Smith v. Brown & Williamson Tobacco Corp.

JAMES M. SMART, JR., Judge,

dissenting.

While I concur with much of the majority opinion, I write separately to express disagreement with certain significant aspects. First, I am persuaded that plaintiffs failed to make a submissible case with regard to the failure-to-warn claim. Second, I disagree with the extensively developed (and in my view unnecessarily developed) hypothesis of the majority opinion that the wrongful death statutes can be construed in such a way as to allow a wrongful death claim after the decedent’s personal injury claim was previously settled or adjudicated by the decedent.

I

I will turn first to the issue of whether the state court wrongful death action was procedurally barred by a prior adjudication. This requires some extended discussion of procedural history.

Mrs. Smith filed her personal injury action (asserting thirteen claims) against Brown & Williamson in federal court in 1996. In 1999, Brown & Williamson moved for summary judgment on various grounds. The district court thereafter issued its ruling granting most of the relief sought by Brown & Williamson. At that point, ten of Mrs. Smith’s claims had been ruled against her by the federal district court. Remaining were claims of design defect, negligent research and testing, and implied warranty.

In May 2000, before those remaining claims were fully resolved, Mrs. Smith passed away. Thereafter, Lincoln Smith, as personal representative, was substituted as plaintiff in order to allow him to pursue a survival action under 537.020. At that point, the parties focused on the factual issues as to whether Mrs. Smith’s death resulted from lung cancer. The parties agreed that if her death had not been caused by lung cancer, but by something else, then a survival action would be proper. Otherwise, a death claim would be appropriate (assuming plaintiffs could prove that smoking caused the lung cancer), at least as to the claims that survived the summary judgment rulings of the district court.

Because the attorneys for Mr. Smith were contemplating a wrongful death claim, Brown & Williamson filed an inter-pleader action in an effort to force the personal representative and other family members (who were named interpleader defendants) to choose either the death claim or the survivorship claim. The trial court believed that an interpleader was unnecessary because the jury could be instructed in such a way as to avoid a risk of inconsistent adjudications. The court suggested that the personal representative and the other family members be allowed to amend the petition to assert alternate respective claims.

The parties reached an agreement, which the court adopted in an order. That agreement called for Lincoln Smith, as *825 personal representative, to dismiss the survival action with prejudice, and Brown and Williamson to dismiss the interpleader with prejudice. The parties were in effect agreeing that the lung cancer was the cause of death (though not agreeing that tobacco caused the lung cancer). The agreement also provided that “the fact that the survival action is dismissed with prejudice as a consequence of the inter-pleader action shall not be used by Brown & Williamson as a defense to a wrongful death action arising from the death of Barbara Smith, if one is filed.” 1

In March 2003, almost three years after Mrs. Smith passed away, Mrs. Smith’s survivors initiated this wrongful death action in the circuit court. They alleged the three claims left over from federal court after summary judgment, and joined them with a failure-to-warn claim that had been decisively ruled against Mrs. Smith by summary judgment in federal court. Brown & Williamson’s answer pleaded, inter alia, defenses of res judicata and collateral estoppel as a procedural bar to all the claims. Brown & Williamson relied on the language of both 537.080 and 537.085 in pleading its defenses.

Plaintiffs, acknowledging the prior dismissal with prejudice in the federal court, argued instead that the wrongful death act should be construed to permit them to relitigate the claims. The record fails to disclose why, but initially plaintiffs did not argue that the above-mentioned agreement with Brown & Williamson, adopted by the federal court, preserved their right to pursue the death claims. Instead, though they now suggest the agreement protects their claims, they first argued that their claims were not barred by a reasonable interpretation of the wrongful death statutes.

The plain language of section 537.080 is clear:

Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death has not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the coiporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: ...

Also clear is the plain language of section 537.085:

On the trial of such action to recover damages for causing death, the defendant may plead and prove as a defense any defense which the defendant would have had against the deceased in an action based upon the same act, conduct, occurrence, transaction, or circumstance which caused the death of the deceased, and which action for damages the deceased would have been entitled to bring had death not ensued.

(Emphasis added).

