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"Cigarettes cause cancer".
This statement is now accepted by the world as fact. Edwin M. Green’s case, which stretched over 12 long years in the 1960’s, convinced one jury of this fact but could not convince the supreme court of the United States to hold the American Tobacco company liable for selling an unsafe product for human consumption. The famous case, Green Vs. American Tobacco Company was the first case in history where a jury found a tobacco company responsible for the death of an individual.
For more information on this case please visit the links below for actual court documents.
History of Green vs. American Tobacco Company:
The diversity-jurisdiction litigation evolved in these appeals began in December, 1957, when Florida citizen Edwin Green, Sr., filed his complaint in the U. S. District Court for the Southern District of Florida, against the American Tobacco Company, a New Jersey corporation, claiming damages for personal injuries resulting from the incurrence of lung cancer from the consumption of defendant's product, Lucky Strike cigarettes.
Pending suit, plaintiff Edwin Green, died on February 25, 1958, and his Administrator, Edwin Green, Jr., was substituted as party plaintiff. Thereafter the decedent's widow, Mary Green, filed a companion suit in the Federal Court under the Florida Wrongful Death Statute. The two appeared for jury trial upon the plaintiffs' first amended complaint which asserted six separate counts of liability:
(1) Breach of Implied Warranty;
(2) Breach of Express Warranty;
(3) Negligence;
(4) Misrepresentation;
(5) Battery; and
(6) Violation of the Federal Food, Drug and Cosmetic Act, the Federal Trade Commission Act, and the Florida Food, Drug and Cosmetic Act.
At the conclusion of plaintiffs' case, the trial Judge directed a verdict in favor of defendant as to all counts except:
(1) Breach of Implied Warranty and
(3) Negligence
Upon conclusion of the entire case, defendant renewed its motion for directed verdict as to Counts (1) and (3) the motion was denied and the cases were submitted to the jury upon the two theories of liability, breach of implied warranty and negligence. The jury was asked to return both a general verdict and answers to special interrogatories. At the charge conference the trial Judge denied plaintiffs' requested charges on the issue of implied, granting the plaintiffs an exception thereto. The special jury interrogatories requested by both parties were rejected by the Court in favor of its own. The jury returned its verdict after lengthy deliberation. By its answers to the interrogatories, the jury found:
(1) that plaintiffs' decedent had a primary cancer of the left lung;
(2) that this cancer was the cause or one of the causes of his death;
(3) that the smoking of Lucky Strike cigarettes was a proximate cause of the lung cancer; and (
4) that the defendant tobacco company could not have known by February 1, 1956, (the date of diagnosis/ by the reasonable application of human skill and foresight that the users of Lucky Strike cigarettes would be endangered of contracting cancer of the lung.
A general verdict in favor of the defendant accompanied these findings. Final judgments in both cases were thereupon entered for defendant.
Both plaintiffs filed identical post-trial motions entitled, "Motion To Set Aside Judgment And General Verdict For The Defendant And To Enter Judgment For Plaintiff In Accordance With The Answers To Special Interrogatories Numbers 1, 2, and 3, Notwithstanding The General Verdict For Defendant, And To Order A New Trial On The Issues Of Damages Only, Under Rule 49 Of The Federal Rules Of Civil Procedure." as well as Motions For New Trial.
All of these post-trial motions were denied.
After the final judgments in its favor were rendered, the defendant tobacco company filed its Bill of Costs requesting that the sum of $6,301.82 be taxed as costs against the plaintiffs.
After correction, this request came on for hearing on the plaintiffs' objections thereto. Upon bearing, the District Court entered its Cost Judgment against the plaintiffs in the total amount of $1,969.74. Of this amount, some $900.00 was for expert witness fees assessed at the rate of $163.00 per expert witness. Plaintiffs have likewise appealed from the entry of these costs judgments. The appeals from the two judgments on the merits and from the cost judgments were ordered consolidated by the District Court.
