Civil action commenced in the Superior
Court Department on July 17, 2017.
The case was tried before Brian A. Davis,
The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.
William J. Trach for the defendant.
Celene H. Humphries, of Florida, for the
The following submitted briefs for amici
Maura Healey, Attorney General, &
William W. Porter, Assistant Attorney General, for the Attorney General.
Traci L. Lovitt, Christopher M. Morrison,
& Kate Wallace, for R.J. Reynolds Tobacco Co.
Holly M. Polglase & Peter C. Netburn
for Product Liability Advisory Council, Inc., & another.
Andrew Rainer & Meredith Lever for
Public Health Advocacy Institute.
Douglas S. Brooks for Washington Legal
WENDLANDT, J. In this case, we consider whether a 1998
settlement agreement between Philip Morris USA Inc. (Philip Morris) and the
Attorney General precludes recovery of punitive damages against Philip Morris
under the wrongful death statute, G. L. c. 229, § 2, for claims
brought by the widow of a smoker who died from lung cancer after decades of
smoking Philip Morris cigarettes. In
1995, the Attorney General filed a complaint against Philip Morris and other
manufacturers of tobacco products and tobacco research institutes in the
Superior Court, alleging, inter alia, that the companies had engaged in a
conspiracy to mislead the Commonwealth and its citizens concerning the health
risks of smoking. The Attorney General
sought to recover the Commonwealth's costs for providing smoking-related
medical assistance to Massachusetts residents under the Commonwealth's Medicaid
and CommonHealth programs, see G. L. c. 118E, as well as injunctive
relief, civil penalties, and punitive damages pursuant to the consumer
protection act, G. L. c. 93A.
The Attorney General asked that the companies be ordered to pay
restitution and fund smoking cessation programs and public information
campaigns. The parties settled the case
in 1998, as part of a nationwide settlement.
two decades later, in 2017, the plaintiff sued Philip Morris, pursuant to the wrongful
death statute, G. L. c. 229, § 2; the plaintiff claimed that
Philip Morris caused her husband's death in 2016 by, inter alia, selling
defective and unreasonably dangerous cigarettes to him beginning in 1970. A jury awarded the plaintiff $11 million in
compensatory damages and $10 million in punitive damages. On appeal, Philip Morris argues that while
the 1998 settlement had no effect on the plaintiff's wrongful death claim
insofar as it sought compensatory damages, the settlement precluded the plaintiff's
recovery of punitive damages.
the doctrine of claim preclusion does not apply in these circumstances, we
disagree. Because Philip Morris was not
prejudiced by the other asserted errors at trial, we affirm the judgment.
We recite the relevant facts in the light most favorable to the
plaintiff. See Linkage Corp. v. Trustees
of Boston Univ., 425 Mass. 1, 4, cert. denied, 522 U.S. 1015 (1997) (facts are
recited in light most favorable to party for whom jury found).
the summer of 1970, when Fred Laramie was thirteen years old, he smoked his
first cigarette; a salesman had handed him a free sample pack of Marlboro
cigarettes, a Philip Morris brand.
Within a year, Laramie was smoking every day. One or two years later, he was smoking a pack
per day. Laramie smoked Marlboro
cigarettes for much of the rest of his life.
In December 2016, when he was fifty-nine years old, he died of lung
July 2017, the plaintiff, Laramie's wife, brought a civil action against Philip
Morris pursuant to the wrongful death statute, G. L. c. 229,
§ 2. She alleged, among other
things, that Philip Morris had committed a breach of the implied warranty of
merchantability by manufacturing, selling, and distributing defectively designed
cigarettes, and thereby causing Laramie's death.
trial, the plaintiff demonstrated that Marlboro cigarettes were defective and
unreasonably dangerous to a person who was not yet addicted to smoking. The plaintiff's expert testified that
Marlboro cigarettes were "highly engineered" to deliver nicotine and
sustain addiction, that repeatedly smoking Marlboro cigarettes caused lung
cancer, and that it would have been feasible for Philip Morris to create a
safer, nonaddictive alternative.
same expert testified that at the time Laramie began smoking in 1970, the
public perceived smoking to be "desirable, socially acceptable, [and]
pleasurable." This perception,
according to the expert, was attributable largely to "pervasive"
advertising by Philip Morris and the cigarette industry. Through testimony and documentary evidence,
the plaintiff showed that Philip Morris had engaged in a sophisticated public
relations campaign to foster doubt about the reported risks of smoking, and to
assure the public that smoking was safe, while, internally, it understood the
dangerousness and addictiveness of its cigarettes.
The evidence showed that Laramie was
addicted to the nicotine in Marlboro cigarettes, and that once he was addicted,
smoking became a "need" rather than a "choice." Although Laramie tried to quit smoking many
times, he was unable to do so, until he was diagnosed with lung cancer in 2016. He died less than seven months thereafter.
In its defense, Philip Morris introduced
evidence that there was no adequate, safer alternative design for Marlboro
cigarettes. An expert for Philip Morris
testified that all cigarettes are dangerous, and that any proposed alternative
design was not safer, not acceptable to consumers, or not technologically
feasible. Philip Morris maintained that
Marlboro cigarettes were not unreasonably dangerous to Laramie because Laramie
understood the risks of smoking. Reports
linking smoking to cancer had been published in the 1950s and 1960s, and people
had recognized that tobacco was addictive "going back almost [one hundred]
years." Moreover, there was
testimony that every pack of Marlboro cigarettes sold between 1970 and 1984
contained a warning label from the Surgeon General that "cigarette smoking
is dangerous to your health," and that every pack sold thereafter
contained one of four warning labels that are still in use. Cigarette advertisements also were banned
from television and radio beginning in January 1971, when Laramie was thirteen
or fourteen years old. In addition,
since January 1972, every print advertisement for cigarettes has been required
to include a warning label similar to those on cigarette packs. In sum, based on this evidence, Philip Morris
argued that Laramie caused his own death because, despite being adequately
informed of the health risks of smoking, Laramie chose to smoke, and then chose
not to quit smoking.