*826 Although these are two separate statutory sections, it would seem that the second is at least partially implicit in the first, and is specified separately only to clarify that all defenses, including but not limited to contributory or comparative fault, may be asserted against the death claimants. Here, the issue was whether a defense of claim preclusion may be asserted based on a prior adjudication. Although Mrs. Smith did not personally release her claims, her personal representative (her husband, Lincoln Smith) and other family members made the decision to allow dismissal of the remaining claims after the adverse adjudication of most of her claims. The family members, named as interpleader defendants, were part of the agreed order.

Apart from any agreement to the contrary between the parties, a procedural history involving dismissal with prejudice might compel a conclusion that the adjudicated claims were finally adjudicated. See, e.g., Hope v. Klabal, 457 F.3d 784, 788-90 (8th Cir.2006). However, in view of the uncertainty flowing from the agreed order in federal court, I am not confident that the claims were to be considered fully adjudicated in federal court in a way that would bar the claims in a wrongful death action in state court. Arguably, the entire purpose of the agreed order in federal court was to preserve the right of the survivors to bring a wrongful death claim. Neither I nor my colleagues were aware earlier in the case of this entire procedural history. Most likely the majority’s attempt to construe 587.080 is completely unnecessary — assuming that the effect of the agreed order in federal court was to remove any issue as to the procedural right of the survivors to bring the wrongful death claim.

Along with believing that the majority need not even reach its extended and hypothetical construction of section 537.080, I also dissent from the construction reached, and find it necessary to register my disagreement for several reasons. First, I believe the majority’s interpretation, if applied in a case where it mattered, would undermine the effect of the clear language of 537.080 and 537.085. 2

The opinion of the majority raises, sua sponte, the question of whether our understanding of the wrongful death cause of action was changed by O’Grady v. Brown, 654 S.W.2d 904, 908-09 (Mo. banc 1983). Instead of assuming a straightforward application of the language of section 537.080, the majority wonders about O’Grady , then undertakes a survey of divergent jurisdictions and commentators, and decides to decide this case on the basis that it is “logically inconsistent” that “something a decedent does diming his or her lifetime bars a wrongful death cause of action.” If there is a logical inconsistency, it is a logical inconsistency that the General Assembly has lived with for over a hundred years, as discussed below. Moreover, the opinion of the court takes the surprising position that the defendant has waived any argument under 537.085, and so it purports to construe only 537.080, as though that section may be understood without the benefit of 537.085.

*827 A survey of other states, as the majority undertakes, is inappropriate obiter dictum because the language of the Missouri statute differs from that of many states. Indeed, the Missouri Supreme Court has cautioned against referring to cases decided under other death statutes because “little, if any, aid is to be had from any source other than our own statute and cases interpreting it.” Jackson v. St. L.-San Fran. Ry. Co., 357 Mo. 998 , 211 S.W.2d 931, 934 (1948) (noting that at that time only Colorado and New Mexico copied the language of Missouri act). In any event, to the extent that other states’ language is similar, the “vast majority” would hold that the settlement or adjudication of the claim by the deceased constituted a bar to the death claim. See Simmons First Nat’l Bank v. Abbott, 288 Ark. 304 , 705 S.W.2d 3 (1986). 3 See also PROSSER & Keeton, The Law of Torts section 127, at 955 (5th ed.1988).

Allowing the survivors of a deceased tort victim to seek recovery following the victim’s death was designed, inter alia, to serve the purpose of accountability (so that the tortfeasor will not be better off to kill a victim than to have the victim survive). See O’Grady v. Brown, 654 S.W.2d 904, 908-09 (Mo. banc 1983). The General Assembly believed that society derives a benefit from having a civil means of accountability for a wrongfully caused death. Id. Once accountability has been served, however, the legislature did not choose to allow a subsequent action by the deceased’s survivors. Strode v. St. Louis Transit Co., 197 Mo. 616 , 95 S.W. 851, 853 (1906).

The Missouri wrongful death statute, in both its present form and in all its earlier forms, generally rules out the scenario of the survivors of a tort victim seeking to assert a wrongful death claim after the tort victim has already resolved the personal injury claim.

Whenever the death of a [tort victim] results from an act ..., the [tort-feasor] which would have been liable if death had not ensued shall be liable....

