Tompkin v. Philip Morris USA, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Tompkin v. Philip Nos. 02-3267/3309
ELECTRONIC CITATION: 2004 FED App. 0091P (6th Cir.) Morris, Inc., et al.
File Name: 04a0091p.06
Before: SUHRHEINRICH, COLE, and ROGERS, Circuit
Judges.
UNITED STATES COURT OF APPEALS
_________________
FOR THE SIXTH CIRCUIT
_________________ COUNSEL
JOCELYN TOMPKIN , X ARGUED: A. Russell Smith, A. RUSSELL SMITH LAW
Administratrix with will - OFFICES, Akron, Ohio, for Appellant. Walter L. Cofer,
- SHOOK, HARDY & BACON, Kansas City, Missouri, for
annexed of the Estate of Appellees. ON BRIEF: A. Russell Smith, A. RUSSELL
- Nos. 02-3267/3309
David Tompkin, deceased, - SMITH LAW OFFICES, Akron, Ohio, for Appellant. Walter
Plaintiff-Appellant/ > L. Cofer, Craig Proctor, SHOOK, HARDY & BACON,
,
Cross-Appellee, - Kansas City, Missouri, Mary M. Bittence, Diane P. Chapman,
BAKER & HOSTETLER, Cleveland, Ohio, Kenneth J.
- Walsh, Tyler L. Mathews, MCDONALD HOPKINS,
v. - Cleveland, Ohio, Patrick M. McLaughlin, Colin R. Jennings,
- MCLAUGHLIN & MCCAFFREY, Cleveland, Ohio, James
PHILIP MORRIS USA, INC., - E. Milliman, Benjamin S. Shively, MIDDLETON &
-
formerly known as PHILIP REUTLINGER, Louisville, Kentucky, Michael J. Suffern,
-
MORRIS, INC.; LIGGETT DINSMORE & SHOHL, Cincinnati, Ohio, for Appellees.
-
GROUP, INC.; LORILLARD - _________________
TOBACCO COMPANY ; THE -
AMERICAN TOBACCO - OPINION
COMPANY , - _________________
-
Defendants-Appellees/ -
ROGERS, Circuit Judge. Plaintiff Jocelyn Tompkin sued
Cross-Appellants. - the defendant tobacco companies, alleging that her husband,
N David Tompkin, died as a result of smoking cigarettes sold by
Appeal from the United States District Court the defendants.1 Tompkin asserted statutory and common
for the Northern District of Ohio at Akron. law products liability claims. After this court reversed the
No. 94-01302—David D. Dowd, Jr., Senior District Judge.
1
Argued: September 19, 2003 To mpk in sued both in her ind ividual capacity and as executrix of
her husband’s estate. The original defendants were Philip Morris, Inc.,
Decided and Filed: March 30, 2004 Liggett Group, Inc., Lorillard To bacco C omp any, The American Tobacco
Comp any, and Lorillard, Inc. Tompkin voluntarily dismissed her case
against Lorillard, Inc.
1
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district court’s grant of summary judgment in favor of the 1959-1961 1.5 packs of Herbert Tareyton cigarettes
defendants, the case proceeded to trial. A jury found for the per day
defendants, and Tompkin now appeals.
1961-1964 Between 2 and 3 packs of Kent cigarettes
Tompkin raises three issues on appeal. Specifically, she per day
claims that the district court erred by (1) admitting “surprise”
testimony from a defense expert that there was an 1964-1965 Between 2 and 3 packs of Lark cigarettes
“association” between Mr. Tompkin’s asbestos exposure and per day.2
an elevated risk of lung cancer, (2) excluding certain evidence
that she proffered (in particular, evidence concerning research Mr. Tompkin was exposed to asbestos and other pollutants
and public-relations groups associated with the tobacco in the course of his career. After graduating from high school
industry, evidence concerning non-party tobacco companies, in 1952, he worked at Stalwart Rubber Company in the curing
evidence from prior tobacco-related proceedings, and room. From 1953 to 1957, he worked as a bricklayer
evidence concerning the defendants’ conduct after the date apprentice, and from 1957 to 1984, he worked as a bricklayer.
that her husband quit smoking), and (3) refusing to charge the In 1984, he started a construction company. During this
jury on her “consumer expectations” claim under the Ohio work, he was “heavily exposed” to asbestos, and he was
Products Liability Act. Because Tompkin has not shown that exposed to brick dust, cement dust, mortar, lime, and rubber-
she was prejudiced by any of these alleged errors, we affirm curing effluvia. Finally, Mr. Tompkin had a family history of
the judgment of the district court. cancer.
BACKGROUND On June 26, 1992, Mr. Tompkin was diagnosed with lung
cancer. He died on February 12, 1996, at the age of 61.
1. David Tompkin’s History of Smoking and Lung Cancer
2. Tompkin’s Lawsuit and the Trial
David Tompkin began smoking in 1950, at the age of
sixteen, and he quit in 1965, at the age of thirty-one. His On June 24, 1994, Tompkin and her husband, then still
smoking history was as follows: alive, filed suit against the defendants in the United States
District Court for the Northern District of Ohio. Tompkin
Year Amount and Brand was substituted for her husband, as administratrix of his
estate, after his death. In her amended complaint, Tompkin
1950-1951 4 to 6 Old Gold cigarettes per day asserted the following claims: (1) strict liability; (2)
negligent, willful and wanton misconduct; (3) fraud and
1951-1954 4 to 6 Philip Morris cigarettes per day
1954-1957 6 to 8 Pall Mall cigarettes per day 2
During the relevant time period, The American Tob acco Com pany
made Pall Mall and Herbert Tareyton cigarettes, Liggett Group, Inc. made
1957-1959 10 Chesterfield cigarettes per day Lark and Chesterfield cigarettes, Lorillard Tobacco C ompany mad e Old
Go ld and K ent cigarettes, and Philip Mo rris, of course, mad e Philip
Morris cigarettes.
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misrepresentation; (4) strict liability for misrepresentation; (5) to instruct the jury on Tompkin’s “consumer expectations”
express warranty; (6) implied warranty; (7) conspiracy and claim, reasoning that “there was no testimony” to support the
concerted action; and (8) derivative claims for wrongful death claim.
and loss of consortium.
At trial, Tompkin presented fourteen witnesses, including
On August 3, 1998, the district court granted summary family and close friends of her husband. Tompkin and two of
judgment in favor of the defendants. It held that Tompkin’s her daughters testified about their relationships with
first five claims were governed by the Ohio Product Mr. Tompkin and about the effect of his cancer on him and
Liabilities Act (“OPLA”) and that OPLA’s “common his family. Similarly, Mr. Tompkin’s business partner, and
knowledge” doctrine—which bars claims for damages from long-time coworker, testified about Mr. Tompkin’s work and
risks which are “common knowledge”—applied to these his smoking habits. Finally, in a videotaped deposition,
claims. Tompkin v. Am. Brands, Inc., 10 F. Supp. 2d 895, Mr. Tompkin testified about his history of smoking, his (lack
899-905 (N.D. Ohio 1998). It also held that OPLA of) awareness of the dangers of smoking, his medical history,
preempted breach of implied warranty claims and that his history of employment, and the impact of his cancer on his
Tompkin failed to establish that her husband relied on any personal and professional life.
statements by the defendants, as required to sustain her fraud
and conspiracy claims. Id. at 900, 909-10. Finally, it held Tompkin also presented testimony from the physicians who
that, by definition, Tompkin’s derivative claims failed when treated her husband. Mr. Tompkin’s family physician, his
the underlying claims failed. Id. at 911. two oncologists, and his surgeon testified about the diagnosis
and treatment of his lung cancer. Additionally, his oncologist
On July 24, 2000, this court reversed, in part, the district opined, as the treating physician, not as an expert witness,
court’s grant of summary judgment. We concluded that that cigarette smoking caused Mr. Tompkin’s lung cancer.