The jury found for the plaintiff on the
breach of warranty claim and awarded her $11 million in compensatory damages
and $10 million in punitive damages.
After Philip Morris's motion for a new trial was denied, it appealed to
the Appeals Court, and we transferred the case to this court on our own motion.
Discussion. Philip Morris argues
that the plaintiff is barred from recovering punitive damages because of the
prior action resulting in the 1998 settlement agreement between it and the
Attorney General. Philip Morris also
contends that a new trial is required due to two evidentiary rulings, an
asserted error in the jury instructions, and several alleged improper
statements in the plaintiff's closing argument.
We address each argument in turn.
The prior action and the 1998 settlement. In 1995, the Attorney General, "on
behalf of the Commonwealth of Massachusetts including without limitation its
Division of Medical Assistance," sued Philip Morris and other
manufacturers of tobacco products, and certain tobacco research
institutes. The Attorney General argued
that the companies successfully had conspired to "mislead, deceive and
confuse" the Commonwealth and its citizens regarding the health risks of
smoking and the addictive qualities of nicotine. The Attorney General asserted multiple causes
of action arising from this conspiracy, including fraud, breach of warranty,
and violations of the consumer protection act, G. L. c. 93A. The Attorney General sought to recover the
"millions of dollars" in costs the Commonwealth had to spend each year
to "provide medical and related services for Massachusetts citizens
suffering from diseases caused by cigarette smoking," and also sought
declaratory and equitable relief, civil penalties under G. L. c. 93A,
§ 4, and treble damages under G. L. c. 93A, § 9. The complaint asserted that the Attorney
General had reason to believe that proceedings under G. L. c. 93A,
§ 4, would be in the public interest.
the same time, all fifty States, the District of Columbia, and five territories
brought similar claims against Philip Morris and other manufacturers of tobacco
products. See Lopes v. Commonwealth, 442
Mass. 170, 174 (2004). In 1998, most of
those jurisdictions, including the Commonwealth, entered into a master
settlement agreement with the companies.
exchange for monetary and injunctive relief, the settling States released
the companies from liability for all "Released Claims" of
"Releasing Parties." The
agreement defined "Released Claims" as "Claims" for
"past conduct . . . in any way related . . . to (A)
the use, sale, distribution, manufacture, development, advertising, marketing
or health effects of, (B) the exposure to, or (C) research, statements, or
warnings regarding Tobacco Products."
In turn, "Claims" was defined as "liabilities of any
nature including civil penalties and punitive damages . . . accrued
or unaccrued, whether legal, equitable, or statutory." The agreement defined "Releasing
Parties" to include "each Settling State" as well as, inter
alia, "persons or entities acting in a parens patriae, sovereign,
quasi-sovereign, private attorney general, . . . or any other
capacity . . . (A) to the extent that any such person or entity is
seeking relief on behalf of or generally applicable to the general public
. . . as opposed solely to private or individual relief for separate
and distinct injuries." Thus, the
agreement released Philip Morris from liability for punitive damages to persons
acting as private attorneys general seeking relief on behalf of the general
public, but preserved claims for individual relief for separate and distinct
December 1998, a judge of the Superior Court approved the agreement and entered
a "Consent Decree and Final Judgment," which provided, "The
Agreement, [and] the settlement set forth therein . . . are hereby
approved in all respects, and all claims are hereby dismissed with prejudice as
b. Claim preclusion. Philip Morris maintains that the doctrine of
claim preclusion bars the plaintiff from pursuing punitive damages for her
husband's wrongful death. We review
this question de novo. See DeGiacomo v.
Quincy, 476 Mass. 38, 41 (2016).
preclusion makes a valid, final judgment conclusive on the parties and their
privies, and prevents relitigation of all matters that were or could have been
adjudicated in the action" (citation omitted). O'Neill v. City Manager of Cambridge, 428
Mass. 257, 259 (1998). "The
doctrine is a ramification of the policy considerations that underlie the rule
against splitting a cause of action, and is 'based on the idea that the party
to be precluded has had the incentive and opportunity to litigate the matter
fully in the first lawsuit.'"
Heacock v. Heacock, 402 Mass. 21, 24 (1988), quoting Foster v. Evans,
384 Mass. 687, 696 n.10 (1981).
"Considerations of fairness and the requirements of efficient
judicial administration dictate that an opposing party in a particular action
as well as the court is entitled to be free from continuing attempts to
relitigate the same claim." Wright
Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683, 688 (1974).
elements must be established to show claim preclusion: "(1) the identity or privity of the
parties to the present and prior actions, (2) identity of the cause of action,
and (3) prior final judgment on the merits." DaLuz v. Department of Correction, 434 Mass.
40, 45 (2001), quoting Franklin v. North Weymouth Coop. Bank, 283 Mass. 275,
280 (1933). As the party invoking claim
preclusion, Philip Morris bears the burden of proving that each element has
been met. See Longval v. Commissioner of
Correction, 448 Mass. 412, 416-417 (2007).
The parties do not dispute that the consent decree constitutes a prior
final judgment on the merits. See Kelton
Corp. v. County of Worcester, 426 Mass. 355, 359 (1997). Their dispute centers on the other two
Identity or privity of the parties.
