Philip Morris’s Latest Trial Victory: 6 Reasons Why the Jury Could Not Find a Design Defect

In one of the latest trials against tobacco industry giant Philip Morris, Santana v. Philip Morris USA, Inc.,¹ & ² a six-member jury was not convinced that the Virginia Slims cigarettes designed, manufactured, and sold by Philip Morris were “defective by reason of their design” and the defect was a “legal cause” of the cancer at issue. On the same afternoon deliberations began, the jury returned the answer “No” on their unanimous verdict form.

Although this verdict, and other defense verdicts like it, might be disappointing to those privy to the massively deceptive historical tactics of the tobacco industry and the significant litigation against them over the past three decades, this article explores the Santana trial solely on its own merits, from the perspective of the jury who, in the author’s opinion, reasonably applied what they heard in trial to the letter of the jury instructions in determining that they could not find the Virginia Slims were defectively designed.

Additionally, the author provides some tips to trial counsel, where inspired.³

Table of Contents

• Overview of the Santana Case & Relevant Background
• Design Defect Under Florida Law
• 6 Potential Reasons Why The Jury Could Not Find a Design Defect
  • Reason #1: Cigarettes have attributes of cigarettes.
  • Reason #2: Cigarettes are a legal product.
  • Reason #3: Tomasa likely understood the dangers of smoking.
  • Reason #4: The cigarette dangers were warned about.
  • Reason #5: The safer alternative design options weren’t reasonable.
  • Reason #6: The legal cause determination was too hefty.

Overview of the Santana v. Philip MOrris Case

Plaintiff Jose Santana, husband and representative of the Estate of Tomasa Santana, filed suit against Philip Morris USA, Inc. alleging the Virginia Slim cigarettes that Tomasa Santana smoked daily for approximately 40 years were defectively designed. Tomasa smoked 1 to 2 packs of Virginia Slims per-day from 1975 to 2015. In July 2015, Tomasa was diagnosed with two separate cancers: an advanced nasal cancer that was argued as being unrelated to her claim and a stage 4 throat cancer that was determined to be medically caused by her smoking Virginia Slims. Tomasa underwent surgery to remove both cancers that same year. Tomasa died in January 2018.

claims asserted by Plaintiff at Trial

Although the live version of Plaintiff’s complaint asserted a variety of claims against Philip Morris surrounding wrongful death, fraudulent concealment, fraudulent misrepresentation, and failure to warn, as of the time of trial strict product liability based on design defect was the sole claim to be determined by the jury. Additionally, Plaintiff’s claim was specifically for damages resulting from Tomasa’s pain and suffering for the throat cancer only, from the date the throat cancer was diagnosed until the date of Tomasa’s death, which spanned approximately 2.5 years.

Not an Engle Progeny Case

Of note, the Santana case was not an Engle progeny case that could directly benefit from the “res judicata effect“ of the Engle v. Liggett class action Phase I verdict rendered in 1999, which had already established general liability against Philip Morris and other tobacco companies for certain qualified claimants moving forward. In other words, Plaintiff had to build his liability and causation case from scratch with a new jury.

Design Defect Under Florida Law

Under Florida law, the Santana jury was instructed to decide whether the Virginia Slim cigarettes were defective by reason of their design and, if so, whether the defect was the legal cause of Tomasa’s throat cancer.

The jury was instructed that a product is defective if:

“…it is in a condition unreasonably dangerous to the user and the product is expected to and does reach the user without substantial change affecting that condition.”

That a product is unreasonably dangerous if:

“…the product fails to perform as safely as an ordinary consumer would expect when used as intended or when used in a manner reasonably foreseeable by the manufacturer.”

That unreasonably dangerous to an ordinary consumer meant:

“…dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases [the Virginia Slims cigarettes], with the ordinary knowledge common to the community as to their characteristics.”

In making their determination as to whether the Virginia Slim cigarettes were defectively designed, the jury was instructed that–

they were allowed to consider:

• the availability, or lack of availability, of a reasonably alternative design of the product; and

they must consider:

• the state of scientific and technical knowledge and other circumstances that existed at the time of manufacture

Finally, the jury was instructed that a design defect of the Virginia Slims is a legal cause of Tomasa’s throat cancer if:

“…it directly and in natural and continuous sequence produced or contributed substantially to producing [the throat cancer] so that it can reasonably be said that, but for the defect, [the throat cancer] would not have occurred.”

Jury Was Not Convinced

The jury was unconvinced of a design defect in the Virginia Slims cigarettes. The question we love to ask here is, why?