Tompkin had established a genuine issue of material fact on
the extent of “common knowledge” of the nexus between Tompkin also presented expert testimony on her “failure to
smoking and lung cancer, and we reversed the grant of warn” claim, the defendants’ “common knowledge” defense,
summary judgment on her OPLA claims. Tompkin v. Am. and the cause of Mr. Tompkin’s cancer. Dr. Alan Blum, a
Brands, 219 F.3d 566, 571-75 (6th Cir. 2000). Additionally, professor of family medicine at the University of Alabama
we reversed the district court’s holding that OPLA preempted School of Medicine, Tuscaloosa branch, testified in support
Tompkin’s breach of implied warranty claim. Id. at 576. of Tompkin’s failure to warn claim. A self-styled historian,
However, we affirmed the district court’s holding that OPLA he traced the history of medical literature on the connection
preempted her negligent, willful and wanton misconduct between smoking and lung cancer. He concluded that by
claim. Id. at 575. 1939 “the case was closed that smoking was the leading cause
of lung cancer.” Based on this conclusion, he opined that (1)
The trial commenced on September 25, 2001, and the defendants “knew in 1939, or in the exercise of reasonable
comprised approximately seven days of testimony. At trial, care should have known in 1939, about a risk that was
Tompkin advanced a “failure to warn” claim under OPLA, a associated with their cigarettes and lung cancer,” and (2) the
“consumer expectations” claim under OPLA, and a breach of defendants “should have issued warnings or instructions in
implied warranty claim. However, the district court refused 1939 as to the risks of smoking tobacco, particularly
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cigarettes, and insofar as its causing lung cancer is Dr. David Sidransky, the Director of Head, Neck, and
concerned.” Cancer Research at Johns Hopkins University, also testified
about the cause of Mr. Tompkin’s cancer. Sidransky
Tom Smith, the director of the general social survey at the performed a “Loss of Heterozygosity” analysis (an “LOH”
National Opinion Research Center at the University of analysis) on tissue samples from Mr. Tompkin. He explained
Chicago, testified in response to the defendants’ common that chromosomal changes occur in cancerous cells (including
knowledge defense. He reviewed polling conducted between the loss of chromosomal arms that contain growth
1950 and 1965 on the connection between smoking and lung suppressing genes) and that certain of these changes occur
cancer. In particular, he described six Gallup polls which, much more frequently in cancer victims who have smoked
averaged together, showed that only 45% of the respondents than in cancer victims who have not smoked. Applying LOH
believed that smoking caused lung cancer. Based on this analysis, he determined that many of these chromosomal
investigation, he opined that “the ordinary person with changes associated with smoking had occurred in cancer cells
ordinary knowledge common to the community” did not from Mr. Tompkin. Based on this finding, he opined that
recognize “the nature and the extent of the link between “smoking was a major contribution to [Mr. Tompkin’s] lung
smoking cigarettes and lung cancer between the years 1950 cancer.”
and 1965.” He explained that “based on the particular data
here from Gallup as well as other data we’ve looked at about Finally, Dr. John Burke, a retired professor of economics,
what causes cancer and people’s beliefs about what harms testified about Mr. Tompkin’s loss of future earning capacity.
come from smoking, the data clearly indicates that people did
not make a strong link in that period between smoking and The defendants presented four witnesses, all of whom were
lung cancer.” experts. Dr. Joan Hoff, a professor of history at Ohio
University, testified in support of the defendants’ common
Dr. Joseph Tomashefski, a pathologist, testified about the knowledge defense. At the request of defense counsel, she
cause of Mr. Tompkin’s cancer. He testified that, in had researched discussions of smoking and lung cancer in
connection with the autopsy of Mr. Tompkin, he reviewed national magazines, regional newspapers, legislative
Mr. Tompkin’s history of smoking and ordered an asbestos materials, and educational materials during the period from
fiber burden test on tissue samples, which revealed “a high 1950 to 1965 to determine “commonly held attitudes or
load of asbestos fibers in [Mr. Tompkin’s] lungs.” Based on common knowledge or common information available to the
this information, he concluded that Mr. Tompkin’s cancer average person about the link between lung cancer and
was “due to the combined effect of his cigarette smoking and cigarette smoking.” Based on her research, she opined that
his exposure to asbestos.” He explained that “asbestos “the link between cigarette smoking and lung cancer was
interacts with cigarette smoking by a process that we call common knowledge” in the United States and, in particular,
synergy” whereby “they have an effect which is beyond an in Ohio between 1950 and 1965.
additive effect of each of their potencies.” He also testified
that asbestos was “a relatively weak carcinogen,” and that he The remaining defense witnesses concentrated on the
had never seen a case of lung cancer involving asbestos alone proximate cause issue. Dr. David Parkinson, a professor of
without any history of smoking. medicine at the State University of New York at Stony Brook
and Director of the Long Island Occupational and
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Environmental Health Center, testified about Mr. Tompkin’s asbestos exposure to the incidence of the disease in the non-
exposure to various carcinogens. He asserted that a smoker smoking “cohort” and the “cohort” without asbestos
can reduce his risk of lung cancer by quitting smoking, but exposure. Bradley explained that a relative risk of 1.0 is the
that “asbestos is very resistant to elimination by the body, and baseline—there is no increased, or decreased, risk from the
it is not possible to cut down the risk from cumulative exposure—and that the relative risk must be at least 2.0 to
asbestos exposure.” Based on his review of Mr. Tompkin’s support a conclusion that the exposure is “associated” with
deposition and medical records, he opined that Mr. Tompkin the disease. He further explained that this method of analysis
was likely exposed to asbestos and other carcinogens while establishes only a statistical “association”; it does not
working in the curing department at Stallworth Rubber establish individual causation.
Company and while working as a bricklayer on certain
construction sites. He further opined that “the most Bradley concluded that Mr. Tompkin’s cancer was not
significant exposure that induced Mr. Tompkin’s lung cancer “associated” with smoking but was “associated” with asbestos
was his asbestos exposure” and that, “because of the small exposure. He determined that the relative risk from smoking
amount of cigarette smoking, and the length of time that was 1.59, and, based on this figure, he opined that
passed after he had stopped smoking,” smoking was not a Mr. Tompkin’s “smoking history was not associated with an
proximate cause of his cancer. increased risk of developing lung cancer.” Similarly, he
determined that the relative risk of smoking to individuals
Dr. Edwin Bradley, a biostatistician, testified about the with asbestos exposure was 1.56, and, based on this figure, he
epidemiological association between lung cancer and Mr. opined that Mr. Tompkin’s smoking did not add to his risk of
Tompkin’s asbestos exposure and smoking. Using data developing lung cancer “[a]bove that risk that he would have
collected by the American Cancer Society, he compared the had from asbestos exposure alone.”3 Conversely, he
incidence of lung cancer in a “cohort” of individuals with determined that the relative risk from asbestos exposure was
smoking histories similar to Mr. Tompkin to the incidence of between 2.65 and 5.91,4 and he opined that there was “an
lung cancer in a “cohort” of individuals with no history of
smoking. Using this same data, he also compared the
incidence of lung cancer in a “cohort” of individuals with 3
Bradley further testified that smoking and asbestos exposure had an
smoking histories and asbestos exposure similar to “additive” effect— meaning that an individual’s risk of disease is simply
Mr. Tompkin with a “cohort” of individuals with similar the sum of the risks from the respective expo sures— but no t a
asbestos exposure but who never smoked. Finally, using the “multiplicative” or “synergistic” effect— meaning that the exposures act
“together to make it worse than it would be if it was exposed to either one
same data, he compared the incidence of lung cancer in a or the sum of the 2.”