Three Questions Presented:
Three questions only are presented by these appeals:
(1) Under the Florida doctrine of implied warranty are not the plaintiffs entitled to judgment as
a matter of law, as requested in their post-trial motions under 49 (b), based upon the
jury’s special findings that the smoking of defendant's Lucky Strike cigarettes proximately
caused the plaintiffs' decedent to contract a fatal case of cancer of the lung?
(2) Did not the trial Judge err in refusing to grant plaintiffs requested charges on the issue of implied warranty and in charging instead that the implied warranty of fitness which a manufacturer under Florida law is held to make depends upon the ability of the manufacturer to know about the harmful substances in its product?
(3) Did not the trial Judge err in taxing as costs against the plaintiffs a total of nine expert witness fees in the amount of $100.00 per expert, such sums being beyond the amount allowable and authorized by Federal statute?
Statement of the facts
(1) Edwin Green.
Edwin Green began smoking Lucky Strike cigarettes in 1924-25 and continued smoking them, at the rate of one to three packages per day until 1956 when his physician advised him that he had contracted cancer of the left lung. By the time of diagnosis the cancer had already spread or metastasized to the 6 lymph glands outside Green's lungs and was no longer operable or curable. Amello- rating treatment was given, but the cancer proceeded on its typical, fatal course and terminated with Edwin green’s death on February 25, 1958. Edwin Green was treated by two of Miami's outstanding medical physicians, DeWitt C. Daughtry, M.D., a senior thoracic surgeon, and Charles F. Tate, M.D, an internist who specializes in chest diseases and is a full-time faculty member of the University of Miami Medical School. Both of these treating doctors testified that Edwin Green had a typical primary cancer of the left lung, that he died from this cancer, and that the cancer was caused by the decedent's smoking of cigarettes. Edwin Green was born in Florida and lived all of his life in Florida except for his Navy service during World War II. He enjoyed normal good health until V-J Day in 1945 when he was involved in a serious accident on Guam. Although this accident left him with permanent injuries to his legs, it did not affect his life expectancy and was not related to the cancer which caused his death. After the war Green returned to the construction business in which he continued to be occupied until early 1956. Edwin Green died at age forty-nine. He left surviving him his widow, Mary Green, and three children: a son Edwin, Jr. age 23: a daughter, Patricia Lee, age 9; and a daughter Catherine Ann, age 1 ½.
During the thirty or more years that he smoked, Edwin Green regularly smoked Lucky Strike cigarettes, except on the few occasions when this brand was not available. He inhaled the smoke into his throat and lungs. He did not ever have either cigarettes or cigarette smoke analyzed, did not know the composition of cigarette smoke, and assumed that smoking cigarettes was not harmful. He would not willingly have smoked Lucky Strikes if he had known that the cigarette smoke contained arsenic or other cancer producing ingredients.
The great mass of testimony and evidence at the trial concerned basically two factual issues:
(1) Was Edwin Green's death caused by a primary cancer of the lung, that is, a cancer originating in the lung?
(2) Do cigarettes cause lung cancer? Or specifically, was the cancer in Edwin Green's lung caused by his consumption of defendant's product, Lucky Strike cigarettes?
The trial was devoted principally to the presentation of expert medical testimony. On these issues the plaintiffs presented the testimony of eight medical doctors. Their evidence conclusively supports the jury's findings that the smoking of Lucky Strike cigarettes caused Edwin Green to incur a fatal lung cancer due to specific harmful ingredients or carcinogens contained in the cigarettes and cigarette smoke. Plaintiffs' evidence in this regard can be briefly described and summarized:
Carcinogens in Cigarettes.
By answers to interrogatories the defendant tobacco company admitted that,
"it would appear that polycyclic aromatic hydrocarbons are present" in the mainstream smoke of Lucky Strike cigarettes.