Section 537.080. Under this statute, a death action cannot be brought by the family unless the decedent could have maintained the action if the decedent had not died. The purpose of accountability is presumed to have been served when the tort victim has pursued and resolved a claim for the injuries.

In Strode, 95 S.W. at 853 , the Missouri Supreme Court addressed the very question decided by the majority in this case, and decided it exactly the opposite of the majority’s decision here:

We then confront, in direct and unmistakable terms the question as to whether or not, where a person is injured due the negligence or default of another, and before death, makes a settlement with the wrongdoer, can his widow or children yet maintain an action for the death and accrued damage, if any, by reason thereof. This question, we feel constrained, under the authorities and our statutes to answer in the negative.

*828 One argument made in Strode was that the wrongful death act was an independent or new cause of action (not a derivative cause of action), and therefore it could not be barred by the decedent’s settlement of the claim. The Court addressed that argument by stating that the argument as to the category of the claim was irrelevant to the issue before it.

Whether the cause of action given to the widow or children [by the statute], be denominated a transmitted right, a survival right, or an independent cause of action, it yet remains true that the foundation and gist of each and all is the negligent act which produced the injury. The negligent act was the basis at common law for the cause of action in the husband, and it is likewise the gist and basis of the cause of action in favor of the widow or children, or of the administrator as in some states provided.

Id, at 853. The court held that the claims of the decedent’s survivors were barred. Id.

For this reason, the decision in O’Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), cannot affect the grounds of the Strode decision. O’Grady does not mention Strode , or change Strode , or change the cases that have followed Strode. See, e.g., Smith v. Kiel, 115 S.W.2d 38 (Mo.App.1938); Schmelzer v. Central Furniture Co., 252 Mo. 12 , 158 S.W. 353 (1913); Campbell v. Tenet Healthcare System, 224 S.W.3d 632 (Mo.App.2007).

The Court in O’Gmdy stated that “a cause of action for wrongful death will lie whenever the person injured would have been entitled to recover from the defendant but for the fact that the injury resulted in death.” Id. at 910-11. “But for the fact that the injuries [to the unborn child in O’Gmdy ] resulted in death, the child would have been born alive and ‘entitled to recover’ from respondents.” Id. at 911. (emphasis in original). Thus, the ruling in O’Grady was a decision to enforce the language of the statute as written so that it would apply when the injury caused death, whether within or without the womb.

The majority focuses on the fact that the Court in O’Grady decided that, at least for some purposes, the cause of action was a “new” cause of action. See id. at 910 . That decision did not conflict with any ruling in Strode , because Strode avoided deciding that issue. See id. at 910-11; see State ex rel. Thomas v. Danes, 314 Mo. 13 , 283 S.W. 51, 54 (1926). The Court in Strode emphasized that it did not matter whether the cause of action was derivative, or a survival right, or a new cause of action. 95 S.W. at 853 (emphasis added). And, again, three pages later the Court said:

Whether the right of action is a transmitted right or an original right; whether it be created by a survival statute or by a statute creating an independent right, the general consensus of opinion seems to be that the gist and foundation of the right in all cases is the wrongful act, and that for such wrongful act but one recovery should be had, and that if the deceased had received satisfaction in his lifetime, either by settlement and adjustment or by adjudication in the courts no further right of action existed.

Id. at 856 (emphasis added).

Whether a right of action under 537.080 is a transmitted right or a survival right or a new right is an issue that has popped up multiple times in the past. See, e.g., Bates v. Sylvester, 205 Mo. 493 , 104 S.W. 73, 74 (Mo.1907). Jackson v. St. Louis-San Francisco Ry. Co., 357 Mo. 998 , 211 S.W.2d 931, 933 (1948); Cummins v. Kansas City Public Service Co., 334 Mo. 672 , 66 S.W.2d 920, 927 (1933); State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 *829 (Mo. banc 2007); Lawrence v. Beverly Manor, WD 67920, 2008 WL 731561 , 3/18/2008 slip op. There seldom seems to be an easy answer to that question, and there has always been a measure of confusion about the answer in various contexts. See id. But here there is no need to address the issue.