Philip Morris contends that the plaintiff stands in privity with the
Attorney General with respect to their requests for punitive damages. Privity "represents a legal conclusion
that the relationship between the one who is a party on the record and the
non-party is sufficiently close to afford application of the principle of
preclusion." DeGiacomo, 476 Mass.
at 43, quoting Southwest Airlines Co. v. Texas Int'l Airlines, Inc., 546 F.2d 84,
95 (5th Cir.), cert. denied, 434 U.S. 832 (1977). Whether the plaintiff and the Attorney
General are in privity turns on (i) the nature of the plaintiff's interest,
(ii) whether that interest was adequately represented by the Attorney General,
and (iii) whether binding the plaintiff to the prior judgment is consistent
with due process and common-law principles of fairness. See DeGiacomo, supra at 43-44, and cases
Here, the plaintiff's interest in an award
of punitive damages is rooted in the wrongful death statute, G. L.
c. 229, § 2, itself. See
International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 856 n.20 (1983)
("Under Massachusetts law, punitive damages may be awarded only by
statute"). The statute creates an
"action of tort," derivative of a decedent's personal injury claim,
for the executor or administrator of a decedent's estate to recover damages
stemming from the decedent's death. See
GGNSC Admin. Servs., LLC v. Schrader, 484 Mass. 181, 185, 188 (2020).
General Laws c. 229, § 2,
permits recovery of compensatory and punitive damages, and each award is tied
directly to the decedent. Punitive
damages may be awarded where "the decedent's death was caused by the
malicious, willful, wanton or reckless conduct of the defendant or by the gross
negligence of the defendant."
G. L. c. 229, § 2.
Punitive damages "operate as 'private
fines' intended to punish the defendant and to deter future
wrongdoing." Cooper Indus., Inc. v.
Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001). As Philip Morris notes, punitive damages
"are aimed at deterrence and retribution," State Farm Mut. Auto. Ins.
Co. v. Campbell, 538 U.S. 408, 416 (2003) (Campbell), and thus serve a public
interest. See Bain v. Springfield, 424
Mass. 758, 767 (1997) (punitive damages are awarded where defendant's conduct
"warrants condemnation"); Burt v. Meyer, 400 Mass. 185, 188 (1987)
(punitive damages under G. L. c. 229, § 2, are meant "to
punish the defendant, not to restore the plaintiff"). Nonetheless, they also serve to vindicate a
personal right. See Gasior v.
Massachusetts Gen. Hosp., 446 Mass. 645, 654-655 (2006) (recognizing that
punitive damages vindicate "personal rights," as well as broader
public interest). See also Drywall Sys.,
Inc. v. ZVI Constr. Co., 435 Mass. 664, 670 (2002) ("the objectives of
punitive damages . . . include compensating claimants for their legal
costs and emotional injuries and punishing and deterring actual and potential
wrongdoers" [citation omitted]).
comply with due process, an award of punitive damages must be related to the
"actual and potential" harm caused to a plaintiff by a
defendant. See Philip Morris USA v.
Williams, 549 U.S. 346, 353-354 (2007) (Williams); BMW of N. Am., Inc. v. Gore,
517 U.S. 559, 580-581 (1996). Punitive
damages are not intended to punish a defendant for its unlawful conduct
generally, but to punish a defendant for its unlawful conduct that caused a
plaintiff's specific harm. See Williams,
supra at 354. See also Aleo v. SLB Toys
USA, Inc., 466 Mass. 398, 414 (2013) (reprehensibility of defendant's conduct
turns in part on whether harm inflicted on plaintiff was physical as opposed to
economic). In fact, the Supreme Court
has stated that "few awards exceeding a single-digit ratio between
punitive and compensatory damages, to a significant degree, will satisfy due
process." Campbell, 538 U.S. at
425. An award of punitive damages also
may not be used to punish a defendant for harm inflicted upon nonparties, or
"strangers to the litigation."
Williams, supra at 353. Because
due process precludes a defendant from being punished without "an
opportunity to present every available defense," id., quoting Lindsey v.
Normet, 405 U.S. 56, 66 (1972), permitting punishment based on harm to nonparties
implicates due process concerns, including "arbitrariness, uncertainty,
and lack of notice," Williams, supra at 354.
the plaintiff's interest in an award of punitive damages was not a general
interest in punishing Philip Morris for selling defective Marlboro cigarettes
or in recovering for harms to the public at large; rather, the plaintiff
asserted a personal interest, tied to punishing Philip Morris for the harm its
conduct specifically inflicted on the plaintiff's husband, Laramie. See Williams, 549 U.S. at 353.
This interest in punitive damages was not
adequately represented by the Attorney General in the prior action. To be sure, where a State litigates on behalf
of its citizens' "common public rights," judgments resulting from
such litigation will bind the State's citizens and, as to those rights, will
have preclusive effect. See Washington
v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658,
692 n.32 (1979); Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 340-341
(1958). Such litigation does not,
however, bar citizens from recovering for injuries to private interests. See Satsky v. Paramount Communications, Inc.,
7 F.3d 1464, 1470 (10th Cir. 1993).
Here, as detailed supra, the plaintiff
sought punitive damages for Laramie's death under the wrongful death statute,
and her award was tethered to the harm the jury determined that Philip Morris
had inflicted on Laramie. By contrast,
the Attorney General's interest in punitive damages in the 1995 action stemmed
from the consumer protection act, G. L. c. 93A, and was tied to
the harm Philip Morris had inflicted on the Commonwealth, in the form of
increased medical expenditures incurred by the Commonwealth as a result of
Philip Morris's unfair and deceptive trade practices. Specifically, the Attorney General sought
civil penalties under G. L. c. 93A, § 4, and punitive damages
under G. L. c. 93A, § 9.
General Laws c. 93A, § 4,
permits the Attorney General to bring an action "in the name of the [C]ommonwealth"
when he or she has reason to believe that a person is violating G. L.
c. 93A, § 2, and that such proceedings would be "in the public
interest." Civil penalties under G. L.
c. 93A, § 4, which are limited to $5,000 per violation, thus serve the
public's interest in punishing a defendant for violating the State's consumer
protection act. Punitive damages under
G. L. c. 93A, § 9, by contrast, are tied to the injury caused by
a defendant's use of unfair or deceptive conduct, in violation of G. L.
c. 93A, § 2. Punitive damages
under this provision are limited to from two to three times the amount of
compensatory damages awarded. See Rhodes
v. AIG Dom. Claims, Inc., 461 Mass. 486, 503 (2012).
