Mary Green, a Widow, for Edwin Green
v American Tobacco Co.

Filed 1957

Verdict for the Defendant

MaryGreenGreen died of lung cancer.

This is the first jury verdict where causation was attributed to cigarette smoking.

Plaintiff attorneys: Hector, Faircloth & Rutledge by Lawrence V. Hastings
Defendant attorney: Smathers, Thompson & Dyer by David W Dyer

Timeline

  • 1957 – December 20: Complaint filed; injury alleged: lung cancer
    – seeking General damages $1,500,000
  • 1960 – August 2: General verdict for the Defendant
  • 1962 – May 2: Verdict affirmed by the 5th Circuit Court
  • 1963 – June 5: Advisory opinion from the Florida Supreme Court
  • 1963 – December 11: Defendant verdict reversed by 5th Circuit. New trial ordered
  • 1964 – November 17: New trial scheduled
  • 1964 – Certiorari denied
  • 1964 – November: Retrial and verdict for Defendant
  • 1968 – January 24: Verdict reversed by 5th Circuite
  • 1968 – March 25: Rehearing en banc granted by the 5th Circuit
  • 1969 – Full court affirms the Defendant verdict in the 5th Circuit
  • 1970 – February 14: US Supreme Court denies certiorari (397 U.S. 911)

Narrative

In 1957, Edwin Green, a general contractor from Coconut Grove, Florida , sued American Tobacco, alleging that smoking three packs a day of Lucky Strikes was killing him. He died two months later of lung cancer. The case was carried forth by his widow.

In August 1960 the case came to trial.  The questions posed by the court were (1) Was cancer primary in the lung? (2) Did this cause his death? (3) Did the smoking of Lucky Strikes cause his cancer death? In all three instances, the 12-man jury voted “yes.”

This was the first jury to establish that fact in the legal sense!

The fourth interrogatory asked, “Did the cigarette company have knowledge of the harmfulness?” The jury said, “no.” Therefore, no money was awarded. The jury returned a verdict for the defendant and the judge awarded costs against the plaintiffs for $1,969.74 including expert witness fees of $900. The plaintiffs appealed the judgment on the breach of implied warranty claim only.

This set in motion a decade of legal wrangling.

A panel of the 5th Circuit Court affirmed the verdict in May 1962, requesting clarification from the Florida Supreme Court, which issued an advisory opinion in June 1963.

In December 1963, the Court of Appeals panel (325 F2d 673) reversed and remanded the case in light of answers to a question certified to the Supreme Court of Florida. The state court had ruled that the defendant’s actual knowledge of the defective condition was irrelevant to liability under an implied warranty theory. Thus, the instruction that implied warranty of fitness did not cover harmful effect that no human skill or foresight could know was a prejudicial error. There was sufficient evidence to put to the jury whether the cigarettes were reasonably fit for human consumption.

At the second trial in November 1964, some 30 scientists testified on smoking’s dangers, both pro and con. In addition, in the retrial the judge allowed the entire case to be religitated, not just the damages phase. Before the second jury deliberated, Judge Choate, who heard the original case in 1960, told them they must consider two questions. First, are cigarettes reasonably safe and wholesome? And, If not, what damages should be awarded? It took just 90 minutes for the jury to issue a verdict in favor of American Tobacco Co. Damages were never considered.

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