Sickly Smoker Loses Most of Philip Morris Lawsuit

     SAN FRANCISCO (CN) – Philip Morris USA has won a small battle in the latest of a long string of personal-injury lawsuits linking cigarettes to serious health issues and death.
     Nikki Pooshs said she began smoking in 1953, while in junior high school, and continued up until 1991, two years after she was diagnosed with chronic obstructive pulmonary disease (COPD), and one year after being diagnosed with periodontal disease. She was again diagnosed with COPD in 1999 and finally with lung cancer in 2003.
     In a 2004 complaint against Philip Morris, Pooshs blamed the company for her habit and for not being forthright about the risks associated with smoking.
     Her case is similar to that of Lucinda Naugle, a 64-year-old Florida woman who suffers from emphysema. She brought suit against Philip Morris in 2006, claiming the company knew that smoking cigarettes was addictive and harmful to a smoker’s health, but hid that information from the public. She won a landmark $300 million judgment, in which a found Naugle was only 10 percent at fault and that Philip Morris bore the majority of the blame because of its advertising campaigns.
     Thousands have file suit against tobacco companies since 1998 when seven of the largest tobacco companies agreed to a $206 billion master settlement involving 46 states.
     In her complaint, Pooshs cites 10 claims including negligence, products liability, fraud and deceit, concert of action and failure to warn. Like Naugle, she claims Philip Morris hid safety risks, but also alleges the company’s cigarettes are “defective” because they contain nicotine, an argument Philip Morris disputed and the court dismissed.
     On Monday, U.S. District Judge Phyllis Hamilton barred epidemiologist Dr. K. Michael Cummings and former Philip Morris employee Dr. William Farone from testifying in support of Pooshs’ nicotine claim.
     “Dr. Cummings does appear to be qualified, based on his review of the literature, to testify regarding the cigarette industry’s knowledge regarding the risks of smoking; and regarding the fact that a cigarette that delivers less nicotine and/or other toxic substances will be less risky to human health; and also regarding how a particular cigarette design might influence smoking behavior,” Hamilton wrote. “Nevertheless, since he is not qualified as an expert in how to design cigarettes, his testimony would not assist the trier of fact in understanding or determining whether the design of defendants’ cigarettes was in fact defective. Moreover, because Dr. Cummings is not qualified to testify regarding the cause of plaintiff’s cancer, he is also not qualified to provide opinions regarding whether plaintiff could have avoided getting cancer if some alternative design had been available and she had switched to that alternative design.”
     Hamilton found Farone similarly unqualified to address “cigarette design, or about nicotine pharmacology, addiction or cancer causation.”
     Despite Farone’s former employment with Philip Morris, he is not “qualified to offer expert opinions about what Philip Morris ‘understood’ about cigarette design then or at any time,” the decision states.
     Philip Morris sought summary judgment on nine of the 10 causes of action, stating that Pooshs cannot link her injuries to a defect in cigarette design. The company also argued the fraud claims fail because there is no evidence that Pooshs relied on any representations made by Philip Morris, and that the failure-to-warn claims fail because there is no proof that a warning would have prevented her injuries.
     Hamilton granted Philip Morris summary judgment on Pooshs’ claims of products liability, misrepresentation and civil conspiracy. But the judge denied summary judgment on the claims of concealment, negligent failure to warn and off-label failure to warn “because triable issues preclude summary judgment.”

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