In the 1995 action, the Attorney General
did not seek damages for personal injuries suffered by Massachusetts
residents. Rather, he sought
compensatory damages for the increased medical expenditures the Commonwealth
incurred because of the defendant cigarette manufacturers' unfair and deceptive
trade practices in the marketing of cigarettes.
Compare Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592, 600, 607 (1982) (State acting as parens patriae does not
represent rights of private individuals but, rather, health and well-being of
its citizens in general).
The punitive damages available to the
Attorney General in the 1995 action thus comprised the civil penalties under
G. L. c. 93A, § 4, as well as, under G. L. c. 93A,
§ 9, a maximum of three times the Commonwealth's compensatory
damages. The Attorney General did not
represent the plaintiff's interest in punitive damages under the wrongful death
statute, which, while cabined by the requirements of due process, see Gore, 517
U.S. at 580-583, are not limited to civil penalties and treble the amount of
the Commonwealth's compensatory damages.
In this case, by contrast, the plaintiff
has a private interest in punitive damages under G. L. c. 229,
§ 2. Compare In re Exxon Valdez,
270 F.3d 1215, 1227-1228 (9th Cir. 2001) (request for punitive damages, seeking
to vindicate private harm due to oil spill, was not barred by prior judgment
for punitive damages sought by State for public harm due to same oil
spill). Indeed, the 1998 settlement
agreement expressly preserved the rights of individual smokers to bring claims
against the defendants for "private or individual relief for separate and
distinct injuries." This
reservation indicates that the Attorney General did not understand himself to
be acting on behalf of any individual smoker, or as personal representative of
a smoker, with respect to that interest.
See DeGiacomo, 476 Mass. at 48, quoting Taylor v. Sturgell, 553 U.S.
880, 900 (2008) ("A party's representation of a nonparty is 'adequate' for
preclusion purposes only if, at a minimum . . . either the party
understood herself to be acting in a representative capacity or the original
court took care to protect the interests of the nonparty"). Although Philip Morris contends that the
so-called "carve-out" was limited to claims for compensatory damages,
the settlement agreement contains no such limitation. It explicitly states the parties' intent to
preserve personal rights, which, by statute, include an action under the
wrongful death act for conduct causing the death, and if proved, to seek both
compensatory and punitive damages.
Thus, the Attorney General did not
adequately represent the plaintiff's personal interest in punitive damages, an
interest in punishing Philip Morris for Laramie's death. See Bullock v. Philip Morris USA, Inc., 198
Cal. App. 4th 543, 557-558 (2011) (under primary rights theory of res judicata,
no preclusion where State sought to vindicate economic injuries while plaintiff
sought to vindicate personal injuries); Engle v. Liggett Group, Inc., 945 So.
2d 1246, 1260-1262 (Fla. 2006) (punitive damages settled by State pursuant to
settlement agreement with manufacturers of tobacco products was distinct from
punitive damages sought by class of plaintiffs who suffered or died from
To establish that the plaintiff and the
Attorney General are in privity, Philip Morris also must show that the
application of claim preclusion would not offend notions of fairness. See DeGiacomo, 476 Mass. at 43-44. "A person who was not a party to a suit
generally has not had a 'full and fair opportunity to litigate' the claims and
issues settled in that suit. The
application of claim . . . preclusion to nonparties thus runs up
against the 'deep-rooted historic tradition that everyone should have his own
day in court.'" Taylor, 553 U.S. at
892-893, quoting Richards v. Jefferson County, Ala., 517 U.S. 793, 798 (1996).
As stated, the plaintiff has a statutory
right to bring a wrongful death action.
See G. L. c. 229, § 2.
That right, if proved, includes a right to punitive damages. See Aleo, 466 Mass. at 412 (statute sets
minimum award of $5,000). Where the
terms of the settlement agreement explicitly preserved the rights of individual
smokers to bring their own personal injury claims, see Lopes, 442 Mass. at 177,
it would be unfair to bind the plaintiff to the Attorney General's settlement
agreement and to bar her from vindicating her statutory right. Accordingly, Philip Morris has not met its
burden of demonstrating that the Attorney General and the plaintiff are in
Identity of the cause of action.
Philip Morris contends, similarly, that the plaintiff's request for
punitive damages constitutes the same claim as the Attorney General's request,
because both sought to punish Philip Morris for the same conduct.
In determining whether two causes of
action are identical for purposes of claim preclusion, we ask whether the two
actions arose from the same transaction or series of connected
transactions. See Kobrin v. Board of
Registration in Med., 444 Mass. 837, 843 (2005) and cases cited; Mackintosh v.
Chambers, 285 Mass. 594, 596-597 (1934).
Plaintiffs are "not entitled to pursue their claim[s]
. . . through piecemeal litigation, offering one legal theory to the
court while holding others in reserve for future litigation should the first
theory prove unsuccessful." Bagley
v. Moxley, 407 Mass. 633, 638 (1990).
"The statement of a different form of liability is not a different
cause of action, provided it grows out of the same transaction, act, or
agreement, and seeks redress for the same wrong." Mackintosh, supra at 596. A "transaction" generally
"connotes a natural grouping or common nucleus of operative facts,"
see Restatement (Second) of Judgments § 24 comment b (1982), and a party
may be precluded from requesting damages for an injury flowing from conduct
that has been dealt with fully by a prior judgment, see Dwight v. Dwight, 371
Mass. 424, 429-430 (1976).
The Attorney General's complaint in the
1995 action alleged, among other things, that Philip Morris had manufactured
and sold defective and unreasonably dangerous cigarettes; so too does the
plaintiff's. Indeed, both complaints
assert breach of warranty claims against Philip Morris, and both complaints
sought to punish Philip Morris based in part on that conduct.
