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Appeals Court of Massachusetts.

Julie LAGADIMAS, personal representative,1 v. R.J. REYNOLDS TOBACCO COMPANY.


Decided: February 01, 2021

By the Court (Rubin, Singh & Hand, JJ.2)


This is a lawsuit brought by the plaintiff, Julie Lagadimas, in her capacity as personal representative of the estate of her mother, Dawn O'Toole. The parties stipulated that O'Toole’s lung cancer and death were caused by Newport cigarettes which were manufactured by Lorillard Tobacco Company, defendant R.J. Reynolds's predecessor in interest. Among the claims brought was a design defect claim. See Evans v. Lorillard Tobacco Co., 465 Mass. 411, 428-439 (2013) (upholding evidence in that case as sufficient to support judgment imposing liability on such theory). The theory of such a claim is well known to the parties and described in Evans. For present purposes, it suffices to say that an essential component of the claim is that it was feasible at the relevant time to manufacture a cigarette with a reasonable alternative design that would have reduced or prevented the harm to O'Toole from the use of the defendant's product. Id. at 428.

In response to the defendant's claim in opening argument that there is “no such thing as a safe cigarette” because all cigarettes contain nicotine and carcinogens, the plaintiff put in evidence from an expert on cigarette design that a cigarette that contained 0.4 milligrams or less of nicotine per cigarette would not be addictive, which could support a conclusion that there was at the relevant times a reasonable and feasible alternative design safer than the one used in the creation and manufacture of the Newport cigarette. The defendant put on no evidence that such a cigarette would not be addictive. Rather, it relied entirely on prior inconsistent trial testimony from other cases introduced in the impeachment of two witnesses for the plaintiff, Dr. Joseph DiFranza and Dr. Kenneth M. Cummings. Ultimately, the jury returned a verdict for the defendants, indicating by special verdict that the defendants did not breach the implied warranty of merchantability by selling cigarettes that were defectively designed, were not negligent in the marketing of cigarettes, and did not engage in a coercive conspiracy with other tobacco companies. The jury found that the defendant did engage in a concerted action conspiracy, but the claim failed because they also found that the plaintiff did not rely to her detriment on misrepresentations by the tobacco manufacturers. The plaintiff has appealed. We address her contentions in turn.

1. Limitations on the testimony of Dr. DiFranza and his rehabilitation on redirect. a. Background.

As described above, a critical question in this case was whether it was technologically and commercially feasible to produce a nonaddictive cigarette containing nicotine.

Trial was held over several days in March of 2019. In his deposition testimony given on May 2, 2018, Dr. DiFranza gave the following testimony:

Q.: “[I]f a cigarette has nicotine, assuming that nicotine is part of the definition of cigarette, there's no such thing as a minimally addictive cigarette, right?”

A.: “I'd say all the marketed cigarettes that contain nicotine are all addictive, whether they're lights or regulars.”

Q.: “You're not aware of any marketed cigarette over history that's been what you would describe as minimally addictive?”

A.: “There was -- trying to remember if it was called Nex. There have been some brands that have very low nicotine in them, and they wouldn't be addictive.”

Q.: “Do you know how low the level would be for something to be non-addictive? How low are we talking?”

A.: “No, we don't have any research showing that. I mean, it wouldn't be that hard to put people in the MRI magnet and have them smoke cigarettes with very little nicotine and see where the threshold is for the brain to become stimulated by the nicotine. That would be possible to do that study, but hasn't been done, as far as I know.”

Q.: “But you can't say even if Ms. O'Toole had started smoking some super, super low nicotine level cigarette, that she would not have become addicted, right?”

A.: “No, I would definitely say if she had smoked cigarettes that had super low levels of nicotine, she wouldn't have become addicted.”

Q.: “Would not have?”

A.: “Would not have.”

