Appeals Court reinstates 93A claim against tobacco company

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In brief

• Appeals Court vacates defense verdict on Chapter 93A claim against Philip Morris
• Court rules 93A claim does not require proof of underlying tort liability
• Jury instruction improperly limited consumer protection claim
• Decision clarifies preservation of objections under Rule 51(b)

A jury did not need to find a tobacco company liable for fraud and misrepresentation in order to hold it liable for violating Chapter 93A, the Appeals Court has ruled.

Plaintiff Peter Agnitti sued defendant Philip Morris USA for breach of the implied warranty of merchantability and liable for negligence, fraud and misrepresentation, wrongful death and 93A violations, alleging that its false and misleading representations about the safety of its products caused the death of his wife, a lifelong cigarette smoker, from lung cancer.

A Superior Court judge instructed the jurors that to find for the plaintiff on his 93A claim, they had to find Philip Morris liable for one of the underlying tort claims.

The jury subsequently issued a defense verdict on all counts.

Conceding that the 93A claim was derivative of the fraud and misrepresentation claim, the plaintiff on appeal argued that by requiring the jury to find liability for fraud and misrepresentation, which requires plaintiffs to prove they reasonably relied on the defendant’s deceptive statements, the judge imposed an improperly restrictive standard for 93A liability, which does not require proof or such reliance.

The Appeals Court agreed.

“[W]e conclude that the plaintiff made ‘a plausible showing that the jury might have reached a different result absent the erroneous instruction,’” Judge Robert E. Toone Jr. wrote for the panel, quoting the Appeals Court’s 2022 decision in Main v. R.J. Reynolds Tobacco Co., et al. “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.”

The court also ruled that though plaintiff’s counsel — while objecting to the proposed instruction at the charge conference — did not specifically object to the instruction post-charge as contemplated by Rule 51(b) of the Massachusetts Rules of Civil Procedure, the judge’s acknowledgement pre-charge that “both parties have lodged their objections with regard to the jury instructions as read” was sufficient to preserve the issue for appeal.

The 16-page decision is Agnitti v. Philip Morris USA Inc., et al., Lawyers Weekly No. 11-019-26.

An end to the confusion?

Andrew Rainer of Boston, one of the attorneys for the plaintiff, said the decision is in line with Aspinall v. Philip Morris Companies, Inc., a 2004 case in which the Supreme Judicial Court clarified that elements of a claim of deception under Chapter 93A are not the same as the elements of common law fraud.

Regardless, Rainer said, lawyers have argued repeatedly for more than two decades that the two claims are synonymous.

“I am hoping that the Appeals Court’s decision in Agnitti will finally put an end to this confusion,” he said, adding that, as the SJC stated in its 1996 Kansallis Finance Ltd. v. Fern, et al. decision, Chapter 93A was designed to provide broader, more comprehensive relief to victims of dishonest conduct than might be available under common law.

Chapter 93A permits a wholly standalone statutory cause of action that is independent of any other tort or contract claims. Any other finding would entirely eliminate suits in which 93A is the sole cause of action. That cannot be what the Legislature intended when it sought to protect the commonwealth’s consumers from bad corporate actors.

— Paula S. Bliss, Natick

Paula S. Bliss, a Natick attorney who handles tobacco cases, said that while the tobacco industry has been trying for years to rewrite longstanding Massachusetts law and precedent in its favor, the Appeals Court got it right in Agnitti.

“Chapter 93A permits a wholly standalone statutory cause of action that is independent of any other tort or contract claims,” said Bliss, who was not involved in the case. “Any other finding would entirely eliminate suits in which 93A is the sole cause of action. That cannot be what the Legislature intended when it sought to protect the commonwealth’s consumers from bad corporate actors.”

Sharon trial lawyer Andrew D. Nebenzahl agreed, pointing to the court’s comment that a 93A claim is “sui generis.”

In fact, Nebenzahl said, he once handled a products case involving a defective tire and rim and the jury found a breach of warranty, but the judge found different facts and did not conclude that there was a 93A violation.