The allegations in the complaints,
however, differ in important respects.
The "wrong" the plaintiff sought to remedy was the loss she
and her daughter sustained due to Laramie's death, caused by Philip Morris's
malicious, willful, wanton, reckless, or grossly negligent conduct, see
G. L. c. 229, § 2. The
"wrong" the Attorney General sought to remedy, by contrast, was the
Commonwealth's increased medical expenditures caused by Philip Morris's
commission of unfair or deceptive acts or practices in violation of G. L.
c. 93A, § 2.
Indeed, Philip Morris acknowledges that
the plaintiff's claim for wrongful death is not precluded to the extent that it
sought recovery for compensatory damages based on Laramie's death. Philip Morris cites no Massachusetts
authority, however, and we are aware of none, for the proposition that, for
purposes of claim preclusion, a claim is not the "same claim" for one
type of recovery (such as compensatory damages) and yet is the "same
claim" for a different type of recovery (such as punitive damages). Accordingly, Philip Morris has not met its
burden of demonstrating that the two claims are the same, see Longval, 448
Mass. at 416-417, and the plaintiff's claim for punitive damages is not barred
by the doctrine of claim preclusion.
Other asserted errors at trial.
Following the jury's verdict, Philip Morris's motion for judgment
notwithstanding the verdict or, in the alternative, a new trial, was
denied. Aside from the issue of
preclusion, Philip Morris maintains that a new trial is required due to several
of the errors it asserted in that motion.
We review the denial of a motion for a new trial for an abuse of
discretion. See DaPrato v. Massachusetts
Water Resources Auth., 482 Mass. 375, 377 n.2 (2019).
Internal documents. Philip Morris
argues that the judge abused his discretion in allowing the plaintiff to
introduce documents internal to Philip Morris and industry trade groups, which
acknowledged the risks of smoking and outlined public relations strategies to
create doubt about those risks and to retain and attract new smokers. Philip Morris maintains that such evidence
was not relevant to the plaintiff's claims for negligence or breach of
"Evidence is relevant if (a) it has
any tendency to make a fact more or less probable than it would be without the
evidence and (b) the fact is of consequence in determining the
action." Mass. G. Evid. § 401
(2021). "To be relevant,
'[e]vidence need not establish directly the proposition sought; it must only
provide a link in the chain of proof.'"
Commonwealth v. Scesny, 472 Mass. 185, 199 (2015), quoting Commonwealth
v. Gordon, 407 Mass. 340, 351 (1990).
"A judge has broad discretion to make evidentiary rulings,"
Gath v. M/A-Com, Inc., 440 Mass. 482, 488 (2003), and "substantial
discretion" to determine whether evidence is relevant, Commonwealth v.
Mason, 485 Mass. 520, 533 (2020), quoting Scesny, supra.
Here, the judge did not abuse his
discretion in concluding that the internal documents were relevant to the
jury's consideration of consumer expectations in connection with the claim for
breach of warranty, or to counter Philip Morris's argument that Laramie
caused his own death. The documents
provided a link in the chain toward a conclusion, integral to the plaintiff's
claim, that consumers did not comprehend fully that Marlboro cigarettes were
dangerous. The documents outlined Philip
Morris's extensive strategy to conceal the health risks of smoking and to
pursue research that "denies the allegation that cigarette smoking causes
disease." See Commonwealth v.
Hinds, 487 Mass. 212, 219 (2021) ("The relevance threshold for the
admission of evidence is low" [citation omitted]). Moreover, evidence that Philip Morris
concealed information from the public and sought to persuade the public to
continue smoking by, for example, providing "smokers a psychological crutch
and self-rationale to continue smoking" tended to negate Philip Morris's
contention that Laramie caused his own death because he was adequately informed
about the risks of smoking, freely chose to smoke, and could have quit smoking
at any time.
In addition, the internal documents were
relevant to the plaintiff's request for punitive damages under G. L.
c. 229, § 2, which are available where a defendant's conduct that
caused a decedent's death was "malicious, willful, wanton[,]
. . . reckless[,] . . . or gross[ly]
negligen[t]." Evidence that Philip
Morris knew its cigarettes were dangerous and addictive, concealed that
information from the public, and actively tried to persuade the public
otherwise was relevant to the malicious, willful, wanton, reckless, or grossly
negligent manner by which Philip Morris manufactured and sold those cigarettes.
Federal Trade Commission reports.
Philip Morris argues that the judge also abused his discretion in
allowing the plaintiff's expert to read and display to the jury excerpts from
two Federal Trade Commission (FTC) reports summarizing the results of a number
of surveys on the effect of warning labels on cigarette packaging and
advertising. One report, from 1967,
stated that "youngsters consider cigarette smoking to be an acceptable and
socially desirable activity" because the health risks are not
"brought home to them in a[n] effective and meaningful way," due in
part to the "strong force" of cigarette advertising. The other report, from 1981, stated that
"less than [three] percent of adults exposed to cigarette ads ever even
read the warning," and that "few people ever notice or pay attention
to [the warnings]."
The judge overruled Philip Morris's
objection to the reports on grounds of relevancy and hearsay, because he
concluded that they were admissible as ancient documents under Mass. G. Evid.
§ 803(16) (2021). " We review
a trial judge's evidentiary decisions under an abuse of discretion
standard. See Commonwealth v. Polk, 462
Mass. 23, 32 (2012). In applying that
standard, 'we look for decisions based on "whimsy, caprice, or arbitrary
or idiosyncratic notions,"' and do not disturb the judge's ruling
"simply because [we] might have reached a different result; the standard
of review is not substituted judgment."'
Cruz v. Commonwealth, 461 Mass. 664, 670 (2012)." N.E. Physical Therapy Plus, Inc. v. Liberty
Mut. Ins. Co., 466 Mass. 358, 363 (2013).