On cross-examination at trial, Dr. DiFranza was asked whether “all cigarettes on the market today are equally dangerous.” He responded, “So I'm not familiar with all of the cigarettes on the market. If they contain enough nicotine to get you addicted, then, they would ․”

The witness was interrupted by defendant's counsel, who asked DiFranza about his testimony at a prior trial held in Massachusetts in another case in January 2019, the Warshafsky trial. Defense counsel asked the witness, “You were just asked this very question about six weeks ago in another tobacco case right here in Massachusetts.” DiFranza acknowledged that he was, but testified, “And then I thought about it more since that time.”

In the Warshafsky trial, on January 23, 2019, when asked, “[I]n your opinion all cigarettes, even the ones that I've specifically called out to you, are equally dangerous and equally addictive; right?” DiFranza answered, “Yes. All the ones on the market today.” DiFranza acknowledged he had said that, but said he “later realized after that that I didn't know exactly what cigarettes were on the market today. I'm not an expert on that.”

When asked if he was changing his sworn testimony, DiFranza testified that “my opinion has changed because I realize that I didn't know what was on the market now․” He testified, “I know more now than I did ․ six weeks ago.” He was asked whether “all cigarettes that contain nicotine are addictive,” and his response was “[i]f you are talking about the normal amounts that are in the normal regular cigarettes and lights, then they would all be addictive. If you are talking about some cigarette I'm not familiar with that has very ultra low levels of nicotine, they might not be addictive. I'm not an expert on what's on the market.”

He was asked whether he had answered the question before under oath and he responded, “Yes. And I realized that it was something I didn't know.”

When asked if “[y]ou would agree ․ that if a cigarette contains nicotine, addiction occurs regardless of the levels of nicotine,” he responded, “[I]f you are comparing light cigarettes like Marlboro Lights and Newport Lights versus Marlboro regulars and Newport regulars, yeah, they're all -- they all have nicotine in about the same amount and they all are addictive. But there are some experimental cigarettes that have zero nicotine or trace amounts of nicotine and those probably wouldn't be addictive, the trace ones.”

At this point, counsel for the defendant objected that the defendant had deposed DiFranza, and that “plaintiff's counsel had an obligation to tell us [if DiFranza's opinions had changed] and allow us an opportunity to depose this witness, to take a supplemental deposition and discover what his opinions are.” She argued that DiFranza had taken the stand and was “saying things that are vastly, vastly different than what he said both at his deposition in this case and ․ his prior [sworn testimony].” Counsel argued that “[t]hat is prejudicial, that is unfair, that is trial by ambush, and that is not the way we try civil cases.” She described it as “the textbook definition of trial by ambush.”

Counsel for the plaintiff asserted that “he has a consistent opinion with his deposition.” The judge noted that defense counsel was “impeaching him on this exact prior testimony that is in question,” something with which plaintiff's counsel agreed, and then the judge said, “He's an advocate. And what he's doing now -- what I see -- is changing prior sworn testimony. Now, the cure for that, which is not a great one for you at all, [defense counsel], is you are just going to have to continue to impeach him. And he is not going to be able to give soliloquies․ ‘Yes’ or ‘no.’ Ask him the question: Is this yours? Did you say this? Yes. No. If he starts with anything then I'll remind him his answer is yes or no.”

The judge began to say that plaintiff's counsel could “fix it on redirect,” but the judge rejected the suggestion that plaintiff's counsel would be allowed to simply ask the witness whether he had “had time to go back and think about this and research ․” The judge, referring to rule 26, see Mass. R. Civ. P. 26 (e) (2), 365 Mass. 772 (1974) (“A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which [A] he knows that the response was incorrect when made, or [B] he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment”), said, “There's no supplemental disclosure ․ you all have a continuing duty ․ under the rules of discovery to disclose if anything is going to change. You would have had to have filed a supplemental disclosure to say, Hey, guess what, since Warshafsky six weeks ago, he has changed his mind and he has done some more research and he thinks a different thing․ You wouldn't want to be tried by ambush, they don't want to be tried and I'm not going to allow a trial by ambush. He is ․ not going to say I've come up with new theories or ideas․ They were not disclosed.” Again, counsel for the plaintiff asserted, “Your Honor ․ his deposition testimony in this case is consistent with his testimony today.” The judge ruled, “It's not.” The judge said: “Here's my ruling. Listen carefully. He's not going to say anything about changing his mind or coming up with new theories or new anything. You are locked into what that disclosure was because that's what the disclosure is and he will be held to his disclosure. We are at trial. This is not the time to come up with new theories or anything else. That's my ruling. Let's proceed. Your objections are noted for the record.”

