Yvonne Rogers for Richard Rogers
v R.J. Reynolds, Philip Morris, American Tobacco Co., and Ligget & Myers

Marion County Superior Court, State of Indiana, Civil Division
The Honorable John M. Ryan presiding

Filed 1987

Yvonne Rogers filed a personal injury suit both individually and as executrix of the estate of her husband, Richard Rogers.

Timeline

  • 1987 – March 7: Yvonne Rogers sues R.J. Reynolds, Philip Morris, American Tobacco Co. And Liggett & Myers.
  • 1987 – October 2: Richard Rogers dies of lung cancer. The complaint is amended to a wrongful death claim.

“The plaintiff alleged that the defective design of Richard Rogers’ cigarettes caused him to become addicted (not habituated), contract lung cancer, and eventually die. The plaintiff claimed strict liability, negligence, fraud, and concealment. The plaintiff sought loss of consortium damages, and damages for intentional infliction of emotional injury as well as punitive damages.”

“The defense argued that any danger of cigarettes was open and obvious, and that the addictive nature of cigarettes was common knowledge.”

  • 1990 – July 31: Court of Appeals of Indiana, Second Division issues divided ruling

“The Court of Appeals of Indiana, Second Division affirmed the ruling in part, reversed in part and remanded the case. The court held that the Federal Cigarette Labeling and Advertising Act preempted any strict liability failure to warn or fraud claims from the date it came into effect, but not before. It also found that the plaintiff’s cause of action did not accrue until Mr. Rogers discovered his disease and its cause. Strict liability and negligence claims were not barred by open and obvious defects because the defense is not open to strict products liability claims and the physical qualities of cigarettes that make them harmful cannot be directly observed or deduced from observation. The plaintiff could no assert damages for intentional infliction of emotional distress on Yvonne, but could assert punitive damages as surviving widow herself in connection with her loss of consortium claim.”

  • 1995 – January 31: A trial before Hon. Kenneth H. Johnson
  • 1995 – February 2: Opening statements
  • 1995 – February 19: Closing
  • 1995 – February 22: Mistrial declared
  • 1995 – August 5: Retrial. The jury found for the defendants regarding the strict liability and wrongful death claims. The plaintiff appealed.
  • 2000 – June 30: Court of Appeals of Indiana (731 N.E.2d 36) affirms the verdict in part, reverses in part and remands the case.

“The court held that the trial court had made a reversible error by communicating with the jury during deliberations telling them they could hold a press conference after the verdict was read without giving notice to the parties because such an act could have impacted the verdict that the jury reached. That type of communication should have been done in the presence of both parties, in open court. The court found that the newly discovered evidence of Bennett S. Lebow’s (Liggett & Myers) public statements of his belief that smoking is addictive and a cause of lung cancer was inadmissible after the close of the trial because they were his individual statements, and he was not shown to be unavailable at trial.”

“The court found that the jury was properly instructed as to incurred risk, because the plaintiff’s proposed instruction misconstrued “wholly voluntary”, and leave to amend the complaint was properly denied when the motion was made seven years after the original complaint and after the conclusion of the first trial.”

  • 2001 – April 18: Split ruling from State Supreme Court

“The Supreme Court of Indiana vacated the Court of Appeals’ judgment in part and affirmed in part. It ruled that the judge’s statement to the jury during deliberations was harmless because it did not go to the substantive law or facts of the case and did not result in a sudden shift in jury sentiment.”

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