Civil No. 00-2334 (JAF)
October 9, 2002
OPINION AND ORDER
Plaintiffs, Eli Rogelio Figueroa Cruz and Luis Rogelio Figueroa Cruz, brought the present diversity action against Defendants, R.J. Reynolds Tobacco Company ("Reynolds"), R.J.R. Nabisco, Inc. ("R.J.R. Nabisco"), and Nabisco Group Holdings ("Nabisco Holdings") alleging state law tort claims pursuant to 31 L.P.R.A. § 5141 (1991 Supp. I 1998) for the death of their father. Docket Document No. 25.
Future references to "Defendant" refer to Defendant R.J. Reynolds.
Following a trial, on September 25, 2002, a jury returned a verdict in favor of Plaintiffs. Defendants moved for judgment as a matter of law and Plaintiffs opposed the motion. We conclude that the jury's verdict was not supported by the evidence and, therefore, GRANT Defendants' motion for judgment as a matter of law. See FED. R Civ. P. 50.
I. Procedural History
Plaintiffs, Irene Cruz Vargas, Eli Rogelio Figueroa Cruz, and Luis Rogelia Figueroa Cruz filed the initial complaint on October 17, 2000, Docket Document No. 1, and submitted an amended complaint on August 20, 2001.Docket Document No. 25. Plaintiffs are the wife and children of Luis Rogello Figueroa Serrano ("the decedent"), who unexpectedly died on October 18, 1999. Plaintiffs' complaint alleged negligence and strict liability claims pursuant to 31 L.P.R.A. § 5141.Id. Specifically, Plaintiffs averred that Defendant Reynolds' cigarettes were defectively designed because they caused the decedent's addiction to nicotine, hypertension, and death. Id. Plaintiffs also asserted that the health warnings on Defendant Reynolds' cigarette packages were inadequate to warn the decedent of the risks of smoking, and that Defendant Reynolds had a duty to print Spanish health warnings on cigarette packages sold in Puerto Rico. Id.
On June 18, 2002, we granted, in part, Defendant Reynolds' motion for summary judgment on the grounds that: (1) Plaintiff Irene Civil No. 00-2334 (JAf)
Cruz Vargas' claims were time-barred; (2) Plaintiffs' post-1969 failure-to-warn claims were preempted by the Federal Cigarette Labeling and Advertising Act ("the Labeling Act"), 15 U.S.C. § 1331-1341 (1994 Supp. I 2001); and (3) Defendant Reynolds' cigarettes were not defectively designed under Puerto Rico law.Docket Document No. 87.
Defendants filed a second, belated motion for summary judgment, which we declined to consider. Docket Document No. 139.
Plaintiffs Eli Rogelio Figueroa Cruz and Luis Rogelio Figueroa Cruz proceeded to trial, asserting state law tort claims of negligence and strict liability against Defendant Reynolds for its alleged failure to warn their deceased father of the health risks and addictive nature of smoking prior to July 1, 1969.
Following the presentation of Plaintiffs' evidence at trial Defendants moved for judgment as a matter of law pursuant to Fed.R.Civ.P. 50. We deferred ruling on the motion until the jury reached its verdict.
The jury found in favor of Plaintiffs and awarded each Plaintiff damages in the amount of $500,000.
Defendant Reynolds moves for judgment as a matter of law on the following grounds: (1) Plaintiffs failed to prove that the decedent began smoking Winston cigarettes prior to July 1, 1969; (2) Plaintiffs did not prove that Defendant Reynolds had a duty to warn the decedent of the risks associated with smoking; (3) assuming a duty to warn existed, Plaintiffs have not proffered sufficient evidence to show that Defendant breached its duty; (4) Plaintiffs have not established that Defendant Reynold's failure to provide Spanish language warnings prior to July 1, 1969 caused the decedent's death 30 years later; and (5) Plaintiffs have failed to show that if Defendant Reynolds had provided additional warnings prior to July 1, 1969, the decedent would have heeded those warnings and avoided his injuries.
On September 30, 2002, Plaintiffs opposed the motion, arguing that they had sufficiently established that: (1) the decedent's smoking was a substantial factor in his death; and (2) the dangers of smoking were not known to the ordinary consumer during the relevant time period. Plaintiffs further assert that they did not need to prove that the decedent would have heeded additional warnings. Plaintiffs also dispute the jury's finding that Plaintiff Luis Rogelto Figueroa Cruz's claims were time-barred, and they filed a Federal Rule of Civil Procedure 49(a) motion to this effect on October 7, 2002.
