Consumer protection – Cigarettes – Jury instruction

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Where a jury returned a verdict for a defendant tobacco company under G.L.c. 93A, a remand must be ordered because the trial judge erred by giving the jury an instruction that effectively precluded a finding of liability under Chapter 93A unless the jury also found liability under the more restrictive standard for fraud and misrepresentation.

“The plaintiff, Peter Agnitti, individually and as personal representative of the estate of his wife, Lorna Agnitti (Lorna), appeals from a judgment entered in the Superior Court on a jury verdict for the defendant, Philip Morris USA Inc. (Philip Morris). …

“The plaintiff contends that the judge erred in instructing the jury that, to find for the plaintiff on his c. 93A claim, they had to find the defendants liable on one of the tort claims for breach of warranty, fraud and misrepresentation, negligence, or civil conspiracy. We agree that was error. …

“… Here, the plaintiff concedes that part of his c. 93A claim was derivative of his claim for breach of the implied warranty of merchantability, for which the jury found in the defendants’ favor.

“Other parts of the c. 93A claim, however, were not derivative. The plaintiff alleged that the defendants violated c. 93A, §2, by making false and misleading representations concerning the safety and addictiveness of their products. As the plaintiff’s counsel explained at the charge conference, the standard for liability under c. 93A differs from that for fraud and misrepresentation. Indeed, ‘a claim under c. 93A “goes far beyond the scope of the common law action for fraud.”’ … To prevail on a claim for fraud and misrepresentation, a plaintiff ‘must show the defendant (1) made a false representation of material fact, (2) with knowledge of its falsity, (3) for the purpose of inducing the plaintiff to act on this representation, (4) which the plaintiff justifiably relied on as being true, to her detriment’ (citation omitted). … By contrast, a c. 93A claim based on deceptive acts or practices does not require proof that the plaintiff relied on the representation, or that the defendant knew the representation was false and intended to deceive the plaintiff. … Furthermore, even a statement that is ‘true as a literal matter’ can violate c. 93A if it creates ‘an over-all misleading impression through failure to disclose material information’ (citation omitted). … For these reasons, the plaintiff’s c. 93A claim was not ‘legally intertwined’ … with the fraud and misrepresentation claim such that the jury’s failure to find liability on the latter (or any other tort claim) precluded liability under c. 93A.

“Nor can we say that there was no ‘evidentiary basis’ for the c. 93A instruction requested by the plaintiff. … At trial, the plaintiff contended that the defendants engaged in ‘unfair or deceptive practices while selling their products.’ He presented evidence that, after scientific studies in the 1950s showed a link between cigarette smoking and lung cancer, cigarette sales dropped for the first time since the Great Depression, and, in response, Philip Morris and other tobacco companies developed a public relations campaign intended to cast doubt on whether cigarettes caused lung cancer. The companies established and funded organizations to perpetuate the false notion that there was a scientific controversy about the health risks of cigarette smoking. They also denied that nicotine, the main active ingredient in tobacco, was addictive, even after the Surgeon General reported it was in 1988, and even though the companies had studied what levels of nicotine were necessary to create and sustain addiction. Finally, Philip Morris promoted ‘filtered,’ ‘light,’ and ‘low tar’ cigarettes as healthier alternatives to regular cigarettes, despite knowing that these products were not safer.

“In light of this evidence, we conclude that the plaintiff made ‘a plausible showing that the jury might have reached a different result absent the erroneous instruction.’ … The judge’s instruction effectively precluded a finding of liability under c. 93A unless the jury also found liability under the more restrictive standard for fraud and misrepresentation. That ‘unduly narrowed’ the issue for the jury to consider. …

“So much of the judgment as entered in favor of Philip Morris on the claim for violation of G.L.c. 93A is vacated and set aside, and the matter is remanded to the Superior Court for further proceedings consistent with this opinion. The judgment is otherwise affirmed.”

Agnitti v. Philip Morris USA Inc., et al. (Lawyers Weekly No. 11-019-26) (16 pages) (Toone, J.) The case was tried before Camille F. Sarrouf Jr., J., in Superior Court. Celene H. Humphries, of Florida, for the plaintiff; Scott A. Chesin for Philip Morris USA Inc. (Docket No. 24-P-780) (March 13, 2026).

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