The legislature created a specific condition for the right to sue for wrongful death. That condition is that, had the tort victim survived, that victim would have been able to bring a tort action. See Klein v. Abramson, 513 S.W.2d 714, 717 (Mo.App.1974). There is no contention that the legislature lacks constitutional authority to place such a condition on the right to recover under the statute. The legislature created the cause of action for wrongful death in the first place. See Glick v. Ballentine Produce, Inc., 396 S.W.2d 609, 614 (Mo.1965). “The legislature created the right of action where none existed before, and it may condition the right as it sees fit.” Id. at 615 . The statutory purposes are served if the tort victim survives long enough to bring and resolve a claim; and they are also served if the tort victim dies from the injury and the survivors bring the claims.

Had Ms. Smith survived, she could not have dismissed with prejudice her claims in federal court and proceeded to file a new suit in state court asserting claims that had been adjudicated against her. Accordingly, absent some kind of enforceable agreement, her surviving family members could not do so either.

If the majority’s interpretation becomes law rather than arguably dictum, it will interfere with the legislative judgment. Not only does such a view threaten to place tort defendants in a difficult position procedurally, but it could have adverse effects on the rights of the tort victim. That is so because it could hinder the right of the injured tort victim to control her own cause of action — her own property. For example, under the majority’s interpretation, if a hypothetical tort victim wished to settle her injury claim for, say, $500,000, no reasonable attorney representing the defendant tortfeasor would allow payment of such a sum without first obtaining a covenant not-to-sue from all of the victim’s family members who eventually could potentially bring an action under 537.080. Under the ruling sought by the Smith family and proposed by the majority in this case, if the victim’s family members are not happy with a proposed settlement, or if they were to insist on having “a piece of the settlement” as a condition of signing a covenant not-to-sue, they would effectively defeat the right of the injured person to control her own cause of action. They could do this simply by withholding their consent.

For all the foregoing reasons, though I now hold no brief for the notion that the claims of Barbara Smith’s survivors in this case are necessarily procedurally barred, 4 I disagree with the majority’s statutory analysis.

II

Along with my complaints about the statutory analysis of the majority, I dissent from the majority’s ruling that the failure-to-warn claim was submissible. This issue may well be the more significant reason to write separately.

The plaintiffs failed to make a submissi-ble case on causation. My colleagues mistakenly apply the presumption that Mrs. Smith would have heeded a warning, pre *830 sumably a package warning, if she had been given one prior to 1969.

From 1966 to 1969, every package of cigarettes warned generally that smoking “may be hazardous to your health.” In 1969, federal legislation pre-empted claims and warning requirements with more specific warnings. Mrs. Smith specifically testified in her deposition that she was not interested in health research related to cigarettes, and did not pay attention to such research. She enjoyed smoking. She did not stop smoking until she was unable to keep smoking due to pneumonia resulting in part from an advanced case of emphysema. Her doctor instructed her to stop smoking, and she never took it up again. That was in 1990.

There is absolutely no testimony in the record by Mrs. Smith that if she had been given a warning prior to 1969, it would have caused her to stop then or anytime before the time she did stop. She testified she could not think of anything that she could have been told prior to 1990 that would have convinced her to stop smoking sooner. Indeed, she ignored all warnings until her illness and her doctor brought the reality of the situation home to her-in 1990. The federal district court found that the record “conclusively” demonstrated that Mrs. Smith made no effort to alter her behavior when in the prior action that, as a matter of law, no reasonable jury could find a causal relation between the inadequate warnings prior to 1969 and Mrs. Smith’s injuries

With regard to the failure-to-warn claim, the court stated:

The fatal flaw in Plaintiffs [failure-to-warn] claim is that the record demonstrates that no jury could conclude inadequate warnings prior to 1969 caused Plaintiffs injuries ... [TJhe record conclusively demonstrates that Plaintiff made no effort to alter her behavior when presented with [the 1969 Surgeon General’s] warning. Consequently, no reasonable juror could conclude that a warning offered earlier than 1969 would have altered Plaintiffs behavior ... [CJonsequently, the lack of a warning did not cause Plaintiff to smoke cigarettes. Defendant [Brown & Williamson Tobacco Corporation] is entitled to judgment on Count II.

