Pooshs v. Philip Morris U.S.A.

United States District Court for the Northern District of California · Evidence

EvidenceExpert testimonyProduct liabilityFraudFailure to warnSummary judgmentRule 702Daubert

Facts

Plaintiff alleged that she developed lung cancer from smoking cigarettes made by Philip Morris and R.J. Reynolds and promoted by Hill and Knowlton. She smoked from 1953 until 1991, was diagnosed with chronic obstructive pulmonary disease and periodontal disease before later being diagnosed with lung cancer in January 2003, and filed suit in January 2004. Her complaint asserted negligence, design-defect products liability, multiple fraud-based claims, conspiracy or concert of action, and failure-to-warn theories. To support her design-defect theory, she offered Dr. K. Michael Cummings and Dr. William A. Farone as cigarette-design experts.

Issue

Whether plaintiff's proffered experts were qualified and reliable under Rule 702 to testify about cigarette design, and whether defendants were entitled to summary judgment on plaintiff's design-defect, fraud, concealment, failure-to-warn, claims against Hill and Knowlton, and concert-of-action claims. The court also addressed whether certain post-1969 warning-related theories were preempted and whether findings from a prior federal tobacco RICO case should have preclusive effect.

Rule

Under Rule 702 and Daubert, the proponent of expert testimony must show by a preponderance that the expert is qualified, that the testimony is based on sufficient facts or data and reliable principles and methods, that those methods were reliably applied, and that the testimony fits the issues in the case. In a California design-defect case, regardless of whether the risk-benefit or consumer-expectations test is invoked, the plaintiff must prove through admissible expert testimony that an actual design defect, not merely use of the product generally, was a substantial factor in causing the injury. Fraud and concealment claims require actual reliance and causation, and omission-based reliance may be shown by proof that the plaintiff would have acted differently had the information been disclosed. Post-1969 cigarette failure-to-warn claims based on advertising or promotion are preempted, but claims based on other channels of communication are not.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a products suit in Sacramento, Dana Mercer claims that a line of vaping cartridges was defectively designed. She offers Dr. Elias Romero, a public-health epidemiologist who has studied nicotine dependence for 25 years and published extensively on youth tobacco use, but he admits he has never designed a cartridge, coil, or filter system.

If the manufacturer moves to exclude Dr. Romero's opinion that the cartridges were defectively designed because they delivered nicotine efficiently and were easy to inhale, how should the court most likely rule?

Explanation. Under Rule 702 as applied here, the proponent must show the witness is qualified on the specific subject offered. The majority drew a subject-by-subject distinction: expertise in epidemiology, addiction, or smoking behavior does not automatically make a witness qualified to testify about cigarette design. Because Dr. Romero lacks training or experience in designing the product, his design-defect opinion would likely be excluded. (Derived from Pooshs v. Philip Morris U.S.A. (n.d.).)