“cohort” of individuals with smoking histories and asbestos
exposure similar to Mr. Tompkin with the incidence of lung 4
He was unable to offer a precise figure because the extent of Mr.
cancer in a “cohort” of individuals with no asbestos exposure. To mpk in’s asbestos exposure was not known. 2.65 represented the
relative risk (to non-smokers) of any asbestos exposure, as calculated by
He then calculated the “relative risk” of lung cancer from Bradley using the American Cancer Society data . 5.91 represented the
Mr. Tompkin’s level of smoking and asbestos exposure, relative risk of lung cancer from a level o f asbestos exp osure sufficient to
cause asbestosis, a figure derived from a published study. Bradley
meaning the ratio of the incidence of the disease in the testified that, because Mr. Tompkin had an asbestos fiber burden
“cohorts” with Mr. Tompkin’s smoking history and/or consistent with asbestosis, “his relative risk in my opinion would be
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association between the exposure of the type to asbestos that October 22, 2001, Tompkin moved for a new trial, arguing
Mr. Tompkin had [and] an elevated risk of developing lung that the district court had erred by (1) permitting “surprise”
cancer.” testimony from Dr. Bradley, (2) excluding evidence
concerning organizations affiliated with the tobacco industry,
Tompkin objected to Bradley’s testimony concerning the (3) excluding evidence concerning non-party tobacco
relative risk from asbestos exposure, and to the use of companies, (4) excluding evidence from prior tobacco-related
demonstrative exhibits in connection with this testimony, on cases, (5) excluding evidence concerning punitive damages
the ground that Bradley had not disclosed this information in and failing to charge the jury on punitive damages, (6)
his expert report. The district court overruled Tompkin’s excluding evidence concerning post-1965 activities of the
objection. defendants, and (7) failing to charge the jury on Tompkin’s
consumer expectations theory under OPLA.
Finally, Dr. Peter McCue, the chief of anatomic pathology
and a professor of pathology at Thomas Jefferson University On January 30, 2002, the district court denied Tompkin’s
Hospital in Philadelphia, testified about his examination of motion for a new trial. The court concluded that it had erred
tissue samples from Mr. Tompkin. He testified that he did by failing to sustain Tompkin’s timely objections to (1)
not detect any of the normal smoking-related changes, such Dr. Bradley’s testimony that asbestos was “associated” with
as damage to the bronchial epithelium, pigment-laden Mr. Tompkin’s cancer because, the court determined, the
macrophages, and mucous lining hyperplasia, in Mr. testimony directly conflicted with Dr. Bradley’s statement in
Tompkin’s pathology specimens.5 Conversely, he testified his expert report that “it is not possible to determine to a
that he did detect asbestos fibers, quartz dust, and mineral reasonable degree of scientific certainty which of the risk
fibers, as well as asbestos-induced disease process, in the factors, smoking or asbestos exposure (or other risk factors),
specimens. Based on this analysis, he opined that Mr. contributed to Mr. Tompkin’s lung cancer,” and (2) the
Tompkin’s cancer “most likely resulted from his occupational introduction of exhibits—specifically, three bar graphs that
exposure to silicates and asbestos” and that his examination illustrated Dr. Bradley’s testimony concerning the relative
revealed “no pathological or biochemical evidence . . . that risk of lung cancer associated with Mr. Tompkin’s asbestos
showed that he had an effect from cigarette smoking.” exposure—which were not identified in Dr. Bradley’s expert
report and which contained information not disclosed in the
The jury found for the defendants, and on October 9, 2001, expert report. However, the court concluded that its errors
judgment was entered in favor of the defendants. On did not justify a new trial, reasoning that the errors were not
prejudicial as Dr. McCue’s testimony “was far more
devastating than Dr. Bradley’s testimony.” The court’s
somewhere between the 2.65 and 5.91 [sic], probably closer to the 5.91 memorandum opinion denying Tompkin’s new trial motion
level.” did not discuss Tompkin’s other arguments.
5
Additiona lly, he asserted that, after 15 to 20 years of non-smoking, On March 1, 2002, Tompkin filed a timely notice of appeal.
a former smoker’s risk of lung cancer returns “almost down to baseline or
down to a normal population.” He also noted that P53 and K-Ras studies
performed by Dr. Tomashefski, which test for genetic changes associated
with smo king, were negative.
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ANALYSIS 2. The District Court’s Admission of the “Surprise”
Testimony of Dr. Bradley
1. Standard of Review
The district court did not abuse its discretion in denying
This court reviews a district court’s denial of a motion for Tompkin’s motion for a new trial based on “surprise”
a new trial under an abuse of discretion standard. Tobin v. testimony by Dr. Edwin Bradley, a defense expert on the
Astra Pharm. Prods., Inc., 993 F.2d 528, 542 (6th Cir. 1993). causation issue. The district court properly concluded that
“Abuse of discretion is defined as a definite and firm Tompkin did not meet her burden of demonstrating prejudice
conviction that the trial court committed a clear error of from the admission of Bradley’s testimony.
judgment.” Id. (quoting Logan v. Dayton Hudson Corp., 865
F.2d 789, 790 (6th Cir. 1989)). A district court abuses its Tompkin argues that Bradley failed to disclose in his expert
discretion when it relies on clearly erroneous findings of fact, report his testimony that there was an “association” between
or when it improperly applies the law or uses an erroneous Mr.Tompkin’s level of asbestos exposure and lung cancer. In
legal standard. Romstadt v. Allstate Ins. Co., 59 F.3d 608, his expert report, Bradley wrote, in relevant part,
615 (6th Cir. 1995).
12. Epidemiology addresses whether a disease is
Moreover, a motion for a new trial will not be granted statistically associated with an exposure in a
unless the moving party suffered prejudice. Morales v. Am. population, not in individuals. The question of
Honda Motor Co., Inc., 151 F.3d 500, 514 (6th Cir. 1998); individual causation, sometimes referred to as
Erskine v. Consol. Rail Corp., 814 F.2d 266, 272 (6th Cir. specific causation, is beyond the domain of the
1987) (holding that a new trial will not be granted on the science of epidemiology. Even in populations, the
ground that surprise evidence was admitted unless the moving existence of a statistical association does not
party was prejudiced). “Even if a mistake has been made necessarily mean that two events are causally
regarding the admission or exclusion of evidence, a new trial related. Epidemiology provides information
will not be granted unless the evidence would have caused a relevant to reaching a conclusion regarding general
different outcome at trial.” Morales, 151 F.3d at 514. “The association, but cannot alone prove causation in an
burden of showing harmful prejudice rests on the party individual.