Relevance. Philip Morris contends
that the reports were not relevant to the plaintiff's claims because, as a
matter of law, post-1969 warning labels on cigarette packaging are sufficient
to warn the public about the risks of smoking.
See Altria Group, Inc. v. Good, 555 U.S. 70, 79 (2008). As Philip Morris asserts, Federal law
preempts State law failure-to-warn claims based on post-1969 warning
labels. In 1969, Congress preempted
"any State law claim imposing liability based on a showing that a
cigarette manufacturer's 'post–1969 advertising or promotions should have
included additional, or more clearly stated, warnings.'" Evans v. Lorillard Tobacco Co., 465 Mass.
411, 440-441 (2013), quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504,
524 (1992) (Stevens, J., plurality opinion).
The plaintiff's breach of warranty claim, however, did not assert
liability on the basis that Philip Morris should have included additional, or
more clearly stated, warnings. Rather,
the complaint alleged that Philip Morris was liable for the manufacturing and
sale of unreasonably dangerous and defectively designed Marlboro cigarettes; as
part of that claim, the plaintiff sought to demonstrate consumer expectations
regarding Marlboro cigarettes around the time that Laramie began smoking. See Evans, supra at 422-428.
While warnings accompanying a product are
relevant in determining whether the product is unreasonably dangerous, see
Evans, 465 Mass. at 425, consumer expectations also may depend upon the manner
in which the product is portrayed and marketed, see Restatement (Third) of
Torts: Products Liability § 2
comment g (1998). Philip Morris argued
at trial that Laramie fully understood the risks of smoking, in part due to the
presence of the warning labels. Evidence
that consumers did not notice or read the mandated warnings thus was relevant,
because it made it more likely that consumers formed opinions about cigarettes
through sources other than the warning labels (such as Philip Morris's
advertising) and thus that, despite the warnings, consumers believed that
Marlboro cigarettes were safe.
To the extent that there was a risk that the
jury might have used this evidence improperly, see Evans, 465 Mass. at 440-442,
the judge mitigated that risk by providing multiple, contemporaneous limiting
instructions informing the jury that the plaintiff was not claiming a failure
to warn, and that the warnings were adequate as a matter of law to inform the
public of the risks of smoking. Cf.
Zucco v. Kane, 439 Mass. 503, 510 (2003).
Hearsay. Philip Morris also
maintains that the FTC reports contained inadmissible hearsay. "The rule against hearsay bars admission
of out-of-court statements offered for their truth." Hinds, 487 Mass. at 234, quoting Commonwealth
v. Mendes, 463 Mass. 353, 367-368 (2012).
The ancient documents exception to this rule permits the admission of a
"statement in a document that is at least thirty years old and whose
authenticity is established." Mass.
G. Evid. § 803(16). See Langbord v.
United States Dep't of the Treasury, 832 F.3d 170, 190 (3d Cir. 2016), cert.
denied, 137 S. Ct. 1578 (2017) (ancient document exception is based on
rationale that authenticated ancient documents bear certain indicia of
trustworthiness). While Philip Morris
does not challenge the authenticity of the FTC reports, it argues that the
statements in the reports constitute hearsay within hearsay because the
statements came not from the FTC itself but rather from third-party responses
to consumer surveys.
Generally, where multiple out-of-court
statements are embedded in one, the combined statement is admissible only if
"each out-of-court assertion falls within an exception to the hearsay
rule." Commonwealth v. Rivera, 482
Mass. 259, 268 (2019), quoting Commonwealth v. Alcantara, 471 Mass. 550, 558
(2015). See Mass. G. Evid. § 805
(2021). While statements by the author
of the document may be introduced under the ancient documents exception,
"[i]f the document contains more than one level of hearsay, an appropriate
exception must be found for each level."
United States v. Hajda, 135 F.3d 439, 444 (7th Cir. 1998) (discussing
analogous Federal rule). See Langbord,
832 F.3d at 190. Accordingly, because
the FTC reports contained multiple levels of hearsay, the judge erred in
concluding that the excerpts of the reports were admissible under the ancient
This error, however, did not prejudice the
defendant, as the improperly introduced evidence was cumulative of other,
properly introduced evidence. See Slater
v. Burnham Corp., 4 Mass. App. Ct. 791, 791 (1976). The plaintiff introduced numerous
advertisements and public statements from Philip Morris to demonstrate that the
public perception of smoking around the time Laramie smoked his first cigarette
was that smoking was not unreasonably dangerous. Cf. Kace v. Liang, 472 Mass. 630, 646 (2015).
Jury instructions. In his final
charge, the judge instructed:
plaintiff is not making any claim in this case that the Defendant failed to
warn Mr. Laramie of the dangers associated with smoking or engaged in any
fraud. As I told you during trial, the United
States Congress has mandated since July 1 of 1969 what warning labels cigarette
manufacturers such as the Defendant have been required to place on all
cigarette packages and cigarette advertisements, and you must accept as true in
this case that those congressionally mandated warnings were adequate as a
matter of law to warn Mr. Laramie and other members of the public of the
hazards associated with smoking. The
law, however, does not permit a cigarette manufacturer through its statements
or actions to mislead consumers or make misrepresentations about the risks or
hazards associated with smoking."
argued during the charge conference, as it does before us, that the jury should
not be instructed as to this last sentence because the statement invites the
jury to impose liability based on theories of fraud, conspiracy, and failure to
warn -- theories of liability that were not before the jury.
"In a civil trial, a judge should
instruct the jury fairly, clearly, adequately, and correctly concerning
principles that ought to guide and control their action." Doull v. Foster, 487 Mass. 1, 5-6 (2021),
quoting DaPrato, 482 Mass. at 383 n.11.
