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Pritchard v. Liggett & Myers Tobacco Company.

October 12, 1961

OTTO E. PRITCHARD, APPELLANT,
v.
LIGGETT & MYERS TOBACCO COMPANY.



Author: Staley

Before GOODRICH, STALEY and FORMAN, Circuit Judges.

STALEY, Circuit Judge.

Otto E. Pritchard, plaintiff, commenced this action, alleging that cancer of his right lung was caused by smoking Chesterfield cigarettes between 1921 and the time it was removed in 1953.*fn1 Basing his case on negligence and breach of warranty, plaintiff sought compensatory and punitive damages.

To support the negligence claim, plaintiff alleged that Chesterfield cigarettes, manufactured by defendant Liggett & Myers Tobacco Company, contained unwholesome, deleterious and harmful carcinogenic ingredients, making them unsafe for human consumption. Plaintiff also alleged that defendant represented that smoking Chesterfields was not harmful.*fn2

The district court first required proof of the causal relationship between smoking and lung cancer, which plaintiff attempted to establish through the testimony of five medical experts. First there was Dr. William F. Kremer, who diagnosed plaintiff's condition and at the time of trial was medical director of the Denver Chemical Corporation. Previous to that, Dr. Kremer had served a residency in internal medicine and had had extensive experience in therapeutics and diagnosis. He was certified by the American Board of Internal Medicine and had served as a member of the faculty of the University of Pittsburgh Medical School. He was followed by Dr. Victor H. Kaunitz, an extensively trained and experienced thoracic surgeon from Buffalo, New York. The record shows that he did postgraduate work in thoracic surgery at several hospitals and at the time of his testimony was attending thoracic surgeon at five hospitals in New York state. Dr. Richard H. Overholt, of Boston, Massachusetts, testified that after medical school he did postgraduate work in surgery at the University Hospital in Philadelphia and served as instructor in surgery at the University of Pennsylvania. He established and, at the time of his testimony, was a member of the Overholt Thoracic Clinic in Boston. Dr. Charles S. Cameron testified that after receiving his medical education, he served as a Rockefeller Fellow at the Memorial Hospital in New York, a large cancer clinic. For a time he served as medical and scientific director of the American Cancer Society. At the time of his testimony, Dr. Cameron was Dean of Hahnemann Medical College in Philadelphia where a research project dealing with the relationship between tobacco and cancer was in progress. He also served with several national organizations and an international one dealing with cancer control. His writings were extensive and included publications dealing with cancer prepared for governmental agencies. Dr. Morton L. Levin of Buffalo, New York, was the plaintiff's last medical expert. He also was a well qualified witness. In 1936 he came to the Cancer Hospital of the State of New York to specialize in the study of the epidemiology of cancer. He was associated with a special commission created by the New York State Legislature in 1937 to study cancer and served as director of the Bureau of Cancer Control of the New York State Department of Health. At the time of his testimony, Dr. Levin was professor and head of the Department of Epidemiology at the Roswell Park Memorial Institute and a member of the National Research Council's special committee created to study the carcinogenic effect of food additives, and was associated with the World Health Organization of the United Nations.

The defendant made a series of motions. First, it moved to dismiss the warranty count which was denied, only to be followed by another motion made at the close of plaintiff's evidence on causation and another made at the close of plaintiff's case based on the contention that plaintiff failed to establish negligence. The court granted the motion as to the breach of warranty claim but denied it as to the negligence count. After both parties had introduced all of their evidence and rested, the district court granted defendant's motion for a directed verdict, saying:

"* * * The Court is of the opinion that no substantial evidence has been offered to support a verdict against the defendant on any theory of negligence, and that fair minded men could not differ as to the conclusions of fact to be drawn from the evidence.

"The motion is granted, and the Jury is directed to find a verdict in favor of the defendant Liggett and Myers Tobacco Company, and against the plaintiff Otto E. Pritchard."