seeking the new trial.” Tobin, 993 F.2d at 541; see also
Erksine, 814 F.2d at 272 (“In order to prevail on his motion ***
for a new trial, plaintiff must show that he was prejudiced and
that failure to grant a new trial is inconsistent with substantial 14. Statistical associations between exposure and
justice.” (citation omitted)). disease (or mortality) from epidemiologic studies are
usually measure as relative risks (“RRs”) or odds
ratios (“ORs”). A relative risk is defined as the ratio
of the incidence of disease (or mortality) in the
exposed group to the incidence of disease (or
mortality) in the unexposed group. For example, if
the incidence of cancer among the exposed group is
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10 in 100 and the incidence among the unexposed that there is no statistical association between
group is 5 in 100, then the relative risk is 2.0 Mr. Tompkin’s smoking from 1950 to 1965 and an
(10/100 ÷ 5/100). . . . increased risk of death from lung cancer in 1996. It
is a general scientific principle that when no
*** statistically significant association is found between
an exposure and a disease, the question of causation
17. I regard relative risks below 2.0 as too weak to is moot.
support a conclusion that an exposure is associated
with a disease. ***
*** 39. I expect to opine to a reasonable degree of scientific
certainty that the epidemiological studies on
33. I have performed generally accepted statistical asbestos exposure and cigarette smoking do not
analyses of the data in this file addressing the establish that the best model for describing the
question of whether there is an increased risk of lung relative risks is multiplicative. . . .
cancer in the group of males (“cohort”) enrolled in
[a large epidemiological study conducted by the 40. I also examined the CPS-II data file to investigate
American Cancer Society called Cancer Prevention the association between asbestos exposure, smoking
Study II (“CPS-II”)] who had quit smoking between and lung cancer.
the ages of 26 and 34, had remained abstinent for
between 27 and 35 years, and had a smoking history 41. I have performed generally accepted statistical
of 17 to 48 pack-years before quitting. This analyses of the data in this file addressing the
smoking history is similar to that of Mr. Tompkin, question of whether there is an increased risk of lung
who smoked between 1950 and 1965, at which time cancer in the group of males (“cohort”) enrolled in
he quit. CPS-II who indicated on the CPS-II questionnaire
that they had been exposed to asbestos and had quit
34. . . . The comparison group consisted of males in the smoking for between 27 and 35 years. This
CPS-II study who had never smoked. smoking and asbestos exposure history is similar to
that of Mr. Tompkin.
35. Based on this analysis, I will testify that I could find
no statistically significant association for the CPS-II 42. . . . The comparison cohort consisted of males in the
cohort described in paragraph 33 above and an CPS-II study who indicated on the CPS-II
increased risk of lung cancer. I will also testify that questionnaire that they had been exposed to
the relative risk I calculated, in addition to not being asbestos, and had never smoked.
statistically significant, was less than 2.0.
Consequently, an attributable risk calculation shows 43. Based on this analysis, I will testify that I could find
that more probably than not, smoking is not related no statistically significant association for the CPS-II
to lung cancer for this cohort. Further, I will testify cohort described in paragraph 41 above and an
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increased risk of lung cancer. I will also testify that cohort of persons who never smoked but who were exposed
the relative risk I calculated, in addition to not being to asbestos against a cohort of persons who never smoked and
statistically significant, was less than 2.0. who were never exposed to asbestos—as 2.65. J.A. at 2374.
Consequently, an attributable risk calculation shows He further testified that the medical literature sets the relative
that more probably than not, smoking is not related risk of lung cancer for patients who have asbestosis, and thus
to lung cancer for this cohort. Further, I will testify have a high level of asbestos exposure, at 5.91. J.A. at 2376.
that even with consideration of his asbestos Thus, he concluded that Mr. Tompkin’s relative risk of
exposure, there is no statistical association between developing lung cancer from asbestos exposure was between
Mr. Tompkin’s smoking from 1950 to 1965 and an 2.65 and 5.91; and, as a pathological exam performed by Dr.
increased risk of death from lung cancer in 1996. It Tomashefski, one of the plaintiff’s experts, revealed a fiber
is a general scientific principle that when no burden in Mr. Tompkin’s lungs consistent with asbestosis, his
statistically significant association is found between relative risk was “probably closer to the 5.91 level.” J.A. at
an exposure and a disease, the question of causation 2375-77.
is moot.
In connection with this testimony, Bradley used three
44. Based on further analyses of the CPS-II data, I will exhibits, each titled “Analysis of Mr. Tompkin’s Risk
testify that the joint risk of asbestos exposure and Profile,” which illustrate his findings on Mr. Tompkin’s
smoking on the development of lung cancer is best relative risk of developing lung cancer from smoking and
described by an additive, not multiplicative, model. from asbestos exposure. The first exhibit was a bar graph
depicting Mr. Tompkin’s relative risk from smoking as 1.59,
45. I will also testify that it is not possible to determine a figure which the graph describes as “Not Statistically
to a reasonable degree of scientific certainty which Significant.” J.A. at 837. The second exhibit was a bar graph
of the risk factors, smoking or asbestos exposure (or depicting Mr. Tompkin’s relative risk from smoking as 1.59
other risk factors), contributed to Mr. Tompkin’s and his relative risk from asbestos as 2.65, figures which the
lung cancer, when the only available data are from graph describes as “Not Statistically Significant” and
epidemiological studies. The difficulties of “Statistically Significant,” respectively. J.A. at 838. The
disentangling the relationship among several factors third exhibit was a bar graph depicting Mr. Tompkin’s
while attempting to control for confounding have relative risk from smoking as 1.59, his relative risk from
been recognized in the scientific community. asbestos as 2.65, and his relative risk from asbestosis as 5.91,
figures which are labeled “Not Statistically Significant” and
J.A. at 756-61 (emphasis in original). “Statistically Significant,” respectively. J.A. at 839. In the
second and third exhibits, the bar representing Mr. Tompkin’s
At trial, Bradley opined that there was “an association relative risk from smoking is colored blue, and the bars
between the exposure of the type to asbestos that representing his relative risk from asbestos and asbestosis are
Mr. Tompkin had [and] an elevated risk of developing lung colored red. J.A. at 838-39.
cancer.” J.A. at 2379. He testified that, using the data in
CPS-II, he calculated the relative risk of developing lung During the trial, the district court overruled Tompkin’s
cancer due to asbestos exposure alone—i.e., he measured a objection to Bradley’s testimony concerning the relation
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between Mr. Tompkin’s exposure to asbestos and his lung Further, she asserts that she was prejudiced by this “surprise”
cancer. After the verdict, the district court denied Mr. testimony because her counsel were unable to prepare
Tompkin’s motion for a new trial, which motion contended, adequately for cross-examination of Bradley and were unable
in part, that Bradley had not disclosed in his expert report his to present responsive testimony, and because Bradley’s
testimony that Mr. Tompkin’s asbestos exposure gave him an testimony “dramatically bolstered defendants’ theory of
elevated risk of developing lung cancer. In denying the causation” (“essentially the only defense in the case”).
motion, the district court concluded that it had erred in Appellant’s Br. at 11, 13.
overruling Tompkin’s objection, as the defendants had
violated Federal Rule of Civil Procedure 26(a)(2)(B) by not The defendants counter that Bradley properly disclosed the
disclosing the exhibits and the related testimony in Bradley’s testimony in his expert report. They note that paragraph 36
report. However, the court further concluded that its error of the report states that Bradley “will testify about the
was not prejudicial, given the strength of the defendants’ epidemiological studies on asbestos exposure, cigarette
other witnesses. Specifically, the court found smoking and lung cancer,” and that paragraph 41 advised that
Bradley analyzed a cohort with a smoking and asbestos
the testimony of the defense witness, Dr. McCue, was history similar to that of Mr. Tompkin. J.A. at 760. They
well documented and supported by his examination of also argue that paragraph 45 is not inconsistent with
the slides of the decedent’s lung tissue and also Bradley’s testimony, explaining that paragraph 45 simply
supported by the negative findings of Dr. Tomashefski as states that an epidemiologist cannot offer an opinion as to
to the P53 and K-Ras genes. In the Court’s view, that which risk factor caused Mr. Tompkin’s cancer, and that
testimony, which followed Dr. Bradley’s testimony, was Bradley simply testified to a statistical association between
far more devastating than Dr. Bradley’s testimony about Mr. Tompkin’s cancer and asbestos exposure.
epidemiology associations.