6 Potential Reasons Why The Jury Could Not Find a Design Defect

Reason #1:

The jury was not allowed to find that the cigarettes were defective simply because they were cigarettes and had attributes of typical cigarettes.

It appeared that a substantial chunk of Plaintiff’s argument as to why the Virginia Slims cigarettes were defectively designed was rooted around our basic understanding of what a cigarette is. Plaintiff asked the jury to find that the Virginia Slims cigarettes were defective because of their high nicotine, combustion, and/or inhalability. Plaintiff argued that these “defects,” either individually or collectively (they only needed to prove one), made the cigarettes addictive and brought about sustained use and repeated toxicant exposure, ultimately resulting in Tomasa’s cancer.

Defense countered that Plaintiff was essentially asking the jury to find the Virginia Slims were defective because:

1. They contain nicotine
2. They are lit and burned
3. They are inhaled

This is a simplification of Plaintiff’s argument as Plaintiff’s counsel did take the time to explain to the jury the basis of their position when it came to the details associated with each proposed defect and alleged safer alternative designs. However, the Defense’s point still resonated in the basic sense that each of Plaintiff’s design defect theories entailed essential components of the cigarette experience. Of what makes a cigarette a cigarette.

Imagine anyone you have ever spotted smoking a cigarette. They light it, inhale, exhale, and smoke comes out. This is what pretty much all of us visualize when we think of a person smoking a cigarette. When we further consider reasons why cigarettes are smoked, one of the first factors that come to mind is the nicotine contained in them. Similar logic applies when you think of why most people drink coffee (for the caffeine kick) or drink alcoholic beverages (for the alcoholic effect). Of course there are always exceptions–for example, some people may prefer their taste over their effects–but it is fair to say that these products are generally sought for the effect they give. Their attributes are what make them what they are. It would not be surprising if this is one of the things the jury could not move past.

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Reason #2:

The jury was not allowed to blame Philip Morris for a product they are legally allowed to make and sell.

From the moment of Defense’s opening statement until the end of the trial it was repeatedly emphasized to the jury that “cigarettes are a legal product.” As horrible as many people may think they are, and as many lives as they have unfortunately played a role in taking, the Defense made it clear to the jury that “the government has determined” we as individuals have the right to choose whether we want to purchase them and expose ourselves to their risks, as with all products on the market.

By the time they were given their instructions, the jury was again reminded–this time from the mouth of the presiding judge–that they could not hold against Philip Morris the fact that Philip Morris made cigarettes because cigarettes are legal to make and sell. The instructions explicitly stated that:

“Manufacturing, selling, and advertising cigarettes are lawful activities. Therefore, I instruct you that Philip Morris USA Inc. cannot be held liable for merely manufacturing, selling or advertising cigarettes.”

Thus, it would not be surprising if the jury could not get over the fact that cigarettes are legal after all, whether we like them or not.

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Reason #3:

The jury did not believe, or found it very difficult to believe, that an ordinary consumer like Tomasa was unaware of the dangers of smoking when she started in 1975, and especially by 2000.

A big component of establishing design defect is proving that the product performs dangerously beyond what an ordinary consumer would expect. While Plaintiff’s history expert did a thorough job of explaining the history of cigarette culture in the US from the early 1900s to the late 1960s, in particular the ways in which Philip Morris and the tobacco industry at large sought to influence American culture to embrace cigarette-smoking and keep Americans in the dark when it came to the dangers of doing so, the Defense’s public opinion expert also did a convincing job of focusing on US public opinion of cigarettes during the time period of Tomasa’s cigarette smoking, which was 1975-2015.

After going through a series of public opinion polls from the relevant time period, the Defense established that by the time Tomasa arrived to the US and later began smoking, the vast majority of Americans in general and cigarette smokers in particular knew of the inherent dangers of smoking cigarettes and believed they caused lung cancer.

Since the jury was expected to hold what Tomasa knew to the standard of what ordinary consumers purchasing the same Virginia Slims cigarettes knew, this evidence certainly carried weight.

Meanwhile, the Plaintiff attempted to persuade the jury that Tomasa and ordinary consumers were likely not aware of this, and even argued that after Tomasa’s cancer diagnosis in 2015, she still did not make the connection in her mind that her cigarette smoking was a likely cause of her lung cancer. Despite prior contradictory testimony and despite medical records that clearly showed Tomasa’s physicians were strongly encouraging her to stop smoking due to the development of a persistent cough and other health symptoms years before her diagnosis.

