Sunday, August 23, 2009

CIVIL: Nevada Supreme Court Sides with Cigarette Company--and I Agree with Them

A man named Joe lost his wife in 1999 to brain cancer. The wife, Pam, had smoked for thirty years, starting in 1969, until she got lung cancer, which lead to her brain cancer. Back when Pam started smoking, cancer-stick companies only had to put general health warnings on the packages. It wasn’t until the 1980s that the warning labels had to include the threat of cancer.

Joe then did the American thing; he sued the manufacturer of Pam’s particular brand of coffin nails, Phillip Morris, in a Nevada federal court. He, or his attorney, told the court that Phillip Morris is strictly liable for Pam’s death. Strict liability is a lawsuit claim used when a business sells a dangerous product. If Joe can prove that Phillip Morris caused Pam’s death, Phillip Morris will have to pay. But Joe did not want to have to prove his case. Instead, he wanted the Court to make Phillip Morris prove that they did not cause her death. Usually a Plaintiff has to prove his case, but here, Joe figured the wicked Phillip Morris must disprove its case without Joe having to prove the normally required element of causation.

Joe basically wanted the court to tell the jury that the jury could presume that if the cigarette packages had the cancer warning when Pam started smoking, she would not have started smoking. In other words, Joe wanted the jury to assume from the beginning that Phillip Morris is in the wrong and Phillip Morris then had to prove that it was not in the wrong. Somehow, Phillip Morris would have to provide evidence that Pam would have smoked their cigarettes even if the cancer warning label had been on the packages--clear back in the 1960s. Come on now, that was the 1960s, dude. Do you really think a lot of the young people back then would have listened to warnings? I mean, gosh, wasn’t that the time of experimental drug use. Also, wasn’t the military actually handing out packs of cigarettes to the soldiers?

Anyway, Phillip Morris did not want to have to try to prove to a jury that Pam would have ignored the warning labels. They told the federal judge that this “heeding presumption” should not apply in this case. A heeding presumption is what I’ve been talking about--a jury may presume that a person would have heeded a warning if a warning had been given and the defendant then has to try to prove that the person would not have heeded the warning. It’s almost like a religious person asking an atheist to prove that God does not exist.

Well, since this is a federal case in Nevada and the federal judge did not know what to do, the judge decided to ask the Nevada Supreme Court what it thought. Does Nevada condone “heeding presumptions” like some other States do? The Nevada Supreme Court answered, “No!” Phillip Morris therefore won this little skirmish. Joe would have to prove causation.

You might ask why the Nevada Supreme Court would side with the manufacturers of death on this issue. Well, our scholars in black robes said that a heeding presumption is contrary to Nevada law and public policy. The Nevada Supreme Court is correct on the law issue. Nevada has never allowed heeding presumptions. And, I believe their point about public policy is sound too.

Joe said that other States have heeding presumptions because it forces companies to better label their products, and therefore heeding presumptions are good for the public, so they are good public policy. If companies knew they could be sued for not properly labeling their dangerous goods, then they would label them better.

Nevada is smarter than those other States, though, because we tell the companies that sell stuff here to make sure the stuff isn’t dangerous in the first place. If it’s not dangerous, then why would you have to warn? In other words, the public is safer when companies can be sued for strict liability. Warning labels do not make us safer, safer products do. I’ll end this with a Supreme Court Justice’s quote from the case:

[…] we strongly adhere to the principle that a manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in the warning. Therefore, we conclude that it is better public policy not to encourage a reliance on warnings because this will help ensure that manufacturers continue to strive to make safe products.

If you still want to read this long, boring Nevada Supreme Court decision after I have taken all the trouble of explaining it, you may. The decision is called Rivera v. Phillip Morris, and it was decided in June 2009.

Copyright: August 23, 2009
By: Anthony M. Wright, Juris Doctor

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