Jump to full article: The Missouri Judiciary, 2006-08-29
Intro: AFFIRMED.
Division Three holds: (1) Missouri law does not require plaintiffs to introduce evidence of "reasonable alternative design/risk-utility" to make a submissible case in a strict product liability claim of defective design. Federal law does not preempt state law tort liability claims beyond those related to failure to warn in claims arising after 1969 related to advertising and promotion.
(2) The open and obvious exception to the duty to warn of dangerous products and conditions does not obviate the duty to warn of latent or hidden dangers in a negligence action, and the lack of consensus as to "common knowledge" of the dangers of nicotine addiction and the risk of laryngeal cancer prior to 1969 makes the issue one for the jury's consideration where plaintiff presented sufficient evidence.
(3) Where the defense is raised in a negligence claim that a plaintiff had knowledge of the risk of danger sufficient to obviate the duty to warn, it is for the jury to determine the adequacy of that knowledge, and Thompson presented sufficient evidence to submit the issue to the jury.
(4) Defendant's conduct need not be the sole cause of injury, but simply a cause or contributing cause, and evidence was sufficient to make a submissible case where Thompson's expert witness testified to a reasonable degree of scientific certainty that Thompson's entire 30-year history of smoking caused his cancer.
(5) Loss of consortium claim is derivative of spouse's underlying valid tort claim, and Rules 66.01(d) and 55.33(c) permit the trial court to exercise its discretion to allow the filing of an amended pleading adding a claim of loss of consortium which relates back to the date of the injured spouse's original petition.
(6) Missouri has adopted the doctrine of comparative fault for reasons of fairness, and where substantial evidence of comparative fault is presented at trial, plaintiff may elect to reduce his or her recovery rather than risk denial of any award, and defendant may not withdraw comparative fault from the jury's consideration, as to do so would effectively reinstate the concept of contributory negligence.
(7) Federal law did not preempt state law claim of negligence alleging a duty to warn of dangers of nicotine and carcinogens prior to 1969; the jury, therefore, was instructed properly by MAI-compliant instruction, and the trial court did not err in refusing defendant's limiting instruction on the issue.
(8) The trial court was aware of federal law precluding failure to warn claims against tobacco manufacturers after 1969 in granting of the tobacco companies' preemption objections during trial. Where MAI-compliant jury instructions did not permit the jury to assess fault based on a post-1969 duty to warn, the trial court did not err in refusing the tobacco companies' limiting instructions on the issue.
(9) The trial court did not abuse its discretion in admitting evidence. The record revealed the trial court was clearly aware of limitations based on federal law regarding tobacco manufacturers' post-1969 duty to warn.
(10) The tobacco companies failed to properly support contentions that trial court erred in admitting allegedly privileged documents into evidence. Their brief listed no applicable citations to Missouri law regarding privilege, did not relate a contended privilege to specific evidence and did not describe how the trial court erred in admitting the evidence. It therefore left nothing for appellate review.
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