Joanne for George P. Kotler
v American Tobacco Co. et al

United States District Court, District of Massachusetts
The Honorable Walter Jay Skinner presiding

Filed 1986

Verdict for the Defendant

Joanne Kotler, individually and as Administratrix of the estate of George P. Kotler, brought a wrongful death suit  against American Tobacco Co., Philip Morris, and Liggett & Myers. However, the actions against Philip Morris and L&M were dismissed prior to trial.

Plaintiff attorneys: Nissen & Lumsden by Eric Nissen, Diana Lumsden, Garry V. Inge
Defendant attorneys: Gaston & Snow, Chadbourne & Parke


  • 1986 – March 6: Case filed

“The plaintiff alleged the defendants’ cigarettes caused her husband’s death. Mr. Kotler began smoking at age 11 in 1942. He smoked Pall Malls through 1965, then switched first to L&Ms and then Benson & Hedges. He was diagnosed with lung cancer in October, 1984 and died in 1986. The plaintiff claimed negligence, breach of express and implied warranty, intentional and negligent misrepresentation, deceit, and loss of consortium. The plaintiff sought compensatory and punitive damages.”

  • 1988 – May 25: Ruling from Judge Skinner

“On May 25, 1988, the judge granted in part and denied in part a motion to dismiss from the defendants. The decision was entirely based on the effect of Palmer on the case. The judge held that the Federal Cigarette Labeling and Advertising Act preempted claims regarding the adequacy of warnings and advertising of cigarettes, including failure to warn, negligent misrepresentation or deceit claims which arose after 1966. It did not apply retoactively to those claims arising before 1966. The plaintiff did establish a cause of action under state defective design law separate from any question of adequate warnings. The breach of implied warranty claim was based on a Massachusetts law imposing a warranty of merchantability, and was not barred.”

  • 1989 – January 21: Summary judgment motions for PM and L&M

“The judge granted summary judgment motions for Philip Morris and Liggett. The parties agreed that Mr. Kotler only smoked cigarettes made by these defendants after 1965. The only claim remaining after the Federal Cigarette Labeling and Advertising Act’s preemption was defective design. The judge held that defendants could not be held liable for selling tobacco simply because of its lethal effects. The plaintiff failed to establish the existence of any additives in the defendants’ cigarettes. The judge also granted a evidentiary protective order.”

  • 1990 – January 12: Summary judgment motion from American Tobacco

“The judge again ruled on a summary judgment motion from defendant American Tobacco Co. He held that the defendant was not liable on a manufacturing defect theory without evidence of a causal link between the pesticide used to dust the tobacco and the plaintiff’s husband’s death. The plaintiff was not entitled to damages for breach of warranty under the theory that all cigarettes are unreasonably dangerous. However, there existed genuine issues of material fact regarding the pre-1966 failure to warn claim, as expressed through both breach of warranty and negligence, precluding summary judgment.”

  • 1990 – February 1: Verdict for the Defendant
  • 1990 – February 13: Trial

“The judge directed a verdict for the defendant as to the pre-1966 failure to warn claim, and the jury returned a verdict for the defendant in regard to the negligence claim. The plaintiff appealed.”

  • 1990 – December 19: First Circuit Court affirms jury verdict

“The United States Court of Appeals, First Circuit affirmed the jury verdict. The court held that the Labeling Act preempted post-1965 claims for intentional misrepresentation because it was based on the propriety of cigarette advertising. The claim that cigarettes generally were defective was insufficient to impose liability under a design defect theory. The plaintiff waived any objection to the judge’s preemptory challenges method in selecting jurors. She suggested a remedy and it was granted in full. The directed verdict for breach of warranty by way of failure to warn was in error, but harmless when the negligence instruction was essentially a warranty instruction and the jury verdict came back for the defendant.”

  • 1992 – June 29: US Supreme Court vacates judgment and remands case

“The Supreme Court of the United States vacated the judgment and remanded the case. The Court ordered the court of appeals to reconsider the issue of preemption in light of Cipollone, decided June 24, 1992, which limited Palmer’s scope.”

  • 1992 – December 4: First Circuit reissues prior affirmance

“The United States Court of Appeals, First Circuit reissued its prior affirmance of the district court’s judgment. The court held that the notice of appeal did not sufficiently reference the preemption claim to allow the plaintiff to appeal. It did not mention the May, 1988 order where the issue was decided or display an intent to preserve that ruling for appeal. The court refused to go any further to revisit the breach of warranty issue without any showing of some substantial error or extraordinary circumstance.”