Plaintiff's basic complaint is that he was denied the right, allegedly guaranteed to him by the Seventh Amendment to the Constitution, to have his case submitted to the jury. He refines his position by contending that even though this is a diversity case, for the purpose of determining whether his case should be submitted to the jury, the standards applicable to actions under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, et seq., and the Jones Act, 46 U.S.C.A. § 688, et seq., must be used in a federal court. See Dill v. Scuka, 3 Cir., 1960, 279 F.2d 145; 5 Moore's Federal Practice 38.09 et seq. (1951). Further, he contends that even if the standards adopted by the Pennsylvania courts apply, he is entitled to have his case submitted to a jury under his evidence. The defendant answers that Pennsylvania law governs both as to what the plaintiff had to prove and the sufficiency of the evidence to go to the jury, and that under that standard the district court properly directed a verdict.

That question, however, need not be decide here, for we think that even under the rule followed in Pennsylvania the plaintiff's evidence in the record before us definitely presents a jury question. Larkin v. May Department Stores Co., 3 Cir., 1958, 250 F.2d 948. In Pennsylvania, a directed verdict can be entered only where the facts are such that reasonable men could not draw different conclusions from them. In passing on the motion, a court must view the evidence in the light most favorable to the party opposing it, giving him the benefit of every favorable inference. Hardiman v. Pittsburgh Railways Co., 1940, 339 Pa. 79, 14 A.2d 72; Hayes v. Axelrod, 1939, 332 Pa. 518, 3 A.2d 346; 6 Standard Pennsylvania Practice 98 (1960).

It will be remembered that at trial the court required proof of causation before proceeding to other issues, and at this point the district court denied a motion by defendant to dismiss. In ultimately granting the motion under F.R.Civ.P.Rule 50, 28 U.S.C.A., the district court did not make it clear whether the proof of causation was insufficient or whether his decision was based solely on plaintiff's failure to prove negligence. That being so, we deem it advisable to meet the question of the sufficiency of the evidence of causation first. We have outlined above the background of plaintiff's witnesses who testified as to causation. Each of the doctors testified that in his opinion plaintiff's cancer was caused by long continued smoking.

Defendant, however, contends that even though the plaintiff's experts may have given categorical opinions concerning the relationship between smoking and cancer, such opinions should have no validity since there was no proof of the acceptance of this relationship by the medical profession. Aside from the fact that the testimony in question reveals that such acceptance existed, this contention has no merit unless we are to overrule what we said in Brett v. J. M. Carras, Inc., 3 Cir., 1953, 203 F.2d 451, which was approved by us in Deitz v. United States, 3 Cir., 1955, 228 F.2d 494. See also Puhl v. Milwaukee Automobile Ins. Co., 1959, 8 Wis.2d 343, 99 N.W.2d 163; People of the State of New York v. Williams, 1959, 6 N.Y.2d 18, 187 N.Y.S.2d 750, 159 N.E.2d 549; McKay v. Texas, 1950, 155 Tex.Cr.R. 416, 235 S.W.2d 173; 2 Wigmore, Evidence §§ 662, 663 (1940, 3d ed.). This we have no intention of doing. At best, defendant's contention is one for the jury since it goes to the weight to be given the several expert opinions.

The defendant's motion to dismiss the warranty count, which was granted, was based on the ground that plaintiff's notice of breach was neither timely nor sufficient as a matter of law.*fn3 In addition, the defendant contends that no breach occurred since plaintiff failed to prove causation, that no express warranty existed, and that in the absence of proof that Chesterfield cigarettes did not meet the standard of cigarettes generally sold, there is no evidence to support a breach of an implied warranty of merchantability.

Under a warranty of fitness for a particular use, the seller warrants that the goods sold are suitable for the special purpose of the buyer, while a warranty of merchantability is that the goods are reasonably fit for the general purposes for which they are sold. Frantz Equipment Co. v. Leo Butler Co., 1952, 370 Pa. 459, 88 A.2d 702. Here, the facts support both a warranty of merchantability and fitness for use, i.e., that Chesterfield cigarettes were reasonably fit and generally intended for smoking without causing physical injury. The evidence compellingly points to an express warranty, for the defendant, by means of various advertising media, not only repeatedly assured plaintiff that smoking Chesterfields was absolutely harmless, but in addition the jury could very well have concluded that there were express assurances of no harmful effect on the lungs. As far back as July 16, 1934, an advertisement appeared in a Pittsburgh newspaper claiming that as to Chesterfields:*fn4

"A good cigarette can cause no ills and cure no ailments * * * but it gives you a lot of pleasure, peace of mind and comfort."

Later that month, it was said:*fn5

"There is no purer cigarette made than ...


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