Resuming cross-examination, defense counsel asked DiFranza whether in his deposition he had been asked, “[I]f a cigarette contained nicotine, addiction occurs regardless of the level; right?” and whether he had answered, “Right.” DiFranza acknowledged that was accurate. DiFranza was also asked whether in his deposition he had been asked, “[A]ddiction occurs regardless of the brand or type of cigarette; right?” and whether he had answered, “Yes.” DiFranza again acknowledged that was accurate.

He was asked about another trial at which he had been asked, “And different nicotine content doesn't mean that some cigarettes are more or less addictive than other cigarettes; right?” to which he had answered, “Yes.” When asked by defense counsel, “Are you giving different testimony under oath in this courtroom?” DiFranza answered, “My opinion has changed --.” The judge interrupted him, saying, “ ‘Yes’ or ‘no,’ Doctor,” to which DiFranza responded, “Yes, I am.”

Defense counsel began asking about a series of light and low tar brands of cigarettes, asking DiFranza if he was familiar with the brands, and he responded, “I've seen the advertisements 30 years ago.” The judge again interrupted saying, “Sir, would you please answer the question that is asked of you.” The witness responded, “I'm sworn to tell the whole truth.”

The judge immediately excused the jury. The judge addressed DiFranza:

“The jury will be instructed, Dr. DiFranza, that any statement that you might make about your sworn oath is irrelevant to them right now and should not have been mentioned at all. You are an advocate. You are a partisan witness. I understand that. The jury gets that quite well. You are being asked questions. The truth is not being twisted whatsoever. You are being what's called impeached by your prior sworn testimony. You are required to answer those yes or no. You are going to have opportunity by the plaintiff's side, if they so chose, to try and do redirect of you to cure any other issues whatsoever. You are not a lawyer. You are not the judge. You are a witness in this case and you will respond to the questions as asked of you.”

The judge then dismissed the witness. After further discussion with the attorneys, the judge told plaintiff's attorneys to “go outside and speak with your witness and tell him of my ruling. I'm not going to let him say, I've come to any further decision, I can't say that, I didn't know that. He's not going to start to change testimony on the witness stand at trial. It's just loathsome conduct. Please instruct your witness and then if there's an issue let me know of it and I'll address it.”

Defense counsel moved for a mistrial, and the judge recessed the proceedings to give that motion further consideration, allowing counsel to suggest other remedies in written filings that afternoon.

The following morning, the judge issued a written order, which we quote in its entirety:

“The Defendants’ second Motion for Mistrial is DENIED. The Court fashions the following remedy:

“1. Dr. DiFranza will be admonished by the court in open court and in the presence of the jury that he is not to use cross examination to argue with defense counsel or the court and is not to state any opinions relative to his ‘oath’ or ‘truthfulness’ which is a matter of credibility for the jury to decide.

“2. Dr. DiFranza will listen to the question posed by defense counsel and will provide a ‘yes’ or ‘no’ answer when being impeached by his prior sworn testimony. He may not use impeachment as a vehicle to proffer new/ different opinions or theories or explain his thought process or rationale.

“3. Dr. DiFranza will not state that he has ‘changed his opinions’ or ‘changed his mind’ or read other materials or the like, or in any way suggest new theories/ opinions different from those previously stated in his expert disclosure in this case or those which he has opined in prior sworn testimony.