Defendant tendered a reply to Plaintiffs' opposition on October 8, 2002.
II. Factual Synopsis
This court has carefully reviewed the evidence adduced at trial, and we present the following factual summary in the light most favorable to Plaintiffs, and with all reasonable inferences drawn in his favor. Hochen v. Bobst Group, Inc., 290 F.3d 446, 453 (1st Cir. 2002) (explaining standard for judgment as a matter of law). In viewing the evidence in a Rule 50 motion, we "disregard all evidence favorable to the moving party that the jury is not required to believe. . . . [We] give credence to the evidence favoring the nonmovant as well as that `evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses.'" Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000) (internal citations omitted) . "We assume the veracity . . . of any admissions made and stipulations entered into by the party opposing the Rule 50 motion." See Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62, 69 (1st Cir. 2002).
The decedent, Luis Rogelio Figueroa Serrano, was born on August 28, 1951, and lived in Utuado, Puerto Rico. He worked as a mechanic, tow truck driver, and a public bus driver. His family perceived him to be a strong, healthy person during most of his life. (Tr. 7, 46, 64, 66). The decedent's primary language was Spanish. He could not read, write, or speak English (Tr. 43). The decedent did not typically read newspapers or magazines and did not watch much television. (Tr. 7, 43, 45)
The decedent began smoking Winston cigarettes as early as 1961. (Tr. 10). In the early 1970's, the decedent smoked at least a pack of Winston cigarettes a day. (Tr. 31). By the time his second child was born in 1979, the decedent smoked a cigarette once every five or ten minutes. (Tr. 78). In the early 1990's, the decedent would get up once or twice a night to have a cigarette. (Tr. 79). By 1994, he smoked two to three packs of Winston cigarettes a day. (Tr. 114). Although the decedent apparently tried to quit many times, he was unable to do so. (Tr. 43, 63, 77)
The decedent was five feet nine inches tall and weighed between 240 and 250 pounds. See Admitted Facts, Pretrial Order, paragraph I. The decedent had a family history of hypertension and heart disease. Id. at paragraph O.
In 1994, the decedent was hospitalized for fifteen days for high blood pressure. (Tr. 80). Following this initial incident, the decedent was hospitalized between three and six times for high blood pressure, including once a few days before he died. (Tr. 73, 84). The decedent's wife testified that the decedent followed his doctor's advice regarding his hypertension medication, always went to his medical appointments, and always took his medication. (Tr. 82).
The evidence confirms quite clearly that the decedent suffered from severe, uncontrolled hypertension and that his doctors warned him that not taking his medication would be lethal. See Admitted Facts, Pretrial Order, paragraphs G, P, and Q.
The decedent passed away suddenly on October 18, 1999. Id. at paragraph J. On the date of his death, the decedent was forty-eight years old. See Plaintiffs' Exh. 1. At the request of Plaintiff Luis Rogelio Figueroa Cruz, no autopsy was performed. See Admitted Facts, Pretrial Order, paragraph L. The official cause of death was listed as essential (primary) hypertension. See Plaintiffs' Exh. I.
Plaintiffs' expert witness, Dr. James Nelson, testified that smoking, diet, lack of exercise and noncompliance with his doctor's orders contributed to the decedent's hypertension and death. (Tr. 160). Dr. Nelson opined that the amount the decedent smoked was a factor in making his blood pressure high and difficult to control. (Tr. 163). He further testified that although high blood pressure runs in the decedent's family, it is likely that the decedent would have been able to control his blood pressure if he had not smoked so much during his lifetime. (Tr. 164). Dr. Nelson concluded that "[s]moke was a substantial factor in [the decedent's] blood pressure and in the cause of his death." (Tr. 163).
III. Rule 50 Standard
Rule 50(a)(1) provides that:
If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
In deciding a Rule 50 motion, courts review all the evidence in the record. Reeves, 530 U.S. at 150.
[W]e examine the evidence and all fair inferences in the light most favorable to the non-movant and determine whether the non-movant has offered "more than a mere scintilla of evidence,' warranting the submission of the issue to the jury. We "may not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence.'Hochen, 290 F.3d at 453 (internal citations omitted). "`We resolve all credibility issues in favor of the verdict. . . . The evidence may be entirely circumstantial, and need not exclude every hypothesis of innocence; that is, the factfinder may decide among reasonable interpretations of the evidence."' White v. N.H. Dep't of Corrs., 221 F.3d 254, 259 (1st Cir. 2000) (internal citation omitted) "Overriding a jury verdict is warranted only if the evidence `is so one-sided that the movant is plainly entitled to judgment, for reasonable minds could not differ as to the outcome.'" Colasanto v. Life Institución. Co. of N. Am., 100 F.3d 203, 208 (1st Cir. 1996) (internal citation omitted).