The defendants argue, in the alternative, that any violation
J.A. at 874. of Rule 26(a) was not prejudicial. They contend that the
testimony was disclosed to Tompkin during Bradley’s
On appeal, Tompkin challenges the admission of Bradley’s deposition and in Bradley’s reliance materials. They also
testimony that Mr. Tompkin’s relative risk of developing contend that Tompkin’s was not harmed by the admission of
cancer from asbestos exposure was between 2.65 and 5.91 the testimony, given that Tompkin admitted that asbestos
and the use of the exhibits in connection with this testimony. contributed to her husband’s cancer and that two other
She contends that, as the district court concluded, the defense experts, Drs. McCue and Parkinson, testified that
defendants violated Federal Rule of Civil Procedure asbestos was a cause of Mr. Tompkin’s cancer.
26(a)(2)(B) by not disclosing this testimony and the exhibits
in Bradley’s expert report. She argues that this testimony was Rule 26(a) of the Federal Rules of Civil Procedure requires
directly inconsistent with Bradley’s report, which stated, an expert witness to provide a written reporting containing,
among other things, that “it is not possible to determine to a inter alia, (1) “a complete statement of all opinions to be
reasonable degree of scientific certainty which of the risk expressed and the basis and reasons therefor,” and (2) “any
factors, smoking or asbestos exposure (or other risk factors), exhibits to be used as a summary of or support for the
contributed to Mr. Tompkin’s lung cancer.” J.A. at 761. opinions.” Fed. R. Civ. P. 26(a)(2)(B). Rule 37 provides that
Nos. 02-3267/3309 Tompkin v. Philip 21 22 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al.
“[a] party that without substantial justification fails to disclose Bradley will testify about the increased risk of lung cancer
information required by Rule 26(a) . . . is not, unless such from asbestos exposure.7
failure is harmless, permitted to use as evidence at trial . . .
any witness or information not so disclosed.” Fed. R. Civ. P. However, Tompkin has not shown that the district court’s
37(c)(1). Rule 37 further provides that “[i]n addition to or in finding that she was not prejudiced by the admission of the
lieu of this sanction, the court . . . may impose other testimony was clearly erroneous. Other defense experts
appropriate sanctions.” Id. testified about the connection between Mr. Tompkin’s cancer
and his asbestos exposure—in terms of specific causation
Clearly, the defendants failed to comply with Federal Rule rather than mere “associations.” Dr. Parkinson, a physician
of Civil Procedure 26(a). It is true the testimony in question specializing in occupational medicine,8 opined that “the most
was arguably consistent with paragraph 45 of Bradley’s significant exposure that induced Mr. Tompkin’s lung cancer
report. On one reading, paragraph 45 states that it is not was his asbestos exposure over the many years he was
possible to determine from epidemiological studies whether exposed to asbestos” and that smoking was not a proximate
smoking or asbestos was the medical cause of Mr. Tompkin’s cause of Mr. Tompkin’s lung cancer. J.A. at 2297, 2306.
cancer, whereas, in the challenged testimony, Bradley opined Dr. Peter McCue, a surgical pathologist, testified that he
that there was a statistical association between lung cancer examined tissue samples from Mr. Tompkin’s lungs and
and Mr. Tompkin’s level of asbestos exposure. In any event, found evidence of damage from exposure to asbestos and
the report does not state that Bradley will testify that Mr. mineral fibers but no evidence of damage from smoking. J.A.
Tompkin had an elevated risk of developing lung cancer due at 2520-22, 2527, 2531-34. He opined that Mr. Tompkin’s
to his exposure to asbestos (let alone that his relative risk was
between 2.65 and 5.91), and Rule 26(a) would require such a
statement.6 Paragraphs 36 through 43, which the defendants 7
argue disclose the testimony, merely state (1) in general The defendants have not cited any authority supporting their
terms, that Bradley will testify about the association between argument that, by turning over materials supporting his testimony as part
of his Rule 26(a )(2)(A) reliance materials (i.e., the “data or other
asbestos exposure, cigarette smoking, and lung cancer, (2) information considered by the witness in forming the opinions”), Bradley
that Bradley will testify that an additive, rather than a was relieved of the additional obligation under Rule 26(a)(2)(A) to
multiplicative, model best describes the joint risk of smoking provide “a complete statement of all opinions to be expressed.” Nor,
and asbestos exposure, and (3) that Bradley will testify that desp ite their insistence to the contra ry, have the defendants identified any
the relative risk of Mr. Tompkin’s level of smoking to deposition testimony in which Bradley reveals that he will testify that Mr.
To mpk in had an increased risk of develo ping lung cancer due to his
someone who has been exposed to asbestos is less than 2.0. asbestos exposure.
J.A. at 760-61. None of this information alerts the reader that
8
Dr. Parkinson is a professor of medicine at the State University of
New York and the director of the Long Island Occupational and
Environmental Health Center. J.A. at 2278. He testified that he helped
write the State of California’s asbestos exposure standard, that he runs a
program for union workers in the building trades who have been exposed
6
to asbestos, and that he has “a very good working knowledge of the
Nor does Brad ley’s expert report list the exhibits, as Rule 26 (a) also epidemiology of asbestos-related disease.” J.A. at 2278, 2283, 2285,
requires. Fed . R. Civ. P. 26 (a)(2)(B). 2289
Nos. 02-3267/3309 Tompkin v. Philip 23 24 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al.
cancer “most likely resulted from occupational exposure to not have “a definite and firm conviction that the trial court
silicates and asbestos” and that smoking was not a proximate committed a clear error of judgment.” Tobin, 993 F.2d at 542
cause of Mr. Tompkin’s cancer.9 J.A. at 2540. (citation omitted).
Moreover, Tompkin conceded that asbestos contributed to 3. The District Court’s Exclusion of Evidence Proffered by
her husband’s cancer. See J.A. at 1902 (testimony of Tompkin
plaintiff’s expert, Dr. Joseph Tomashefski, a pathologist, that
“asbestos interacted with the cigarette smoke as co- a. Introduction
carcinogens to cause his lung cancer”); J.A. at 1886
(testimony of Tomashefski that Mr. Tompkin’s cancer was Tompkin argues that the district court erred by excluding
“due to the combined effect of his cigarette smoking and his four categories of evidence: evidence concerning research
exposure to asbestos”); J.A. at 1183-84 (opening argument and public relations organizations affiliated with the tobacco
that “tobacco and asbestos caused [Mr. Tompkin’s] lung industry; evidence concerning non-party tobacco companies;
cancer”).10 deposition testimony from other tobacco-related lawsuits; and
post-1965 evidence. However, Tompkin has not explained
In denying Tompkin’s motion for a new trial, the district the relevance of any specific piece of evidence, either making
court concluded that McCue’s testimony was “far more a generalized assertion that a category of evidence is relevant
devastating than Dr. Bradley’s testimony about epidemiology and leaving the court to sift through hundreds of pages of
associations.” J.A. at 874. We have not found anything in documents or thousands of pages of deposition testimony in
the record or the parties’ briefs that undermines this an effort to divine the relevance of particular items, or failing
conclusion, and we cannot say that the exclusion of the to identify the specific pieces of evidence excluded by the
testimony “would have caused a different outcome at trial.” district court at all. Moreover, Tompkin has made no effort
Morales, 151 F.3d at 514 (citation omitted). In sum, we do to explain how she was prejudiced by the exclusion of the
evidence. Consequently, we cannot conclude that the district
court abused its discretion in excluding the evidence or that
9
The experts also testified that damage to the lungs from sm oking is the exclusion of the evidence was prejudicial.
