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• WD65542: Lincoln Smith, et al., Respondents v. Brown & Williamson Tobacco Corporation, Appellant. 

10) Sufficient evidence was presented that a tobacco company's act of manufacturing or selling defective or unreasonably dangerous cigarettes was tantamount to intentional wrongdoing where the evidence demonstrated that the tobacco company: had an active process of creating controversy regarding the health risks of smoking; planned to dispute every Surgeon General's Report, regardless of its basis; had policies of preventing harmful information from becoming available to the public; and established procedures to ensure negative information did not reach the public.

Dissenting Summary by Judge Smart: The dissent argues that the majority wrongly interprets the wrongful death statute and that the plain wording of the statutory language creates a condition for the filing of a wrongful death action by the survivors of a tort victim. In this case, that condition is not fulfilled because the decedent, having already resolved her tort claim, would be precluded from bringing another suit against B&W.

The dissent also argues that Smith fails to make a submissible case as to causation on the failure to warn claim, because the evidence showed that no warning would have been effective. The dissent also argues that there was no basis for applying a presumption that a warning would have been heeded.

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10) Sufficient evidence was presented that a tobacco company's act of manufacturing or selling defective or unreasonably dangerous cigarettes was tantamount to intentional wrongdoing where the evidence demonstrated that the tobacco company: had an active process of creating controversy regarding the health risks of smoking; planned to dispute every Surgeon General's Report, regardless of its basis; had policies of preventing harmful information from becoming available to the public; and established procedures to ensure negative information did not reach the public.
Majority Opinion in the Smith appeal.