A. Plaintiff Luis Rogelio Figueroa Cruz
At the charge conference held in chambers on September 25, 2002, the parties agreed to have the following question in the verdict form: "(5) Luis Rogelio Figueroa Serrano died on October 18, 1999, did Plaintiffs know or should have known before that date that smoking could lead to their father's death?" The parties agreed that question five would be controlling on the issue of timeliness. If the jury answered "yes" to question five of the verdict form, Plaintiff Luis Rogelio Figueroa Cruz's action would be time-barred. Since the jury answered "yes" to question five, Plaintiff Luis Rogelio Figueroa Cruz's claims were necessarily time-barred.
Puerto Rico does not have a wrongful death statute. Rather, claims for emotional damage caused by a family member's physical injury or death are governed by 31 L.P.R.A. § 5141. In Puerto Rico tort cases "the period of a cause of action begins to run as of the moment the aggrieved party learned or had knowledge of the damage and could institute the action." Sanchez v. Elec. Power Auth., 142 D.P.R. 980, 1997 P.R. Eng. 878520 (1997).
Under Plaintiffs' theory of the case, thirty years of smoking caused the decedent's addiction and contributed to his hypertension and death. The jury found that Luis Rogelio Figueroa Cruz was aware of the decedent's smoking-related injuries before the decedent died, and that he was in a position to file a claim earlier than the date in which his father died.
Plaintiff Eli Rogelio Figueroa Cruz's claims are not time-barred because he was a minor when he filed the complaint. See 32 L.P.R.A. § 254 (1990). Pursuant to section 254, the time that Plaintiff Eli Rogelio Figueroa Cruz was a minor is not added to the statute of limitations period.
For that reason, counsel agreed on the record at the time the verdict was announced that Luis Rogelio Figueroa Cruz's case was time-barred and no recovery could be sustained based on the jury's affirmative answer to question five.
Counsel for Plaintiffs had second thoughts on this matter and Plaintiff Luis Rogelio Figueroa Cruz filed a motion pursuant to Federal Rule of Civil Procedure 49(a), in which he asserts that the statute of limitations did not begin to run until the decedent died on October 18, 1999, and that since he filed the present action within one year of the decedent's death, his action is timely.
We need not decide at this time Plaintiff Luis Rogelio Figueroa Cruz's post-trial motion based on Federal Rule of Civil Procedure 49(a). Even if Luis Rogelio Figueroa Cruz's claims are not time-barred, Defendant Reynolds would be entitled to judgment as a matter of law for the same reasons we explicate infra with regards to Eli Rogelio Figueroa Cruz.
B. Plaintiff Eli Rogelio Ficrueroa Cruz
1. Legal Framework
Plaintiff Eli Rogelio Figueroa Cruz asserts claims of negligence and strict liability under 31 L.P.R.A. § 5141. Plaintiff contends that Defendant Reynolds failed to warn his father of the risks of smoking prior to July 1, 1969 and that Defendant's failure to warn was a substantial contributing factor in his father's death on October 18, 1999.
Future references to "Plaintiff" allude to Plaintiff Eli Rogelio Figueroa Cruz.
Under Puerto Rico law, a product may be found defective "if the manufacturer or seller fails to provide the user with adequate warnings or instructions on the dangers or risks inherent to its handling or use."Rivera v. Superior Packaging, Inc., 132 D.P.R. 115, 1992 P.R. Eng. 754830 (1992). In a strict liability failure-to-warn case, a plaintiff must prove by a preponderance of the evidence that:
(1) the manufacturer knew, or should have known of the risk inherent in the product; (2) there were no warnings or instructions, or those provided were inadequate; (3) the absence of warnings made the product inherently dangerous; (4) the absence of adequate warnings or instructions was the proximate cause of plaintiff's injury.Aponte Rivera v. Sears Roebuck de P.R., Inc., 145 D.P.R. 245, 1998 P.R. Eng. 324486 (1998) (internal citations omitted); see also LEWIS BASS, PRODUCT LIABILITY § 4:9 (2d ed. 2001) (explaining that a manufacturer is under an affirmative duty to give warnings for the safe use of a product where the manufacturer can foresee that hazardous characteristics of the product are not likely to be known by those using the product, and the product will be inherently dangerous without that knowledge).