Nebenzahl also thought the Agnitti court’s finding that plaintiff’s counsel preserved their objection to be noteworthy. Specifically, he found it to be a recognition of the enormous challenges lawyers face at the end of trial when dealing with jury instructions.

“Rule 51 is so specific about what has to be done to preserve an objection that when a judge, at the end of a lengthy trial, says, ‘Don’t worry about that — you don’t have to do that,’ it puts lawyers in an awkward spot,” Nebenzahl said. “This opinion clarifies that lawyers can rely on that sort of comment from a trial judge and still have their objections preserved, which will be enormously helpful to the trial bar.”

Christopher P. Fitzgerald of Boston said the decision illustrates how a valid and complete defense to a products liability claim might not be a complete defense to a Chapter 93A claim.

But more often, he said, the underlying basis for the 93A claim will mirror the other products liability claims in the case.

“For example, we often see 93A claims premised upon an alleged breach of the implied warranty of merchantability,” Fitzgerald said. “Under those circumstances, the 93A claim is derivative in nature and a plaintiff’s ability to prevail on the 93A claim will be dependent upon the plaintiff prevailing on the breach of warranty claim.”

New York attorney Scott A. Chesin, who represented the defendants, did not respond to requests for comment.

Instruction challenge

The plaintiff’s late wife, Lorna Agnitti, started smoking at age 10. She smoked primarily Marlboro and Marlboro Lights, both Philip Morris brands, over the next 50 years.

She was diagnosed with lung cancer in 2019, and she and the plaintiff brought suit in Superior Court the following year alleging breach of the implied warranty based on design defect, negligence, fraud and misrepresentation, and Chapter 93A violations.

After Lorna died in 2022, the plaintiff added a wrongful death claim.

By request of the parties, all claims, including the 93A claim, were tried before a jury.

At the charge conference, the defendants argued for an instruction under which the jury could find a Chapter 93A violation only if it found for the plaintiff on one of the tort claims.

Plaintiff’s counsel responded that his 93A claim was not so limited and that its elements differed from the other claims.

Judge Camille F. Sarrouf Jr. ultimately gave the instruction proposed by the defendants.

Before the judge charged the jury, Philip Morris’ attorney stated: “I assume Your Honor does not want us to come to the sidebar after you read the instructions and reassert all of the objections we made, both in writing and at the charge conference.”

Sarrouf responded: “I can acknowledge the fact that both parties have lodged their objections with regard to the jury instructions as read.”

After a 20-day trial, the jury issued a defense verdict on all claims.

The plaintiff appealed, challenging the jury instruction.

Reversal in part

Ruling on the issue of whether the plaintiff preserved his objection, the Appeals Court warned that under Rule 51(b), a post charge objection should be made with specificity and that counsel “proceeds at considerable peril” in objecting to an instruction simply by referring to discussions and rulings during a charge conference.

Regardless, the court continued, the purpose of Rule 51(b) is to put the judge on notice of the issue, and the judge’s exchange with counsel pre-charge satisfied those requirements.

Turning to the issue of the instruction itself, the panel noted that as plaintiff’s counsel explained at the charge conference, the standard for liability under Chapter 93A differs from that for fraud and misrepresentation in that a 93A claim based on deceptive acts 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.

For those reasons, the panel found, the 93A claim was not “legally intertwined” with the fraud and misrepresentation claim such that a jury’s failure to find liability on that or any other tort claim precluded 93A liability.

Meanwhile, the court rejected the defense argument that the plaintiff’s requested instruction lacked any evidentiary basis.

The panel noted that the plaintiff presented evidence that, in response to scientific studies in the 1950s showing a link between cigarette smoking and lung cancer, cigarette sales dropped and tobacco companies, including Philip Morris, conducted a public relations campaign designed to cast doubt on whether cigarettes caused lung cancer.

“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,” Toone wrote. “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 such evidence, the Appeals Court concluded the instruction was faulty and vacated the judgment on the 93A claim.