We do not review an individual instruction in isolation, see Selmark
Assocs., Inc. v. Ehrlich, 467 Mass. 525, 547 (2014); rather, "[j]ury
instructions must be construed as a whole to prevent isolated misstatements or
omissions from constituting reversible error where there is little chance that
the jury would have misunderstood the correct import of the charge." Commonwealth v. Oliveira, 445 Mass. 837, 844
(2006), citing Commonwealth v. Owens, 414 Mass. 595, 607 (1993).
Here, the preceding instructions made
clear that the plaintiff had not raised claims of failure to warn or
fraud. The judge also twice instructed
the jury that the warning labels were adequate, as a matter of law, and that
the plaintiff had not raised a claim of failure to warn. The judge thereafter outlined the elements of
the claims on which the jury permissibly could have found liability; those
instructions did not invite the jury improperly to impose liability based on
any misrepresentation Philip Morris might have made. In addition, the verdict slip, which the
judge reviewed with the jury, explicitly specified the contested elements of
the plaintiff's claims. The
instructions, viewed as a whole, thus made clear to the jury which claims were
Closing argument. Philip Morris
argues that a new trial is necessary due to improper statements by the
plaintiff's counsel during closing argument.
Philip Morris contends that counsel misstated the evidence, made
arguments not based on the evidence, disparaged opposing counsel, and enflamed
the jurors' emotions. We examine whether
the challenged statements were improper and, if so, whether they were
prejudicial. See Haddad v. Wal-Mart
Stores, Inc. (No. 1), 455 Mass. 91, 112 (2009).
We review the challenged remarks in the context of the entire argument,
the evidence presented at trial, and the judge's instructions. See Santos v. Chrysler Corp., 430 Mass. 198,
Philip Morris argues that the plaintiff's
trial counsel misstated the evidence by telling the jury that Laramie would not
have become addicted to low nicotine cigarettes (a "safer"
alternative that the plaintiff claimed Philip Morris chose not to manufacture
or market), and that there was no evidence that Laramie would have started
smoking simply because his friends and parents smoked. In closing, a lawyer may argue fair
inferences from the evidence introduced.
See Back v. Wickes Corp., 375 Mass. 633, 644 (1978); Mass. G. Evid.
§ 1113(b) (2021). That is precisely
what the plaintiff's counsel did here.
One of the plaintiff's experts testified that low nicotine cigarettes
are unlikely to lead to persistent daily use or to cause addiction among young
people. Another expert testified that
"if you had a nonaddictive cigarette, people could choose to stop
[smoking] whenever they wanted."
Likewise, while the trial testimony indicated that Laramie's friends and
parents smoked, it was not an unreasonable inference from the evidence that
Laramie would not necessarily have followed their lead. See Commonwealth v. DeCaro, 359 Mass. 388,
391 (1971) (no error where prosecutor did not distort evidence before jury).
Philip Morris maintains that the
plaintiff's counsel improperly disparaged Philip Morris's counsel by telling
the jury that Philip Morris's counsel "want[s] to confuse you," and
by accusing him of putting words in the mouths of witnesses through leading
questions. Counsel may, within reason,
be critical of an opposing counsel's tactics.
See Commonwealth v. Fernandes, 436 Mass. 671, 674 (2002). It was not improper for the plaintiff's
counsel to argue that Philip Morris was seeking to distract the jury from what
the plaintiff viewed as the more relevant evidence.
Philip Morris also argues that the
plaintiff's counsel made a number of remarks designed to enflame the jury's
emotions, such as mentioning Philip Morris's corporate revenues, telling the
jury that they "can't punish [Philip Morris] for all the other people that
they killed," and stating that "[r]egular lung cancer wasn't good
enough . . . [Philip Morris] came up with a whole new different kind
Counsel discussed Philip Morris's net
revenues in the context of suggesting how the jury could calculate punitive
damages. The statements were not
improper, as the financial information was in evidence, and were relevant to
the jury's determination of punitive damages.
See Restatement (Second) of Torts § 908(2) (1979).
The statement that the jury could not
punish Philip Morris "for all the other people that they killed," on
the other hand, was improper and inflammatory.
Nonetheless, a "certain measure of jury sophistication in sorting
out excessive claims on both sides fairly may be assumed." Commonwealth v. Kozec, 399 Mass. 514, 517
(1987). In addition, the judge gave an
immediate curative instruction.
Following closing arguments, in response to Philip Morris's objection,
the judge instructed the jury that "this case is not about what happened
to anybody other than Fred Laramie."
In his final charge, the judge again instructed the jury that they could
not assess punitive damages against Philip Morris for any harm caused to
persons other than Laramie and his family.
See Gath, 440 Mass. at 492 (curative instruction may remedy any
prejudice). See also Commonwealth v.
Durand, 475 Mass. 657, 669 (2016). The
curative instructions were sufficient to dispel any prejudice from the
statement, which, absent such instructions, was not so inflammatory as to have
required a new trial. See id.
The statement that Philip Morris had
invented a new kind of cancer because "[r]egular lung cancer wasn't good
enough" also was improper. Although
the statement was loosely based on the evidence that adenocarcinoma, the type
of lung cancer Laramie contracted, increased in prevalence following the
emergence of filtered cigarettes, such as Marlboros, the remark nonetheless was
clearly designed to arouse the jurors' passions and sympathies. In responding to Philip Morris's objection,
the judge decided to "[l]eave it up to the jury to make [the]
determination" whether the statement was based on the evidence. The judge had the discretion to decide
whether any corrective action was necessary.
See Santos, 430 Mass. at 214.
While the remark should not have been made, considered in the context of
the entire argument, it would have had no effect on the jury, and caused no
 Individually, and as personal
representative of the estate of Fred R. Laramie.
 We acknowledge the amicus briefs
submitted by the Attorney General and Public Health Advisory Institute in
support of the plaintiff; Washington Legal Foundation, Product Liability
Advisory Counsel, Inc., and Chamber of Commerce of the United States of
America, in support of the defendant; and R.J. Reynolds Tobacco Co.