The majority notes that the federal court findings in the prior case are neither binding nor authoritative here in this case. While that is true, it must be remembered that the record of Mrs. Smith’s testimony in the federal court depositions was the same as the record in the court below. Because she was deceased, there was nothing that could be added to her testimony. I believe the federal court ruling granting summary judgment on the failure-to-warn claim was palpably correct in its view of the evidence and the legal effect thereof.

The law allows, in certain circumstances, a presumption that a warning would have been heeded if given. See, e.g., Tune v. Synergy Gas., 883 S.W.2d 10 (Mo. banc 1994) (no warning as to the risk of overfilling a propane cylinder, which resulted in an explosion). The application of the presumption must make sense in context. See, e.g., Estate of White v. R.J. Reynolds Tobacco Co., 109 F.Supp.2d 424, 432-33 (D.Md.2000); Waterhouse v. R.J. Reynolds Tobacco co., 162 Fed.Appx. 231, 234-35 (4th Cir.2006); Viguers v. Philip Morris USA, Inc., 837 A.2d 534, 537-38 (Pa.2003) (tobacco cases). Careful analysis must be applied in deciding whether the presumption can be appropriately applied in a tobacco case. See Waterhouse, 162 Fed.Appx. at 235 .

There is no sensible reason to apply such a presumption in a tobacco case where the focus is on failure-to-wam be *831 fore 1969, especially when the sworn testimony of the smoker conclusively defeats the notion that a warning would have had any effect. White, 109 F.Supp.2d at 435 . The testimony here demonstrated absolutely that no warning prior to 1969 would have been effective.

Of course, warnings after 1969 clearly were not effective. No package warnings were ever effective with Mrs. Smith, nor were any other warnings or research studies of any kind, until it was too late to save Mrs. Smith from the effects of all those years of ignoring warnings. Mrs. Smith never heeded a warning until her physician, after she was already quite sick, warned her that she had no choice. By that time, she had already ceased smoking due to the pneumonia. By then the irreversible damage was done. Amazingly, the majority considers the fact that she later heeded a personal warning from her physician to constitute evidence that she would have heeded a warning on a package earlier. The majority completely ignores the difference in the context of the warnings. As a result, the majority has re-written the law of submissibility. It is not our duty to allow the jury to decide issues in cases that are not submissible. The federal court had it right. For these reasons, I disagree with the majority’s ruling on the submissibility of the failure-to-warn claim.

Conclusion

I believe the majority’s ruling on the submissibility of the failure-to-warn case was contrary to sound principles of law. I also deem the statutory analysis of section 537.080 to be both unnecessary and erroneous to the extent that it purports to hold that the adjudication of a claim brought by a tort victim does not bar a subsequent death claim by the victim’s survivors under 537.080. I therefore respectfully dissent from those aspects of the court’s opinion.

. The facts concerning this agreement were unknown to this court until the parties filed supplemental appendices in the Supreme Court after the case was initially transferred. The parties do not agree as to the meaning and extent of application of the agreed order. One possible interpretation and application would be that the parties agreed that the claims that survived summary judgment motions could be prosecuted as death claims. For that reason, without further clarification, I cannot maintain, as I did at first, that all death claims were procedurally barred. However, my disagreement with the majority’s statutory analysis, which at this point would seem unnecessary, remains.

. If “death had not ensued,” there would have been no personal representative and no survivorship claim under 537.020. Mrs. Smith would have pursued her claim to con-elusion, and the personal representative would not have been faced with making a choice between the survivorship claim and the death claim.

. In Simmons, the Supreme Court of Arkansas determined that under the Arkansas statute, which was identical to the Missouri statute, any claim that the decedent had settled or reduced to judgment would bar a death claim by survivors. Id. at 4. See also Kessinger v. Grefco, Inc., 251 Ill.App.3d 980 , 191 IIl.Dec. 356, 623 N.E.2d 946, 951 (1993) ("vast majority of other jurisdictions” reach same result where statute is phrased "if death had not ensued”).

. The undersigned earlier exercised discretion, as a dissenting judge, to transfer this case to the Missouri Supreme Court. The case was retransferred to this court after briefing and argument in the Supreme Court.