“4. Defense counsel may read into evidence the prior sworn testimony of Dr. DiFranza which is being used for impeachment and the testimony may be marked as an Exhibit for the jury.

“4. [sic] On re-direct examination of the witness, Plaintiff's counsel is prohibited from eliciting or delving into any issues of changed testimony or opinions. Counsel may not ask, how, when or why the witness has changed his opinions or testimony.

“5. Plaintiff's counsel in closing argument may not mention any new theories/ changed opinions of Dr. DiFranza on any of the subjects he is allowed to testify to in this case.

“6. This Order is to be read by Dr. DiFranza. Counsel for the Plaintiff will fully discuss this Order with the witness prior to the resumption of his testimony. The witness will not be allowed to testify unless and until he affirms to the Court that he has read, understood and will abide by this Order.”

The next morning when trial resumed but before the jury entered, the judge said to the attorneys, “Dr. DiFranza is going to take the stand and speak to me before this jury comes back in.” Turning to DiFranza, the judge engaged in the following colloquy with him:

Q.: “I remind you that you are still under oath. You understand that?”

A.: “Yes.”

Q.: “You have read my opinion?”

A.: “Yes.”

Q.: “You have read my rulings?”

A.: “I have.”

Q.: “Is there any single word in my ruling you don't understand?”

At this point, the witness asked, “If I'm asked what my opinion is today, should I say what my opinion is today?” The judge did not respond directly but referred back to her discussion with plaintiff's attorney where she specified that in cross-examination she was “sure that defense counsel” would not ask the witness about his present opinion. The judge continued the colloquy:

Q.: “My question to you is: Is there any part of this order that you didn't understand? It's very specific as it guides you through your impeachment testimony. Any part of it you didn't understand?”

A.: “No.”

Q.: “Have you read it?”

A.: “Yes.”

Q.: “Have you read it fully?”

A.: “I have.”

Q.: “Do you understand it?”

A.: “Yes.”

Q.: “You intend to abide by my order. Do you not?”

A.: “Yes.”

Q.: “And you understand there are consequences if you do not?”

A.: “Yes.”

Q.: “With that and with the doctor's sworn statement that he has read, understood, and fully intends to comply with my order, I will allow Dr. DiFranza to continue his testimony.”

Before the witness's testimony resumed, plaintiff's counsel reserved his objection to the judge's order.

As to redirect examination, prior to adjournment on March 13 and at the beginning of the next day of trial, plaintiff's counsel repeatedly asked the judge whether he would be able to use DiFranza's deposition testimony to rehabilitate him. The judge repeatedly deferred ruling on that question until cross-examination was over. When she did address the question, the judge ruled that plaintiff's counsel could not read testimony from the deposition to the witness. She ruled that he could ask questions with respect to “specific documents. But I remind you it does not open any door for -- but you do it at your own peril because this witness is not to then start to espouse, so you are going to have to control him rather tightly, [plaintiff's attorney], because it's -- would be at your peril.” The judge ruled that the witness could not be given the transcript to “read it along at all” and specified that plaintiff's attorney “is going to ask him, In this case, in deposition, you were asked this, and did you give that answer? That's what he is going to do.”

Plaintiff's counsel, seeking clarification, said, “I can ask him, Were you asked this question and did you give this answer?” The judge ruled that he could not: “That's almost reading from it ․ [W]hat you can do -- very simple, In this case on such-and-such-a date, you were called as a witness. You gave some testimony․ In that testimony, did you say ․ and get right to what the opinions were ․ It's not question, and then, your answer; question, and then, your answer ․ because ․ that's reading through back of his testimony. Did you give these opinions, yes or no? Did you give those opinions? That's it.”

She made clear that her instructions were “say ‘yes’ or ‘no’ ․ If you have to remind him ‘yes’ or ‘no’ before you give him that, tell him. Because he's under that order ․ [s]o it's at your peril․ Best of luck.”