 The plaintiff also filed claims
against a distributor of cigarettes and a retail store; she voluntarily
dismissed those claims prior to trial.
 The plaintiff also brought claims
against Philip Morris for civil conspiracy and negligence. She dismissed the civil conspiracy claim
prior to trial, and the jury found for Philip Morris on the negligence claim.
 The defendants agreed to pay
approximately $240 billion to the settling States over twenty-five years, and
to pay approximately $9 billion per year thereafter in perpetuity, subject to
various adjustments. The agreement
allocated approximately four percent of those payments to the
Commonwealth. The defendants also agreed
to restrict cigarette advertising and lobbying efforts, to permit public access
to certain internal documents, and to fund youth education programs.
 In motions for partial summary
judgment and for a directed verdict, Philip Morris argued that claim preclusion
barred the plaintiff from recovering punitive damages. A Superior Court judge denied the motion for
partial summary judgment. At trial, a
different Superior Court judge denied the motion for a directed verdict.
 Compensatory damages under G. L.
c. 229, § 2, are based on the "fair monetary value of the
decedent to the persons entitled to receive the damages recovered," such
as a spouse or a child, see G. L. c. 229, § 1, and the
"reasonable funeral and burial expenses of the decedent." They "are intended to redress the
concrete loss that the plaintiff has suffered by reason of the defendant's
wrongful conduct." Cooper Indus.,
Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001).
 General Laws c. 93A seeks to provide a
"more equitable balance in the relationship of consumers to persons
conducting business activities," see Commonwealth v. DeCotis, 366 Mass.
234, 238 (1974), and prohibits "unfair or deceptive acts or practices in
the conduct of any trade or commerce," G. L. c. 93A, § 2.
 We recognize that appellate courts in
New York and Georgia have taken a different view and have concluded that the
master settlement agreement precludes their residents from seeking punitive
damages in wrongful death claims against manufacturers of tobacco
products. See Brown & Williamson
Tobacco Corp. v. Gault, 280 Ga. 420, 424 (2006) (Gault); Fabiano v. Philip
Morris Inc., 54 A.D.3d 146, 151 (N.Y. 2008).
These determinations, however, have been based on specific statutes or
prior precedent in those States which differ markedly from Massachusetts
In New York, the court reasoned that
punitive damages, "even when asserted in the context of a personal injury
action, [do not] essentially relate to individual injury," and relied on
New York precedent holding that the imposition of punitive damages for private
purposes violates public policy. See
Fabiano, 54 A.D.3d at 150, citing Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354,
358 (1976). This court has explicitly
declined to adopt New York's view that punitive damages serve only a public
purpose, see Drywall Sys., Inc., 435 Mass. at 670, and we discern no reason to
depart from that determination.
In Georgia, the court reasoned that
Georgia law "limits the recovery of punitive damages in product liability
cases to one award of punitive damages from a defendant . . . 'for
any act or omission . . . regardless of the number of causes of
action which may arise from such act or omission,'" and seventy-five
percent of the award goes to the State.
See Gault, 280 Ga. at 422-423, quoting Ga. Code Ann.
§ 51-12-5.1(e)(1). Punitive damages
in Massachusetts under G. L. c. 229, § 2, are not so limited,
and the plaintiff, not the State, receives them. See Burt, 400 Mass. at 190.
 Philip Morris also argues that, under
the terms of the 1998 settlement agreement, the plaintiff was a "Releasing
Party" and therefore barred from recovering punitive damages. The plaintiff was not a "Releasing
Party" within the meaning of the agreement. See Williams v. RJ Reynolds Tobacco Co., 351
Or. 368, 387 (2011) (estate seeking punitive damages was not releasing party
under master settlement agreement). The
plaintiff sought to punish Philip Morris for the harm that it inflicted on
Laramie specifically; the plaintiff did not seek relief "on behalf of or generally
applicable to the general public."
 For example, one Philip Morris
memorandum regarding a 1964 Surgeon General report linking smoking to cancer
indicated that the company would need to "give smokers a psychological
crutch and self-rationale to continue smoking." Another memorandum concerning the industry's
efforts to fund research into smoking-related diseases stated, "Let's face
it. We are interested in evidence which
we believe denies the allegation that cigarette smoking causes disease."
 "A seller breaches its warranty
obligation when a product that is defective and unreasonably dangerous for the
ordinary purposes for which it is fit causes injury" (quotations,
citations, and alterations omitted).
Haglund v. Philip Morris Inc., 446 Mass. 741, 746 (2006). A product may be defective and unreasonably
dangerous due to a design defect. See
Evans v. Lorillard Tobacco Co., 465 Mass. 411, 422 (2013). A product has a design defect "when the
foreseeable risks of harm posed by the product could have been reduced or
avoided by the adoption of a reasonable alternative design." Restatement (Third) of Torts: Products Liability § 2(b) (1998). In determining "whether an alternative
design is reasonable and whether its omission renders a product not reasonably
safe," a jury may consider a broad range of factors, including "the
nature and strength of consumer expectations regarding the product." Restatement (Third) of Torts: Products Liability § 2 comment f
(1998). See Evans, supra.
 The parties stipulated that the
reports themselves would not be admitted in evidence.
 Appellate review of two statements
challenged on appeal to which Philip Morris did not object at trial --
references to Laramie living "paycheck-to-paycheck" and
characterizing Philip Morris's argument as "muck on the wall" -- has
not been preserved. See Gath, 440 Mass.
 The jury appears to have heeded the
judge's instructions; they awarded the plaintiff an amount of punitive damages
($10 million) far less than that which counsel suggested would be reasonable
($410 million) for the plaintiff's own injuries, and in proportion to the
amount of compensatory damages they awarded ($11 million).