Even if the jury was inclined to believe Tomasa may not have known the dangers when she started heavily smoking in 1975, surely the jury thought it was more likely than not that she knew of the dangers by 2000, and definitely before her diagnosis in 2015. It would not be surprising if, in determining what an ordinary consumer like Tomasa would have known of the potential risks associated with smoking Virginia Slims, the jury decided it was unbelievable that Tomasa did not know by 2000. The year 2000 is important because the jury heard compelling evidence that had Tomasa stopped smoking by 2000, her odds of getting throat cancer would have significantly reduced to that of a non-smoker.

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Reason #4:

The jury did not think a product could be defective if its alleged defects, or dangers related to its defects, were blatantly warned about.

Unlike the period in the US before Tomasa’s arrival, by the time Tomasa arrived to the US from her native country of Cuba, every American cigarette package legally had to include, and did include, the Surgeon General’s warnings about cigarette-smoking and its inherent dangers. The jury was told that every time an ordinary consumer bought a pack of cigarettes and pulled one out of the pack, they could see, whether they chose to look at it or not, a warning clearly indicating cigarettes were dangerous.

The jury heard that every single time Tomasa took a cigarette out of the 1-2 packs of cigarettes she smoked every single day, 20-40 cigarettes per day, there were up to four different warnings on each side of the cigarette box. From her period of smoking from 1975-1985, the warning label on every box of cigarettes she smoked indicated:

Warning: The Surgeon General Has Determined that Cigarette Smoking Is Dangerous to Your Health.

From her period of smoking from 1985-2015, the warning label on every box of cigarettes she smoked had at least one of and at most all of the following:

SURGEON GENERAL’S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy.

SURGEON GENERAL’S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.

SURGEON GENERAL’S WARNING: Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight.

SURGEON GENERAL’S WARNING: Cigarette Smoke Contains Carbon Monoxide.

Granted, these warnings do not elicit all risks Philip Morris knew about the dangers of cigarettes, nor do they fully describe the exact basis of the cause of said illnesses and risks. Still, they communicate apparent dangers directly associated with using the product and indirectly touch on the defects alleged in Plaintiff’s case. Defense counsel argued that these warnings were legally sufficient, and made a habit of reminding the jury with every witness it could, and certainly during argumentation, that Plaintiff did not assert a claim that Philip Morris had failed to warn about the inherent dangers in its Virginia Slims.

The jury was also reminded of each of these warnings in the jury instructions. They could have found themselves wondering how a product that blatantly warns about its alleged defects, or dangers related to its defects, can be considered defective. Additionally, these label warnings might have undermined Plaintiff’s argument that ordinary cigarette consumers were unaware of the dangers of smoking. Since jurors are encouraged to use their common sense, it would not be surprising if some of them could not see past this.

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Reason #5:

The jury was not convinced the safer alternative design options were reasonable.

Another potential issue the jury could have ran into is none of Plaintiff’s proposed alternative designs were proven to be safer or reasonable. While the Plaintiff made it clear in closing arguments that they didn’t “have” to prove any safer alternative design “worked,” it certainly could have helped support their claim since the jury was allowed to consider the availability of “reasonable” alternatives in making their determination of a design defect.

In this case, though, it seemed difficult for the proposed alternatives to prevail. In fact, the jury was consistently shown the proposed alternative designs were, at best, not determined to be any safer at all and, at worst, determined to be just as dangerous as, if not more than, the Virginia Slims at issue. Although several brands were mentioned and discussed (VLN, Eclipse, Accord, etc.) none of them were definitively shown to be safer.

High Nicotine

Regarding the alleged high nicotine defect, Plaintiff argued that Philip Morris intentionally “manipulated” the nicotine to make Virginia Slims addictive and that the nicotine levels were unreasonably high. But this point was undermined when the jury heard that nicotine is inherently addictive and natural tobacco has higher nicotine than what is contained in Virginia Slims cigarettes.

As one of its safer alternatives to Virginia Slims, Plaintiff proposed a cigarette brand called VLN, for very low nicotine, since it has 95% less nicotine than conventional cigarettes. While VLN cigarettes certainly sound like they would be healthier than conventional cigarettes, the jury heard testimony that repeatedly established a cigarette containing less milligrams of nicotine does not make nicotine less addictive, does not necessarily result in the smoker smoking less cigarettes, and especially does not prevent the smoker from being exposed to carcinogens. The jury saw that even its literal packaging says less nicotine is “NOT” safer and “All cigarettes can cause disease and death.”

