The Massachusetts Supreme Court reinstates the lawsuit of a woman whose husband died of lung cancer.

01:00 AM EDT on Friday, May 19, 2006

BY DENISE LAVOIE
Associated Press

BOSTON (AP) -- The state's highest court yesterday limited one of the tobacco industry's most successful defenses in wrongful-death lawsuits, ruling the companies cannot shield themselves from liability simply by claiming that smokers acted unreasonably by lighting up when they knew cigarettes were dangerous.

The court's ruling came in a wrongful-death lawsuit filed against Philip Morris Inc. by Brenda Haglund, a former Douglas woman whose husband died of lung cancer in May 2000.

The lawsuit was dismissed by a lower court judge.

But the state Supreme Judicial Court reinstated Haglund's suit, ruling that the so-called "personal-choice defense" often used by tobacco companies cannot be used by Philip Morris in Haglund's case. The court ruled that type of defense can only be used if a reasonably safe product was used in an unreasonable way.

"Here, however, both Philip Morris and the plaintiff agree that cigarette smoking is inherently dangerous and that there is no such thing as a safe cigarette. Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes," the court said in its unanimous, 7-0 ruling.

The court said it would not block the use of the personal-choice defense in every cigarette-related case. The defense might be used when a person's behavior was "overwhelmingly unreasonable," such as when someone with emphysema decided to start smoking.

But the court said the defense, "which serves to deter unreasonable use of products in a dangerous and defective state, will, in the unusual course, be inapplicable."

Richard Daynard, a Northeastern University law professor, said the ruling could have broad implications.

"It's an extremely important decision. I think it's the first time that any court in the country has squarely held that as a matter of law, except in extraordinary and unlikely cases, this [personal-choice] defense cannot be used," Daynard said.

"It eliminates the argument in Massachusetts that an ordinary consumer of cigarettes cannot sue a tobacco company because the ordinary consumer knew that there was something wrong with the product," said Daynard, director of Northeastern's Tobacco Control Resource Center, which provides tobacco policy information to government officials and public health advocates.

But Paul E. Nemser, an attorney for Philip Morris, said the ruling was limited to one of many defenses available to Philip Morris and does not have the broad reach suggested by Daynard. Nemser said the court's ruling allows Philip Morris the chance to develop evidence to support its defense.

"The issue that the court was addressing was whether the mere ordinary use of cigarettes could give rise to an unreasonable-use defense, and what the court ruled is that if there are unusual circumstances making the use of cigarettes unreasonable, something about the particular smoker, for example, such a defense could be available," Nemser said.

Roberto Braceras, another attorney for Philip Morris, said a critical aspect of Haglund's case would be for her to prove that there was a specific defect in the cigarettes smoked by her husband.

"We do not believe that the plaintiff can show in this case that such a defect existed," Braceras said.

David Geiger, an attorney who filed a friend-of-the-court brief in the case for the Product Liability Advisory Council, a lobbying group for product manufacturers, criticized the ruling, saying it treats cigarette makers differently than other manufacturers.

"All other manufacturers can say that a consumer knew that this product was generally dangerous for consumers, but cigarette manufacturers can't," Geiger said.

"They seem to be creating a defense with a super-high threshold, which is uniquely applicable to cigarettes," he said.

Brenda Haglund's attorney, Stephen Fine, said Haglund, who now lives in Winter Haven, Fla., is pleased that her lawsuit can move forward. The suit seeks unspecified damages.

"This represents to her the realization that perhaps her husband didn't die in vain," Fine said.