In Puerto Rico, negligence is "the failure to exercise due diligence to avoid foreseeable risks." Malavé-Félix v. Volvo Car Corp., 946 F.2d 967, 971 (1st Cir. 1991) (citing Jiménez v. Pelegrina Espinet, 112 D.P.R. 700 (1982)). To establish a claim of negligence, Plaintiffs must prove that: "(1) defendant owed a duty to prevent the harm by conforming to a reasonable standard of conduct; (2) defendant breached that duty through a negligent act or omission; and (3) the negligent act or omission caused the plaintiff's harm." Tokio Marine Fire Ins. Co., Ltd. v. Grove Manuf. Co., 958 F.2d 1169, 1171 (1St Cir. 1992)
2. Defendant Reynolds' Duty
We examine first whether Plaintiff has met his burden of establishing that Defendant Reynolds had a duty to warn of the health risks and addictive nature of smoking prior to July 1, 1969. Defendant Reynolds argues that under Puerto Rico law, the duty to warn extends only to those hazards that are not commonly known to the relevant public. Defendant maintains that Plaintiff has failed to adduce any evidence demonstrating that the ordinary consumer did not know of the dangers of smoking cigarettes in the 1950s and 1960s, and that this court must find as a matter of law that Defendant had no duty to warn of the risks of smoking during that time.
Plaintiff contends that by enacting the Labeling Act, Congress implicitly recognized that the public did not know of the risks of smoking and needed to be warned. Plaintiff claims that he proffered the Labeling Act as evidence of Congress' intent.
In Puerto Rico, "[a] manufacturer need not warn of a hazard if the average consumer ordinarily has knowledge of the dangers of the product." Aponte Rivera, 154 D.P.R. 245 (internal citation omitted); see also Guevara v. Dorsey Labs., 845 F.2d 364, 367 (1st cir. 1988) ("The duty to warn in general is limited to hazards not commonly known to the relevant public."). This principle applies in strict liability and negligence cases. See AM. LAW OF PRODUCTS LIABILITY § 32.68 (Timothy E. Travers ed., 3d ed. 1987); Restatement (Second) of Torts §§ 388, 402A (1965 Supp. 2002)
The jury was charged on the basis of these stipulated statements of law pursuant to 31 L.P.R.A. § 5141 and the civil code of Puerto Rico. There was no objection to the substantive matters of the charge. The jury instructions are attached as Appendix A.
"Under this standard, warnings are to be construed with the `average user' or `reasonably prudent person' in mind, not the knowledge available to the particular plaintiff." AM. LAW OF PRODUCTS LIABILITY § 32.68;see also Guevara, 845 F.2d at 367.
Therefore, as part of his burden in both his strict liability and negligence claims, Plaintiff had to show that the ordinary consumer did not have knowledge of the risks of smoking before July 1, 1969.
3. Sufficiency of the Evidence
The jury found that Defendant Reynolds had a duty to warn of the risks of smoking prior to July 1, 1969. We examine whether the evidence supported such a finding. Specifically, we evaluate whether Plaintiff proffered sufficient evidence to support the jury's finding that the ordinary consumer was not aware of the risks of smoking prior to 1969.
Plaintiff did not proffer any evidence as to consumers' knowledge about the risks of smoking in the 1960s. The only evidence in the record as to public awareness about smoking risks in the 1950's and 1960's is the testimony of Defendant Reynolds' expert historian, Dr. Martinez. Dr. Martinez testified that:
If anything, the evidence that Plaintiff presented may actually support an inference that the public was aware of the risks of smoking. Plaintiff's grandmother testified that she has known for many years that smoking cigarettes is bad for a person's health. (Tr. 19). Plaintiff's aunt attested that she learned from warnings that smoking is unhealthy. (Tr. 49). However, neither of these witnesses specifically testified as to their knowledge in the 1960s.
[T]he average consumer in Puerto Rico during the 1950's, during the 1960's, was very well made aware of the hazards associated with smoking, particular diseases such as cancer and cardiovascular diseases. Individuals were also informed as a society that information was made available that smoking could substantially reduce someone's lifetime and also that smoking was or could be difficult to quit.