In the midst of his redirect testimony, plaintiff's counsel began to ask DiFranza about his deposition, beginning: “[D]o you recall testifying that all marketed cigarettes that contained nicotine --” when there was an objection. After reassuring the judge that he could “fix it,” plaintiff's counsel then asked the following two questions:

Q.: “Did you express an opinion that all marketed cigarettes that contain nicotine are all addictive whether they are lights or regulars?”

A.: “Yes.”

Q.: “And do you remember expressing an opinion that there have been some brands that have very low nicotine in them and they would not be addictive?”

A.: “Yes.”

This redirect testimony, which complied with the judge's restrictive order, was the entirety of the rehabilitation during twenty-one pages of redirect examination.

On recross-examination, defense counsel asked DiFranza:

Q.: “You were asked some questions on redirect examination by [plaintiff's attorney] about brands of cigarettes. And I just want to -- I want to be -- I want to clear that up from your testimony at your deposition. You agreed that addiction occurs regardless of the brand or type of cigarette. Correct?”

A.: “Yes.”

Q.: “And that's true regardless of the level of nicotine in the cigarette. Right?”

A.: “Within the normal -- yeah, with the normal cigarettes, yes.”

Q.: “Right.”

A.: “Yes.”

Q.: “So for those cigarettes that contain nicotine, that's true regardless of the level of nicotine. Correct?”

A.: “Yes, with the cigarettes for the normal brands.”

Q.: “And if the cigarette contains nicotine, addiction occurs regardless of the level. Right?”

A.: “Well, if they contain enough nicotine to cause addiction, yes, they would all be addict[ive].”

Q.: “No, sir. This [is] your testimony from your deposition. It was very specific.”

A.: “Yes.”

Q.: “If a cigarette contains nicotine, addiction occurs regardless of the level. Right?”

A.: “Yes.”

The witness was then excused.

b. Analysis. As our description shows, it is clear that the testimony DiFranza sought to give on cross-examination about the possibility of a nonaddictive low nicotine cigarette was, as plaintiff's counsel argued below, consistent with the testimony given in his deposition.3 Consequently, the case in fact presented no issue with respect to the plaintiff's continuing obligation of disclosure under Mass. R. Civ. P. 26 (e) (2), and no issue of trial by ambush.4 The judge's conclusions on these matters, which derived from her mistaken conclusion that the testimony sought to be given at trial was at variance with the opinion given at deposition, were therefore in error. The limitations on the witness's testimony on cross-examination, the restrictions contained in the judge's written order, and the stark limitations the judge imposed on rehabilitation during redirect examination, were thus also in error.

As noted, plaintiff's counsel was careful to preserve his objections. As a consequence of these errors and their impact upon the examination of the witness, the jurors could easily have been left with the impression that the witness's actual opinion was that no cigarette with nicotine in it was nonaddictive, and that the suggestions to the contrary that he made were a recent, dubious contrivance.

Given the centrality of the question of a nonaddictive alternative to the addictive cigarettes manufactured by Lorillard, and the fact that the defendants themselves put on no evidence that a nonaddictive nicotine-containing cigarette could not be manufactured, but relied instead on DiFranza's deposition and the prior testimony at the Warshafsky and other trials, as well as the prior testimony of another witness, Dr. Kenneth M. Cummings, going so far as to put an out-of-context quotation from DiFranza's deposition along with a picture of Dr. DiFranza on a slide for the jury to see during closing, the judge's error in this regard was prejudicial. See Commonwealth v. Palermo, 482 Mass. 620, 625 (2019) (“[a]n error is prejudicial if we cannot find with fair assurance that it did not substantially sway the verdict” [quotation, citation, and brackets omitted]). As a consequence, the judgment must be reversed and the matter remanded.

2. Additional claims. The plaintiff makes two additional claims, which we will address, as they may recur on retrial.

a. Substantive use of prior inconsistent sworn testimony. The first is that the defendant should not have been able to utilize as evidence in its closing the sworn prior inconsistent statements of DiFranza and Cummings, which were introduced not in the defendant's case in chief, but as impeachment evidence in cross-examination.

