On May 9, 2023, the Massachusetts Supreme Judicial Court issued its unanimous decision in Greene v. Philip Morris USA Inc., No. SJC-13330, 491 Mass. 866 (2023). In that decision, the SJC upheld rulings against Philip Morris USA Inc., the country’s largest cigarette manufacturer, finding the evidence at trial supported the jury’s finding of liability on two civil conspiracy claims. The SJC also rejected the company’s challenge to a 12% post-judgment interest rate, finding the rate constitutional.
Facts
The plaintiff, Patricia Walsh Greene, sued Philip Morris after she developed lung cancer as a result of smoking Marlboro-brand cigarettes for over 20 years. Greene grew up surrounded by Marlboro advertising and promotions, including receiving free samples of cigarettes as a teenager and smoking her first cigarette by age 13. By high school, she smoked a pack of cigarettes a day.
After unsuccessfully trying to quit smoking, Greene switched from Marlboro Red cigarettes to Marlboro Light cigarettes, believing Marlboro Lights were a safer alternative because of the Marlboro Lights advertisements which promised to deliver “less tar and less nicotine.” Greene eventually quit smoking in 1995, and she was diagnosed with lung cancer in 2013. She underwent difficult treatment, including chemotherapy, radiation therapy, and multiple brain surgeries.
In 2015, Greene sued Philip Morris, alleging that the tobacco industry conspired to lie to the public about the health impact of smoking by claiming that smoking was not addictive and did not cause cancer. Greene also alleged that the tobacco industry misled the public about the safety of “lights” or “low tar/low nicotine” cigarettes. She brought claims for negligence, breach of warranty, and civil conspiracy. At trial, Greene presented evidence that the cigarette industry and its members conspired to dispute claims that cigarettes are addictive or cause cancer, despite their own research to the contrary.
In 2019, a Middlesex Superior Court jury returned a verdict in favor of Philip Morris on Greene’s negligence and breach of warranty claims but in favor of Greene on her two civil conspiracy claims. The jury awarded $9 million in compensatory damages, which the trial court trebled after finding that Philip Morris violated G.L. c. 93A, the Massachusetts consumer protection law. Altogether, including the verdict amount, attorney’s fees and costs, and $7 million in pre-judgment interest, the judgment totaled over $37 million. The judgments are accruing more than $4 million per year in post-judgment interest pursuant to the 12% statutory interest rate.
Philip Morris appealed, arguing that the evidence was insufficient to make out a prima facie case of conspiracy. In the alternative, Philip Morris argued that it was entitled to a new trial because the jury’s instructions on “civil conspiracy” included language regarding “substantial contributing factor,” which Philip Morris claimed was in error, in light of a 2021 SJC opinion, Doull v. Foster. Philip Morris also argued that the Massachusetts statutes setting pre- and post-judgment interest rates at 12% were unconstitutional and resulted in a windfall to plaintiffs.
On its own initiative, the SJC transferred the case from the Appeals Court. The SJC then unanimously rejected Philip Morris’s arguments, finding the jury’s verdict and the trial judge’s finding trebling the verdict were supported by the evidence and that the 12% pre- and post-judgment interest rates were constitutional.
Analysis
On appeal, Philip Morris challenged the jury’s verdict of civil conspiracy and the trial judge’s finding of liability under G.L. c. 93A, resulting in trebled damages. In the alternative, Philip Morris argued that it was entitled to a new trial because the jury’s instructions on conspiracy included “substantial contributing factor.”
The SJC rejected Philip Morris’s arguments to the jury verdict, finding that the evidence at trial was sufficient for the jury to find Philip Morris liable. Specifically, the SJC noted that Philip Morris failed to disclose its own research to its customers demonstrating that filtered cigarettes were even more harmful than regular cigarettes and can lead to cancer. The SJC also noted that Philip Morris did not dispute that cigarettes are harmful to human health, instead claiming that there was no evidence linking the company’s advertisements to Greene’s decision to use Marlboro Lights because she believed they were safer than other cigarettes. Accordingly, the SJC found that Greene had demonstrated her detrimental reliance on the company’s misrepresentations regarding filtered cigarettes.
The SJC further rejected Phillip Morris’s arguments regarding the “substantial contributing factor” language in the causation instructions. The SJC concluded that Philip Morris’s only objections to the language were in the context of instructions on Greene’s breach of warranty claim, and that Philip Morris failed to object during the discussion of the “substantially distinct” causation instructions regarding the conspiracy claims and failed to object on the jury instructions regarding the conspiracy claims. Accordingly, Philip Morris waived that argument on appeal.
Finally, the SJC rejected Philip Morris’s challenge to the statutory pre- and post-judgment interest rates under G.L. c. 231 §6B and G.L. c. 235 § 8. Philip Morris argued that the 12% rate, “as compared to when the rate was set in 1982,” was making the plaintiffs more than whole and was contrary to public policy. In considering Philip Morris’s arguments, the SJC considered a 2016 Vermont Supreme Court case, Concord Gen. Mut. Ins. Co. v. Gritman, which considered almost identical arguments to those raised by Philip Morris. In that case, the court found the 12% rate constitutional, as it was “reasonably related to the purpose of the statute” and that it encouraged “‘defendants to settle claims and make prompt payments after judgment, and ensure that a plaintiff is made whole.’” The SJC also pointed to similar rates in Rhode Island and New York. Although conceding the “arguable windfall [the 12%] rate provides in a low-interest economy,” the SJC “[could] not conclude that the twelve percent interest rate is either irrational or punitive[.]” Accordingly, the SJC found the statutory rate constitutional.