Nunnally v. R. J. Reynolds Tobacco Co.


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Docket Number: 2001-CA-01079-SCT

Supreme Court: Opinion Link
Opinion Date: 03-25-2004
Opinion Author: Smith, P.J.
Holding: Affirmed

Additional Case Information: Topic: Wrongful death - Special interrogatory - Weight of evidence - Risk-utility instruction - Unreasonably dangerous condition - Negligence instruction - Exclusion of document - Impeachment - Youth marketing practices - Opinion testimony - M.R.E. 703 - Cross-examination - Challenges for cause
Judge(s) Concurring: Pittman, C.J., Waller, P.J., Cobb and Dickinson, JJ.
Non Participating Judge(s): Diaz and Carlson, JJ.
Dissenting Author : Easley, J.
Concurs in Result Only: Graves, J.
Procedural History: Jury Trial
Nature of the Case: CIVIL - WRONGFUL DEATH

Trial Court: Date of Trial Judgment: 07-12-2000
Appealed from: DeSoto County Circuit Court
Judge: George C. Carlson, Jr.
Disposition: The jury returned a verdict in favor of the Appellee.
Case Number: CV 92-270- CD06252001

  Party Name: Attorney Name:  
Appellant: Kay T. Nunnally, Individually and on Behalf of All Wrongful Death Beneficiaries of Joseph Lee Nunnally, Deceased




CHARLES M. MERKEL JACK R. DODSON, JR.



 

Appellee: R. J. Reynolds Tobacco Company MICHAEL W. ULMER LEWIS W. BELL EDWARD C. SCHMIDT JOSEPH M. DAVID WILLIAM H. LISTON DAVID B. ALDEN  

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Topic: Wrongful death - Special interrogatory - Weight of evidence - Risk-utility instruction - Unreasonably dangerous condition - Negligence instruction - Exclusion of document - Impeachment - Youth marketing practices - Opinion testimony - M.R.E. 703 - Cross-examination - Challenges for cause

Summary of the Facts: Kay Nunnally filed a civil action against R. J. Reynolds Tobacco Company, Basic Foods, and other retailers, asserting that the cigarettes sold to her husband were defective and unreasonably dangerous. Along with a claim of strict liability, she asserted claims of negligent design defect, failure to warn, fraud, misrepresentation, and conspiracy. The court granted the defendants’ motion for partial summary judgment regarding the plaintiff's claims of fraud, negligent misrepresentation, warning, and conspiracy. The case went to trial on only the strict liability and negligence claims. The jury returned a verdict in favor of RJR. Nunnally appeals.

Summary of Opinion Analysis: Issue 1: Special interrogatory Nunnally argues that because the court’s special interrogatory included language from two instructions which the court denied, RJR was permitted to argue that no specific manufacturing defect was present in the cigarettes and that RJR’s products were the same as all other cigarettes. The appropriate procedure for preserving this issue for appeal is making a clear objection for the record or proposing an alternative interrogatory. Nunnally did not preserve this issue for appeal. Her attorney did not object to the language at issue here during the modification, nor did he object after the modifications were complete. Issue 2: Weight of evidence Nunnally argues that the verdict should have been overturned because the jury instructions were too confusing. She argues that there is no requirement that a product either differ from its intended form or have a manufacturing defect. Her claim is based on a strict liability design defect. The language of the risk-utility instruction that was given to the jury, which originated from Nunnally’s proposed instruction and was approved by her at trial, contains the words "defective condition." Furthermore, Section 402A of the Restatement (Second) of Torts employs the wording "defective condition unreasonably dangerous". Therefore, the court properly instructed the jury. Nunnally also argues that she presented solid evidence about the risks of cigarettes and smoking, supported by all the warnings that are required by law to be on advertisements and packaging. Factors the court can consider when balancing a product's utility against the risk of injury it creates include the usefulness and desirability of the product; the safety aspects of the product; the availability of a substitute product which would meet the same need and not be as unsafe; the manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility; the user's ability to avoid danger by the exercise of care in the use of the product; the user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and the feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. RJR presented an array of evidence that included information regarding Nunnally’s enjoyment and love of cigarette smoking, as well as expert evidence regarding the subjective personal benefits reported by smokers. There was evidence that RJR constantly did research to provide the safest, consumer-desirable cigarette possible. Nunnally was not aware that her husband had ever tried to quit smoking. There was also evidence concerning the community awareness of the cigarette smoking’s harmful effects. Since the plaintiff put on evidence only to support the "unreasonably dangerous" aspect of the case and failed to provide evidence of any type of defect, the verdict was not against the weight of the evidence. Issue 3: Negligence instruction Nunnally argues that she was deprived of a jury instruction on negligence although her complaint contained claims for negligent design and for simple negligence. An examination of the risk utility test establishes that the test is essentially a negligence test. Therefore, the court did not err in failing to grant a negligence instruction in addition to the risk-utility instruction. Issue 4: Exclusion of document Nunnally argues that the court erred in granting RJR’s motion in limine to exclude a document entitled "Frank Statement to Cigarette Smokers" that was published on January 4, 1954, in newspapers nationally, including those circulated in the Southaven area. She argues that the Frank Statement should have been allowed because it supported her claim of negligence. Because Joseph Nunnally was not yet two years old when the Frank Statement was published nationally, it is apparent that Mr. Nunnally could not have read, understood, or relied on this statement in any meaningful way. Therefore, the Frank Statement was not relevant to any issue in this case. Issue 5: Impeachment Nunnally argues that because the design expert presented testimony about the company's responsibleness and reasonableness, she should be able to refute this evidence by presenting the "Frank Statement" discussed above. However, she has misconstrued the testimony on which she bases her argument. The testimony of the design expert makes clear that he was testifying about RJR research and development activities and nothing else. Issue 6: Youth marketing practices Nunnally argues that she should have been allowed to present as evidence a 1973 memorandum written by Claude E. Teague, Jr., Ph.D., an RJR scientist, titled, "Some thoughts About New Brands of Cigarettes for the Youth Market." By 1973, Nunnally was twenty-one-years old and no longer a minor. Therefore, RJR’s actions after this article was published could not have influenced Nunnally to begin smoking or affected his smoking habits as a minor. Issue 7: Opinion testimony Nunnally argues that the testimony of an expert should have been excluded because he had never had any contact with her husband nor read any type of deposition he might have ever made and he formed an opinion about whether Nunnally could have stopped smoking whenever he chose to. The test of whether an expert witness is qualified to testify test is whether the witness possesses peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by a layman. The expert was clearly established as a seasoned expert in the fields of psychiatry and forensic psychiatry. Because M.R.E. 703 allows an expert to form an opinion on facts or data that are inadmissible and forensic psychiatry has been recognized as a proper field of expertise, the court did not err in allowing the expert to form an opinion on whether Nunnally could have stopped smoking at any time. Issue 8: Cross-examination Nunnally argues that there were at least four different occasions during cross-examination in which she was not allowed to pursue her line of questioning which would have helped prove that smokers such as her husband did not truly understand how serious the risk of smoking is. Since none of the lines of questioning that are cited in the plaintiff’s brief support this argument, she has failed to show that the court abused its discretion. Issue 9: Challenges for cause Nunnally argues that four different jurors should have been excused for cause. When a party has challenges remaining and fails to use them, he cannot object to the court for failing to excuse a juror for cause. Nunnally reserved one of her peremptory challenges, deciding not to exhaust them. Therefore, she cannot raise this point on appeal.


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