reversible but damage from asbesto s is not. J.A. at 2283, 2291-92, 2523-
24. This court reviews a district court’s evidentiary rulings for
abuse of discretion, and a district court’s determination will
10
Additiona lly, Tompkin cross-examined Bradley about the be reversed only if the abuse of discretion caused more than
consistency of his testimony on asbestos with his report (J.A. at 2409-17), harmless error. Argentine v. United Steelworkers of Am., 287
and he raised the issue during interim argum ent. See J.A. at 2505 (“I have F.3d 476, 486 (6th Cir. 2002); Trepel v. Roadway Exp., Inc.,
to take his word for it, I couldn’t tell you if my life depended on it—o ne
of 69 articles. He doesn’t raise it in his rep ort, he d oesn’t say it in his
194 F.3d 708, 716 (6th Cir. 1999). “Broad discretion is given
deposition, he says it here.”) During closing argument, she accused the to district courts in determinations of admissibility based on
defendants of ambushing her with Bradley’s testimony. J.A. at 2793 considerations of relevance and prejudice, and those decisions
(“[W ]e come into the courtroom and, bam, up come those bo ards and up will not be lightly overturned.” United States v. Jackson-
come this new opinion [sic] that it was asbestos. So, I mean, the Randolph, 282 F.3d 369, 376 (6th Cir. 2002). As a leading
tobacco— the defendants are capable of playing pretty hard-nosed treatise observes, “[c]laims of error with regard to the
footb all.”).
Nos. 02-3267/3309 Tompkin v. Philip 25 26 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al.
admission or exclusion of evidence are prime candidates for Hill & Knowlton (“H & K”).11 On September 21, 2001, after
application of the harmless error rule.” 11 Charles Alan considering additional briefing by the parties, the district
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice court refused to overrule its original ruling. The district court
and Procedure § 2885 (2d ed. 1995). did not explain its rationale for excluding the evidence in
either order. On December 20, 2001, the district court denied
As defined by the Federal Rules of Evidence, relevant Tompkin’s motion for a new trial without discussing
evidence is “evidence having any tendency to make the Tompkin’s argument that it had erred by excluding evidence
existence of any fact that is of consequence to the concerning the tobacco industry groups.
determination of the action more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401. On appeal, Tompkin asserts, in broad terms, that evidence
All relevant evidence is admissible. Fed. R. Evid. 402. concerning CTR, TIRC, TI, and H & K was relevant.
However, Specifically, she contends that “the efforts of these groups are
highly relevant to the issues of common knowledge, as well
Although relevant, evidence may be excluded if its as to consumer expectations, failure to warn, and punitive
probative value is substantially outweighed by the danger damages,” apparently because these groups allegedly
of unfair prejudice, confusion of the issues, or misleading attempted to mislead the public about the dangers of cigarette
the jury, or by considerations of undue delay, waste of smoking. She points to eighty-four documents—including
time, or needless presentation of cumulative evidence. internal memoranda concerning the formation of, and the
activities of, TIRC and TI, press releases by TIRC, TI, and
Fed. R. Evid. 403. newsletters published by TI—as examples of evidence
b. Exclusion of Evidence Concerning Tobacco Industry
Groups
11
According to Tompkin, defendants The American T oba cco Co.,
Tompkin contends that the district court erred by excluding Lorillard Tob acco Co., and Philip M orris, Inc., as well as other tobacco
evidence concerning certain research and public relations comp anies, formed TIR C in Decemb er 1953 in response to medical
groups affiliated with the tobacco industry. However, research that linked cigarette smoking to lung cancer. Tompkin alleges
Tompkin has not shown that any specific document was that TIR C, and its successor, CT R, “claimed to b e independently
scientifically investigating whether there were health risks to smoking
relevant or that the exclusion of any specific document cigarettes” and “continued to claim th at further research needed to be
resulted in prejudice. done before smo king co uld be said to cause lung cancer . . . long after the
tobacco companies internally understood the true hazards.” App ellant’s
On August 2, 2001, the district court entered an order Br. at 18.
“tentatively” granting the defendants’ motion in limine to Also according to Tom pkin, the defendants, as well as other tobacco
exclude evidence or allegations concerning the Council for comp anies, formed TI in 1958 to serve as the industry’s “public relations
and lobbying arm.” Tompkin alleges that TI endeavored to “create a
Tobacco Research (“CTR”), the Tobacco Industry Research ‘contro versy’ about the health hazards of smo king cigarettes, and to create
Committee (“TIRC”), the Tobacco Institute, Inc. (“TI”), and doubt abo ut the link b etween smo king and can cer without expressly
denying it.” Id.
Finally, according to Tompkin, H & K, a public relations firm, was
involved in the forma tion of T IRC .
Nos. 02-3267/3309 Tompkin v. Philip 27 28 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al.
wrongfully excluded by the district court’s ruling. However, exclude evidence of or reference to conduct or documents of
she does not explain how any specific piece of evidence was non-party tobacco companies. On September 21, 2001, after
relevant or how the exclusion of any specific piece of considering additional briefing by the parties, the district
evidence inflicted prejudice. court refused to overrule its original ruling. The district court
did not explain its rationale for excluding the evidence in
Tompkin has not shown that she was prejudiced by the either order. On December 20, 2001, the district court denied
district court’s ruling. Before this court, Tompkin merely Tompkin’s motion for a new trial without discussing
asserts that this category of documents is relevant to an array Tompkin’s argument that it had erred by excluding
of issues, making no effort to demonstrate the relevance of evidencing concerning non-party tobacco companies.
particular documents or to explain how she was prejudiced by
the exclusion of particular documents. Without such On appeal, Tompkin argues that the district court erred by
information, we cannot say that the trial court committed a excluding evidence concerning non-party tobacco companies.
clear error of judgment or that Tompkin suffered prejudice.12 Speaking in the most general terms, she contends that this
evidence was relevant because evidence showing that other
c. Exclusion of Evidence Concerning Non-Party Tobacco tobacco companies knew of the dangers of smoking indicates
Companies that the defendants should have known of the dangers as well
(and, hence, should have warned consumers of the dangers).