Our courts have held that prior inconsistent statements of a witness made under oath at a previous proceeding, and utilized to impeach that witness, may come in as substantive evidence. See, e.g., Commonwealth v. Ragland, 72 Mass. App. Ct. 815, 823 & n.9 (2008); Mass. G. Evid. § 801(d)(1)(A) (2018) (providing that a statement is “not hearsay” if the testifying declarant's prior statement is “inconsistent with the declarant's testimony,” “was made under oath ․ at an earlier trial ․ or a deposition,” “was not coerced,” and “is more than a mere confirmation or denial of an allegation by the interrogator”). See also Commonwealth v. Belmer, 78 Mass. App. Ct. 62, 64-65 (2010); Proposed Mass. R. Evid. § 801(d)(1)(A). We are not persuaded by the plaintiff's argument that this rule, which our appellate courts have announced and applied in criminal cases, ought not to apply with equal strength to civil cases. Indeed, as long ago as 1984, the Supreme Judicial Court noted that “the probative use of prior inconsistent statements from depositions in civil cases may follow inevitably from our decision.” Commonwealth v. Daye, 393 Mass. 55, 57 n.2 (1984). The court there noted that “in civil cases no constitutional issues concerning the right of confrontation are presented, and ․, in any event, the deponent usually will have been subjected to contemporaneous cross-examination,” suggesting that, given the rule's application in criminal cases, a fortiori, it would apply in civil cases as well. Id.

b. Motivation evidence. Finally, over objection, the plaintiff was not permitted to make reference to a charitable trust set up by the plaintiff that was purportedly intended to receive some portion of any damages awarded to the plaintiff. At the same time, over objection, the defendant was allowed to argue to the jury in closing that “you can only award punitive damages on Mrs. Lagadimas, the plaintiff in this case. They can't go to American Cancer Society or any charity.”

The plaintiff argues that she was entitled to put on evidence of her motivation for bringing the suit. In the alternative, she argues that because she was not permitted to put on such evidence, the defendant should have been precluded from arguing that punitive damages should not be awarded because they would not go to charity, but only to the plaintiff.

We address the two issues involved in turn. We see no abuse of discretion or other error of law in the judge's conclusion that evidence of the existence of a charitable trust to which some of any proceeds from the suit would go was not admissible, because it was irrelevant to the merits of the case. See Commonwealth v. Hampton, 91 Mass. App. Ct. 852, 854 (2017) (“Irrelevant evidence is not admissible․ To be relevant, evidence must have a rational tendency to prove an issue in the case, or render[ ] the desired inference more probable than it would have been without it” [quotations and citations omitted]). By the same token, we think that it was error for the defendant to argue in closing that punitive damages would go only to the plaintiff, and that they would not go to any charity that might address problems relating to smoking or cancer. At argument, defendant's counsel could point to no way in which that part of the closing was relevant. To the extent that it might be meant to suggest that punitive damages would not serve any public purpose because they are paid to the individual plaintiff, the Legislature has determined that both deterrent and punitive purposes are served by punitive damages in a case such as this. An argument to the contrary amounts only to urging the members of the jury not to follow the law as provided to them by the judge. To the extent it was intended to suggest that the plaintiff's motive for bringing the suit was greed, it amounted to an impermissible comment about the motivations behind the plaintiff's suit, which was irrelevant to the merits of the case.

Judgment reversed.5


3.   The testimony appears to have been inconsistent only about the irrelevant question whether a nonaddictive low nicotine cigarette was available on the market at the time of trial.

4.   Consequently, we need not decide what plaintiff's obligation would have been under Mass. R. Civ. P. 26 (e) (2) had there been a change of opinion on the part of DiFranza.

5.   The proceedings at any retrial shall not be inconsistent with this memorandum and order.

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Docket No: 19-P-1722

Decided: February 01, 2021

Court: Appeals Court of Massachusetts.

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