Combustion

Regarding the alleged combustion defect, the jury heard that the burning of the cigarette is what primarily produces and releases a multitude of toxic and carcinogenic chemicals that, once inhaled, are ultimately what leads to the development of cancer. Plaintiff argued that a cigarette with a higher pH that would allow the tobacco to heat but not burn is safer than a Virginia Slims cigarette. Plaintiff proposed a couple of non-combustion cigarette brands, including Eclipse and Accord (a Philip Morris product). In response, the Defense argued that these cigarettes still contain nicotine, still are inhaled, have not been shown to eliminate carcinogens, have been heavily criticized by the public health community, and have not been determined to be less harmful than conventional cigarettes.

Inhalability

The alleged inhalability defect proved very interesting because, again, how can you smoke a cigarette, or anything that is meant to be smoked and ingested, without inhaling it? Since the jury was instructed to consider alternatives “of the product” that did not betray the essence of cigarettes in general, it is very difficult to conceive of a non-inhalable cigarette. The main examples of noninhalable tobacco products that the jury heard were chewable tobacco and premium cigars, which, though not meant to be burned or inhaled, contain high levels of nicotine and are also associated with causing cancer.

Plaintiff’s own oncologist confirmed there was essentially little difference between the cigarettes at issue and the proposed alternatives in terms of safety. It was repeatedly established that low-nicotine, non-combustible, and non-inhalable “cigarettes” were still dangerous for the consumer, could still expose the consumer to carcinogens, and could still cause cancer. In the face of this, the jury may have concluded that none of Plaintiff’s proposed alternatives were “reasonable,” making the product at issue seem acceptable, despite its clear dangers.

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Reason #6:

In order to find Philip Morris liable for a design defect, the jury was also required to find that the defect was the legal cause of Tomasa’s cancer, which was too large a hurdle.

Finally, when the jury faced the question that made all the difference on the verdict form, a two-in-one combo was required. They couldn’t just find that the Virginia Slims cigarettes were defective; they had to additionally find that the defect was the legal cause of Tomasa’s throat cancer. These are, individually, two huge considerations, with many sub-considerations within each of them. On the first part of the question, they are having to weigh whether Virginia Slims were unreasonably dangerous, what the ordinary Virginia Slims consumer knew at the time, and the availability of reasonable alternative designs. On the second part of the question, they are having to weigh how directly the defect itself contributed to Tomasa’s harm, whether any of the alternative designs could have prevented the harm, and whether, aside from the defect, that same harm would have likely occurred. If the jury disagreed on any one of these many sub-considerations, they could not move forward. It could have aided in clarity had the verdict form split these two questions up; since they were paired together, we are left not quite knowing whether the jury could find the defect but not the legal cause, or if they could not find either.

If Defect Was Found, Legal Cause Was Not

Even if the jury was able to agree to a design defect, they would not have been able to move forward if they did not find it was the legal cause. Recall that in order to find legal cause, the jury would need to decide that but for the defect, Tomasa’s lung cancer would not have occurred. Problem with that is, it would have proven difficult based on what the jury heard.

When it comes to the alleged defects in the Virginia Slims cigarettes, the jury had to ask itself, but for the high nicotine, or combustion, or inhalability, would Tomasa have likely still gotten throat cancer? Meaning, would she have likely still gotten throat cancer if, instead of the Virginia Slims, she smoked very low nicotine cigarettes? non-combustion cigarettes? non-inhalable cigarettes? Based on the evidence they heard in trial, the jury was left to unfortunately conclude that even if Tomasa smoked cigarettes that did not have the alleged defects–for the same frequency and same time period that she smoked Virginia Slims–she would likely have had the same predisposition, or likelihood, of getting throat cancer. Left with this realization, it would not surprising if it was too difficult for the jury to get over the legal cause hurdle with the given set of facts.

Defect Not Found

Finally, based on how quickly the jury returned a verdict, and how long it would have taken them to tackle the legal cause determination, it seems conceivable that they did not find the Virginia Slims to be defective by reason of their design, that they were not able to answer yes to part one of the determination question.

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1. Jose Santana, as Personal Representative of the Estate of Tomasa Santana, Plaintiff, v. Philip Morris USA, Inc., Defendant; In the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida, Circuit Civil Division, Case No.: 19-037329 CA 24. ↩︎
2. The full trial is available for viewing on Courtroom View Network (www.cvn.com). All quotations in this article are directly from the trial footage or jury instructions. All graphics are pulled from trial demonstratives used by counsel. ↩︎
3. The author of this article, Sha’Huni Norman, provides unsolicited pieces of advice to counsel where inspired. Tips to counsel for Plaintiff appear associated with this symbol 𝛑 and tips to counsel for Defense appear associated with this symbol 𝝙. These are merely her two cents; some say advice is worth what you pay for it. ↩︎