The district court’s exclusion of evidence concerning non- She has not identified any specific piece of evidence that was
party tobacco companies does not constitute grounds for a excluded by the district court’s ruling.
new trial, as Tompkin has not demonstrated that the district
court improperly excluded any specific piece of evidence or Given Tompkin’s failure to direct the court to the specific
that the exclusion of any specific piece of evidence was pieces of evidence that she was prevented from introducing,
prejudicial. we cannot say that the district court committed reversible
error. It is impossible to determine whether the evidence that
On August 2, 2001, the district court entered an order Tompkin intended to present was relevant (or whether the
“tentatively” granting the defendants’ motion in limine to evidence should have been excluded under Federal Rule of
Evidence 403) without knowledge of the substance of the
testimony or documents. Likewise, it is impossible to say
12
Mo reover, although the district court granted the defendants’ that Tompkin was prejudiced by the exclusion of the evidence
motion in limine to exclude this category of evidence, it later ruled that simply on the basis of Tompkin’s generalized assertion that
the defendants had “opened the door” to this evidence. During To mpk in’s the evidence was “relevant.”
cross-examination of Dr. Hoff, the defendants’ expert on the common
knowledge issue, the d istrict court ruled that evidence relating to TIRC
and TI was no longer excluded, given that Dr. Hoff had shown “no
interest” in the public position of the tobacco companies regarding the
link between cigarette smoking and lung cancer when analyzing whether
the linkage was common knowledge. J.A. at 1618. Tompkin proceeded
to question Dr. Hoff about TIRC, TI, CTR, and H & K, even examining
Dr. Hoff about one of the press releases that Tompkin complains was
excluded by the district court’s initial ruling. J.A. at 1619-51.
Nos. 02-3267/3309 Tompkin v. Philip 29 30 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al.
d. Exclusion of Deposition Testimony from Other Spears, III, the former chairman and CEO of Lorillard
Proceedings Tobacco Co., that his company “would have kept selling
cigarettes as long as they were a legal product, regardless of
The district court’s exclusion of deposition testimony from whether there were several definitive studies showing
other proceedings does not constitute reversible error, as smoking causes lung cancer” (id. at 40); (7) testimony from
Tompkin has not established that she was prejudiced by the Carl G. Thompson, a former employee of H & K, that “TI’s
exclusion of the testimony. position with respect to tobacco and health was basically a
theme of ‘scientific controversy’” (id. at 42); (8) testimony
On appeal, Tompkin complains that she was not allowed to from William Kloepfer, an employee of TI starting in 1967,
present the following deposition testimony:13 (1) testimony about “the use of the ‘cigarette controversy’ since at least TI’s
from Robert Heimann, the former president and CEO of The inception in 1958" (id. at 43); and (9) testimony from Walker
American Tobacco Company, “regarding warnings” P. Merryman, a spokesman for TI, that one of TI’s purposes
(Appellant’s Reply Br. at 30); (2) testimony from Frederick was to convince the public that “we are vitally interested in
Panzer, an employee of TI starting in 1969, that the tobacco getting the facts that would provide answers to questions
industry had employed “a holding strategy” of “creating about smoking and health.” Id. at 44.
doubt about the health charge without actually denying it”
and “advocating the public’s right to smoke, without actually Assuming that this testimony was relevant (and not
urging them to take up the practice” (id. at 32); (3) testimony excludable under Federal Rule of Evidence 403),14 and also
from Bennett LeBow, who acquired ownership of Liggett assuming that the testimony was not inadmissible hearsay,15
Group, Inc. in the 1980s, that “the tobacco companies were all
lying regarding the defenses they were making including
cigarettes causing disease” (id. at 33); (4) testimony from 14
Irwin Tucker, an employee of a non-party tobacco company, The relevance of the excluded testimony is by no means clear.
that, at the December 1953 meeting where tobacco company To mpk in makes no effort to tie the testimony of particular individuals to
specific issues; instead, she simply announces at the outset of her
presidents created TIRC to respond to adverse publicity from argument that “[t]his testimony was relevant to the issues before the jury
medical research linking smoking to lung cancer, there was in this case.” Appellant’s Br. at 24. (There is an exception; she does
no discussion whether the tobacco companies should issue assert that “portions” of Heimann’s deposition relate to her failure to warn
warnings to smokers regarding the health risks (id. at 35-36); claim and the defendant’s com mon know ledge defense. Ap pellant’s
(5) testimony from Joseph F. Cullman, the former CEO of Rep ly Br. at 29-30.) Moreo ver, she has not identified the sp ecific
testimony that she alleges w as erro neously excluded . Thus, the court has
Philip Morris, Inc., that his company took the position that “it been left to review literally thousand s of pages of depo sition transcripts
had not been proved that cigarette smoking caused lung and to speculate which testimony purportedly relates to which issue(s),
cancer” and that the tobacco industry endeavored “to point even before turning to the relevanc y and Rule 403 issues.
out to the public a controversy about smoking and health
15
concerns” (id. at 39); (6) testimony from Alexander White To mpk in’s responses to the defendants’ hearsay objections are, at
times, barely even suppo rted. For examp le, she asserts that ce rtain
testimony is admissible pursuant to Federal Rule of Evidence 804(b)(1),
13
but does not direct the court to any evidence in the record supporting her
The depositions were taken in various other tobacco-related position that the declarant is “unavailable” or her position that the
lawsuits. defendants had “an opportunity and similar motive to develop the
Nos. 02-3267/3309 Tompkin v. Philip 31 32 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al.
Tompkin has not shown that she was prejudiced by the trial without discussing Tompkin’s argument that it had erred
exclusion of this testimony. She has not identified the by excluding post-1965 evidence.
specific testimony that she believes was erroneously
excluded, has not matched the testimony of specific On appeal, Tompkin rests on bald argument. Her
individuals to specific issues, and has not made any attempt discussion of this issue follows:
to explain how her case was prejudiced by the exclusion of
the testimony. Accordingly, we cannot conclude that the Post 1965 evidence is relevant and should not have been
evidence would have caused a different outcome at trial. In excluded since the factors to be considered in
re Air Crash Disaster, 86 F.3d 498, 526 (6th Cir. 1996).16 determining punitive damages as set forth above included
a number of items which necessarily involve post injury
e. Exclusion of Post-1965 Evidence activity. Defendants engaged in a continuing course of
deceitful conduct throughout the period Mr. Tompkin
The district court’s exclusion of post-1965 evidence does smoked and for many years thereafter. Evidence
not constitute reversible error, as Tompkin has not shown that regarding events subsequent to 1965 will explain
she was prejudiced by the exclusion of the evidence. defendants’ motives, intent and knowledge prior to 1966.
This relates to plaintiff’s failure to warn and consumer
On April 19, 2001, the district court entered an order expectation claims. And evidence of defendants’ post
granting, in part, the defendants’ motion to exclude post-1965 1965 routine practices of distorting the health risks of
evidence. It interpreted this court’s prior ruling to endorse the smoking is relevant and admissible under Evid. R. 406.
use of post-1965 evidence in support of Tompkin’s argument
that there was no “common knowledge” in 1965 of a direct Appellant’s Br. at 27-28.
link between cigarette smoking and lung cancer. However, it
ruled that any post-1965 evidence must relate to the “common With only this information before us, we are unable to say
knowledge” issue, and it specifically ruled that post-1965 that the district court abused its discretion in excluding post-
evidence was not relevant to the issue of punitive damages. 1965 evidence. To the extent that the evidence relates to
On August 2, 2001, the district court denied Tompkin’s punitive damages, any error was harmless as the jury did not
motion to reconsider its April 19 ruling. On December 20, reach the issue of damages. See Miller v. Caterpillar Tractor
2001, the district court denied Tompkin’s motion for a new Co., 697 F.2d 141, 145 (6th Cir. 1983) (holding that any error
in the admission of evidence relating to damages was
harmless as “the jury never reached the issue of damages and
testimony.” See Appellant’s Reply Br. at 44 (asserting, without
therefore the testimony could not have contributed to its
supporting citation, that Merryman has cancer and is too ill to travel); id. verdict of no cause of action”). To the extent that the
at 42 (stating only that Th omp son’s depo sition “was taken in a case evidence relates to her failure to warn and consumer
involving some of the d efendants in this ca se”); see also id. at 43 (failing expectations claims, Tompkin has not identified the excluded
to address the hearsay ob jection to K loepfer’s testimo ny). evidence nor explained how the evidence would have
16 illuminated the defendants’ “motive, intent and knowledge
Additiona lly, it appears that Tom pkin did not proffer any
deposition testimony from Cullman, Spears, Kloepfer, or Merryman, thus
waiving any right o f appeal. See Fed. R. Evid. 103(a)(2).
