning the ratio of the incidence of the disease in the testified that, because Mr. Tompkin had an asbestos fiber burden “cohorts” with Mr. Tompkin’s smoking history and/or consistent with asbestosis, “his relative risk in my opinion would be
[7] argue disclose the testimony, merely state (1) in general The defendants have not cited any authority supporting their argument that, by turning over materials supporting his testimony as part terms, that Bradley will testify about the association between of his Rule 26(a )(2)(A) reliance materials ( i.e. , the “data or other asbestos exposure, cigarette smoking, and lung cancer, (2) information considered by the witness in forming the opinions”), Bradley that Bradley will testify that an additive, rather than a was relieved of the additional obligation under Rule 26(a)(2)(A) to multiplicative, model best describes the joint risk of smoking provide “a complete statement of all opinions to be expressed.” Nor, and asbestos exposure, and (3) that Bradley will testify that desp ite their insistence to the contra ry, have the defendants identified any deposition testimony in which Bradley reveals that he will testify that Mr. the relative risk of Mr. Tompkin’s level of smoking to To mpk in had an increased risk of develo ping lung cancer due to his someone who has been exposed to asbestos is less than 2.0. asbestos exposure. J.A. at 760-61. None of this information alerts the reader that
[8] Dr. Parkinson is a professor of medicine at the State University of New York and the director of the Long Island Occupational and Environmental Health Center. J.A. at 2278. He testified that he helped write the State of California’s asbestos exposure standard, that he runs a program for union workers in the building trades who have been exposed to asbestos, and that he has “a very good working knowledge of the
[6] Nor does Brad ley’s expert report list the exhibits, as Rule 26 (a) also epidemiology of asbestos-related disease.” J.A. at 2278, 2283, 2285, requires. Fed . R. Civ. P. 26 (a)(2)(B). 2289 Nos. 02-3267/3309 Tompkin v. Philip 23 24 Tompkin v. Philip Nos. 02-3267/3309 Morris, Inc., et al. Morris, Inc., et al. cancer “most likely resulted from occupational exposure to not have “a definite and firm conviction that the trial court silicates and asbestos” and that smoking was not a proximate committed a clear error of judgment.” Tobin , 993 F.2d at 542 cause of Mr. Tompkin’s cancer.
[9] J.A. at 2540. (citation omitted). Moreover, Tompkin conceded that asbestos contributed to 3. The District Court’s Exclusion of Evidence Proffered by her husband’s cancer. See J.A. at 1902 (testimony of Tompkin plaintiff’s expert, Dr. Joseph Tomashefski, a pathologist, that a. Introduction “asbestos interacted with the cigarette smoke as co- carcinogens to cause his lung cancer”); J.A. at 1886 Tompkin argues that the district court erred by excluding (testimony of Tomashefski that Mr. Tompkin’s cancer was four categories of evidence: evidence concerning research “due to the combined effect of his cigarette smoking and his and public relations organizations affiliated with the tobacco exposure to asbestos”); J.A. at 1183-84 (opening argument industry; evidence concerning non-party tobacco companies; that “tobacco and asbestos caused [Mr. Tompkin’s] lung
[11] According to Tompkin, defendants The American T oba cco Co., Tompkin contends that the district court erred by excluding Lorillard Tob acco Co., and Philip M orris, Inc., as well as other tobacco evidence concerning certain research and public relations comp anies, formed TIR C in Decemb er 1953 in response to medical groups affiliated with the tobacco industry. However, research that linked cigarette smoking to lung cancer. Tompkin alleges that TIR C, and its successor, CT R, “claimed to b e independently Tompkin has not shown that any specific document was