(Tr. 361). Dr. Martinez stated that the monolingual Spanish-speaking population in Puerto Rico was also well aware of the risks of smoking in the 1950's and 1960's. Id. In reaching his conclusion, Dr. Martinez considered evidence such as newspapers, historical publications, polls, surveys, school curriculum, textbooks, films, and reports by organizations such as the American Cancer Society and the Puerto Rico Lung Association. (Tr. 322).
Although Dr. Martinez is a defense witness, we will consider his testimony in passing on the present Rule 50 motion as if he is a disinterested witness, and his testimony has not been contradicted or impeached. Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17, 23 (1St Cir. 1998)
"Generally, a jury may not reject testimony that is uncontradicted and unimpeached (directly, circumstantially, or inferentially) unless credibility is at issue." Quintana-Ruiz, 303 F.3d at 75. Although credibility determinations are typically reserved for the jury, "`testimony concerning a simple fact, capable of contradiction, not incredible, and standing uncontradicted, unimpeached, or in no way discredited by cross-examination, must be permitted to stand.'"Quintana-Ruiz, 303 F.3d at 75 (quoting Chicago, Rock Island Pac. Ry. Co v. Howell, 401 F.2d 752, 754 (10th Cir. 20 1968)
Dr. Martinez was retained by Defendant Reynolds as an expert witness and was paid approximately $40,000 for his research and testimony. However, he had no financial or personal interest in the outcome of the case. Martinez's status as an expert retained by
Defendant Reynolds is insufficient to make him an interested witness.See Quintana-Ruiz, 303 F.3d at 76; see also Chesapeake O. Ry. v. Martin, 283 U.S. 209, 216 (1931) (explaining that a witness is not necessarily incredible because he works for the defendant). Here, there is no claim of fraud or bias, and we consider Martinez to be a disinterested witness.
Plaintiff did not proffer any affirmative evidence to contradict or impeach Dr. Martinez' testimony. Plaintiff had the opportunity at trial to adduce evidence indicating that the dangers of smoking were not common knowledge in the 1960s, but he did not to do so. During cross-examination, Dr. Martinez did not alter or recant his testimony that the dangers of smoking were common knowledge in Puerto Rico in the 1950's and 1960's.
Plaintiff claims that he proffered the Labeling Act as evidence that the public was not aware of the risks of smoking in the 1960s. However, the Labeling Act was not evidence in this case. Furthermore, the mere fact that Congress passed the Labeling Act does not impute a lack of knowledge about the risks of smoking to the average consumer.
Furthermore, Dr. Martinez testified about matters that are not necessarily within the province of the lay juror. He testified about the common knowledge of the average consumer in Puerto Rico in the 1950s and 1960s. He was speaking of a historical period, and his testimony covered matters that were confirmed by historical hard evidence. The jury could not arbitrarily disregard his uncontradicted, unimpeached testimony. Cf. Quintana-Ruiz, 303 F.3d at 76 (explaining that a jury cannot reject the other side's uncontradicted expert testimony on technical matters outside of lay competence.)
Since Plaintiff failed to impugn Dr. Martinez testimony, the jury was not entitled to reject it, unless his credibility was at issue. Quintana-Ruiz, 303 F.3d at 75-6. A jury may reject testimony if there is affirmative evidence that a witnesses' credibility is at issue or if his testimony is "improbable, inherently contradictory, riddled with omissions, or delivered in a manner giving rise to doubts." Id. at 76.
Plaintiff did not proffer any affirmative evidence that Martinez was not a credible witness. Furthermore, Dr. Martinez' testimony was not improbable, inconsistent or otherwise facially unbelievable. Plaintiff did not adduce any evidence about the knowledge of the ordinary consumer in the 1960's. Defendant Reynolds proffered a disinterested, uncontradicted, and unimpeached expert witness, who testified that the average Spanish speaking consumer in Puerto Rico was well aware of the health risks and addictive nature of smoking in the 1950s and 1960s. Based on Martinez' uncontradicted testimony and the law governing this case, the jury was required to find that Defendant Reynolds did not have a duty to warn the decedent of the risks of smoking before July 1, 1969.
Since Defendant Reynolds had no duty under Puerto Rico law to warn of the risks of smoking during the relevant time period, it is entitled to judgment as a matter of law as to Plaintiff Eli Rogelio Figueroa Cruz' claims of negligence and strict liability.
In accordance with the foregoing, we GRANT Defendant's motion for judgment as a matter of law. We DENY Plaintiff's motion under Rule 49(a)
IT IS SO ORDERED.