Nos. 02-3267/3309 Tompkin v. Philip 33 34 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al.
prior to 1966.”17 We therefore cannot conclude that the dangerous than an ordinary consumer would expect when
district court erred, much less that any error caused prejudice. used in an intended or reasonably foreseeable manner, (2) the
claimed defect was present when the product left the
4. The District Court’s Refusal to Instruct the Jury on manufacturer, and (3) the claimed defect proximately caused
Tompkin’s Consumer Expectations Theory the claimed injuries. Hisrich, 226 F.3d at 455. “‘[E]vidence
of unsafe, unexpected product performance is sufficient to
The district court’s refusal to instruct the jury on infer the existence of a product defect’ under the first prong
Tompkin’s consumer expectations theory does not constitute of the consumer-expectation standard.” Id. (quoting State
grounds for a new trial, as any error was harmless, given that Farm Fire & Cas. v. Chrysler Corp., 523 N.E.2d 489, 494-95
the district court did instruct the jury on a “virtually (Ohio 1988)). “[T]he determination of whether a product is
indistinguishable” claim. more dangerous than an ordinary person would expect is
generally a question of fact which does not require expert
This court reviews a district court’s refusal to give a testimony.” Id. (quoting Fisher v. Ford Motor Co., 13
requested jury instruction under an abuse of discretion F. Supp. 2d 631, 638 n.10 (N.D. Ohio 1998)).
standard. Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d
445, 449 (6th Cir. 2000). A district court’s refusal to give a The district court refused to instruct the jury on Tompkin’s
jury instruction constitutes reversible error if (1) the omitted consumer expectations theory, finding that “there was no
instruction is a correct statement of the law, (2) the instruction testimony” to support this claim. J.A. at 2629. Evidently, it
is not substantially covered by other delivered charges, and accepted the defendants’ argument that Dr. Smith’s
(3) the failure to give the instruction impairs the requesting testimony, which Tompkin claimed created a jury issue as to
party’s theory of the case. Id. “A judgment may be reversed the consumer expectations theory, addressed only the
only if the instructions, viewed as a whole, were confusing, common knowledge issue. J.A. at 2624, 2629.
misleading, or prejudicial.” Id. (quoting Beard v. Norwegian
Caribbean Lines, 900 F.2d 71, 72-73 (6th Cir. 1990)). Even assuming for the sake of argument that Tompkin
created a triable issue as to her consumer expectations theory,
Under OPLA, a product is defective in design if “[i]t is the district court’s refusal to instruct the jury on this claim
more dangerous than an ordinary consumer would expect was harmless error. The district court did instruct the jury on
when used in an intended or reasonably foreseeable manner.” Tompkin’s breach of implied warranty claim, a cause of
Ohio Rev. Code Ann. § 2307.75(A)(2) (Anderson 2001). action that is “virtually indistinguishable” from a design
Under this “consumer expectations” test, a product may be defect claim under OPLA. Tompkin, 219 F.3d at 576
proven to be in a defective condition if (1) it is more (quoting Temple v. Wean United, Inc., 364 N.E.2d 267, 270
(Ohio 1977)); see also White v. DePuy, Inc., 718 N.E.2d 450,
454 (Ohio Ct. App. 1998) (observing that “the two theories
17
To mpk in does identify two pieces of evidence in her rep ly brief. have been used interchangeably and analyzed together”
To mpk in sought to introduce deposition testimony from prior proceedings (internal quotation omitted)). At least under the present facts,
from Frederick Panzer, a former emplo yee of T I, and from B ennett the elements of a consumer expectations claim and a breach
LeBow, the owner of Liggett Group, Inc. However, as discussed supra
in Section 3(d), the exclusion of this testimony does not constitute
grounds for a new trial.
Nos. 02-3267/3309 Tompkin v. Philip 35 36 Tompkin v. Philip Nos. 02-3267/3309
Morris, Inc., et al. Morris, Inc., et al.
of implied warranty claim are materially indistinguishable,18 conclude that the district court’s refusal to instruct the jury on
and the district court’s instruction on Tompkin’s breach of the consumer expectations claim resulted in prejudice.
implied warranty claim paralleled the pattern instruction for
a consumer expectations claim.19 Consequently, we cannot 5. The Defendants’ Cross-Appeal
Given our disposition of Tompkin’s appeal, the defendants’
18
cross-appeal is moot.
The elements of a breach of implied warranty claim are (1) the
existence of a defect in the product manufactured and sold by the CONCLUSION
defendant, (2) the defect existed when the product left the hands of the
defendant, and (3) the defect was the direct and proximate cause of the
plaintiff’s injuries. White v. DePuy, Inc., 718 N.E .2d 4 50, 4 55-5 6 (O hio
For the foregoing reasons, we AFFIRM the judgment of
Ct. App. 1998). A product is defective if it is “dangerous to an extent the district court.
beyond the expectations of an ordinary consumer when used in an
intended or reasonably foreseeable manner.” Leichtamer v. Am. Moto rs
Corp., 424 N.E .2d 5 68, 5 77 (Ohio 19 81); see also W hite, 718 N.E.2d at
456 (“A defect is considered to exist in a product that is not of good
merc hantab le quality, fit and sa fe for its ordinary intended use” (internal
punctuation and quotation omitted)). The elements of a consumer
expectations claim are (1) the product is more dangerous than an ordinary
consumer would expect when used in an intended or rea sonably
foreseeable manner, (2) the claimed defect was present when the product
left the manufacturer, and (3) the claimed defect proximately caused the
claimed injury. Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d 445, 455
(6th Cir. 2000) (citing Leichtamer).
19
The district court instructed the jury that in order to find the
defendants liable on the implied warranty claim, it had to find J.A. at 268 0. The Ohio p attern jury instructions provide as follows:
One, the defendant sold its cigarettes in a defective con dition CONSUMER EXPE CTAT ION T EST. A product is defective
that made them unreasonably dangerous to M r. Tompkin; and under the consumer expectation test if the product is more
two, the [defendant] engaged in the business of selling the dangerous than an ordinary consumer would expect when used
cigarettes; three, the cigarettes were expected to and did reach in an intended or reasonably foreseeable manner. Fore seeab le
Mr. Tom pkin without substantial change in the condition in uses of a product include those that might reasonably be
which they were sold; and four, the defect was a direct and expected, but no t all uses which could occur. You should decide
proximate cause of M r. Tom pkin’s injuries. whether the claimant’s injury occurred as a direct result of using
the product in a manner that was intended or reaso nably
And I should also add and dea th [sic]. foreseeable. If it was not so used, than the claim ant has failed to
prove the existence of a defect under the consumer expectation
For purpo ses of this claim, a product is not unre asonably test. If the product was so used and was more dangerous than an
dangerous unless it is dangerous to an extent beyond that which ordinary consumer would expect, then the claimant has proved
would be contemplated by the ordinary consumer who purchases the existence o f a defec t under the co nsumer exp ectation test.
them, with the ordinary know ledge com mon to the co mmunity
as to their characteristics. 3 Ohio Jury Instructions § 351.09 (2)(C) (2002).