Jeanette Wilks for Anderson Smith
v American Tobacco Co. and New Deal Tobacco and Candy Inc.
Washington County Circuit Court
Honorable Eugene M. Bogen presiding
Verdict for the Defendant
Plaintiff attorneys (Appeal): Richard F. Scruggs, Don Barrett, Frederick B. Clark, Cynthia Langston Miller and Charles Victor McTeer.
Defendant attorneys (Appeal): James E. Upshaw, Thomas E. Bezanson, Lonnie D. Bailey, J. Murray Akers and Mary T. Yelenick.
- 1988 – May 5: Complaint filed.
- 1993 – June 17: Defendant verdict
- 1993 – June 23: Judgment entered for defendant.
- 1993 – November 17: Plaintiff’s Notice of Appeal
- 1996 – September 12: Affirmed, Mississippi Supreme Court
- 1996 – October 3: Mandate issued.
“¶10. This trial boiled down to a dispute over the decedent’s cause of death. Plaintiffs claimed that Smith died from smoking related illnesses. The American Tobacco Company maintained that Smith died as the result of a pulmonary embolism caused by a lifetime of complications suffered during treatment for gonorrhea.
On June 17, 1993, the twelve member jury returned a verdict finding that the death of Anderson Smith was not proximately caused or contributed to by his lung cancer or chronic obstructive pulmonary disease. Based on this verdict, the trial court entered judgment for American Tobacco Company on June 23, 1993.“
Even though they won the verdict, American Tobacco had appealed on an issue related to their legal defense, assumption of the risk. The Supreme Court found against American since the company never admitted there was any risk associated with consuming Pall Mall cigarettes.
¶18. “As to American Tobacco Company’s cross-appeal, we find that the trial court properly struck the defense of assumption of the risk based on our recent pronouncements in Horton v. American Tobacco Co., 667 So. 2d 1289 (Miss. 1995). Even if it was a viable defense, it may not be employed unless the defendant admits the existence of a risk. American Tobacco firmly denied that smoking was hazardous to one’s health. It follows that there was no evidentiary support for American Tobacco Company’s use of this defense.
All other arguments of American Tobacco Company’s cross-appeal are rendered moot by the jury verdict and judgment in the court below.”
Mississippi Supreme Court September 12, 1996