John T. Ross v Philip Morris
Filed November 23, 1954
US District Court for the Western District of Missouri, Western Division (No. 9494)
Verdict for Defendant
Ross suffered from laryngeal cancer.
Philip Morris was defended by David Hardy of Shook, Hardy & Bacon, which, to this day, is a key player on the tobacco industry’s legal team.
- 1952 – February 16: Ross has tracheotomy
- 1954 – November 23: Case filed
- 1962 – July 11: General Verdict for Defendants
– General damages $250,000; Punitive damages $250,000
- 1964 – February – Affirmed, 8th Circuit.
– Reported decisions:
164 F. Supp. 683 (W. D. MO 1958), 382 F. 2d 3 (8th Cir. 1964)
The plaintiff was a confirmed smoker by 1934, smoking up to four packs a day until he had an tracheotomy to treat his throat cancer.
The plaintiff alleged that his injuries were caused by using the defendant’s product, Philip Morris cigarettes, claiming that the defendant sold unwholesome products not fit for human consumption due to some harmful substances and ingredients.
The plaintiff claimed negligence, willful misrepresentation, breach of warranty and violation of state statutes. The complaint was later amended to include claims of breach of implied warranty, and later, negligence, fraud and deceit.
“That all of said statements and representations were made by defendant, knowing the same were false and untrue, and were intentionally made by defendant for the purpose of causing and inducing the members of the general public, including plaintiff, to rely upon the truth thereof and to purchase said cigarettes.”
“That plaintiff, during all of the times herein mentioned, had the right to rely upon the truth of said statements and representations, and in reliance upon the truth of said advertising and statements and representations heretofore set out and believing the same to be true and being unaware of their falsity, purchased and used Philip Morris cigarettes exclusively in the usual and ordinary way intended by defendant.”
The defendant argued the defenses of statute of limitations, assumption of risk and contributory negligence.
The case was filed originally in the Circuit Court of Jackson County, Missouri, but the defendant removed it to federal district court on grounds of diversity.
The case was heard in the United States District Court for the Western District of Missouri, Western Division (No. 9494), before the Honorable Judge Ridge. The judge (164 F Supp 683) partially granted the defendant’s motion for summary judgment on April 24, 1958.
The judge ruled that the statute of limitations did not bar the negligence and fraud and deceit claims, because they were part of an amended complaint, so the date to count from was the date of the original complaint. They came out of the same conduct and the same injury, and therefore related back to the original claims. The judge also found that the plaintiff could not recover from the manufacturer defendant for breach of implied warranty of fitness even though the cigarettes came sealed by the defendant, because the plaintiff is a remote vendee of the goods.
A trial was held in June and July of 1962. The jury returned a verdict for the defendant. The plaintiff appealed.
On February 26, 1964, the United States Court of Appeals Eighth Circuit (328 F.2d 3) affirmed the verdict. The court found that privity was no longer required between the manufacturer and buyer of a product to support an implied warranty of reasonable fitness claim. Strict liability applied against the defendant as a manufacturer of goods for human consumption, but liability would be limited to reasonably known or knowable harmful ingredients in its cigarettes. The trial court correctly charged the jury by requiring that reasonableness factor.