Defendant’s president confirmed that a group of polycyclic hydrocarbons had been detected in Lucky Strike cigarette smoke by spectrophotometric process and defendant's research director disclosed that the company had unsuccessfully attempted to eliminate or reduce the elements in tobacco which produce these polycyclic aromatic hydrocarbons. Plaintiffs' witness Dr. Wynder testified that certain polycyclic aromatic hydrocarbons had definitely been isolated and identified in cigarette smoke. These polycyclic aromatic hydrocarbons were positively described as being carcinogenic (cancer'-causing).
In addition, the defendant's answer to interrogatories showed that the American Tobacco Company since 1927 had been conducting frequent tests showing not only the presence of measurable quantities of arsenic in the mainstream smoke of Lucky Strikes, but also showing that from 1927 to 1951 the amount of arsenic in Lucky Strikes and in the mainstream smoke of Lucky Strikes regularly increased year by year more than three fold from 11.9 micrograms per cigarette in 1927 to 42.1 micro- grams in 1951, and from .52 micrograms in the mainstream smoke in 1927 to 1.85 micrograms in 1951. Arsenic likewise was positively identified as a known carcinogen. Plaintiffs' Medical Witness testified as follows:
Dr. Ernest L. Wynder:
Dr. Wynder is a professor of medicine at the Sloan-Kettering Institute, a Division of Cornell University. He is the head of the section of epidemiology, and devotes from sixty to seventy per cent of his time to work related to respiratory tract cancer. He has published thirty papers with respect to the effect of smoking, and supervises the work of 25 specialists on the staff of the Institute. He specializes in cancer patients and has seen approximately 1200 cancer patients.
Dr. Wynder testified that "smoking was a main factor in lung cancer" and that the "risk of a very heavy smoker to develop lung cancer is at least twenty times greater than a non-smoker"; and that "the major cause of epidermoid lung cancer in man is cigarette smoking"; that "the major factor that produces lung cancers in American males is smoking"; and that "we are convinced that smoking is a cause of king cancer". Dr. Wynder identified the chemical elements in cigarette smoke known as higher aromatic polycyclic hydro- carbons as the primary or major cancer-causing agent. He pointed out that 90 per cent of the total smoke solids which are deeply inhaled get retained in the lung, and that a majority of the tobacco smoke condensate gets condensed in the bronchi. According to his studies, 98.5% of lung cancer cases occur among smokers; women who get lung cancer smoke more; and that in a study of Seventh Day Adventists (a non-smoking sect) only two cases of epidermoid lung cancer were found and these turned out to be heavy smokers before joining the church.
Dr. DeWitt C. Daughtry:
Dr. Daughtry is the senior member of a team of physicians in Miami specializing in thoracic (or chest) surgery. He is a professor of surgery at the University of Miami Medical School; was elected president of the Southern Chapter of the American College of Chest Physicians; be- longs to numerous professional societies. He has performed 4,000 to 5,000 chest operations, and has seen approximately 2,000 cases of cancer of the lungs. He is the chief or chairman of thoracic surgery at two of Miami's largest hospitals. Dr. Daughtry testified that he personally examined and treated Edwin Green for his lung cancer; that Mr. Green had a typical case of primary cancer of the lung which had progressed beyond any hope of a cure; that the diagnosis was "very clear to us"; that there was no question in his mind because "it had the absolute characteristic appearance from the beginning, we had our proof of diagnosis, and it followed a typical course, unfortunately"; that the cancer was primary to the lungs; that is, it started in the lungs; and that cancer of the lung was the basic cause of death. Dr. Daughtry further testified that Edwin Green's lung cancer was caused by his heavy smoking; that arsenic is a carcinogen and a cause of lung cancer; that arsenic has an irritative, accumulative effect and is a factor in the production of cancer of the lung; and that the higher aromatic polycyclics in cigarette tar are carcinogenic.
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Neither the famous fact-finding case or the long nine years of litigation has produced one penny for Edwin Green's widow or his estate. "Plaintiffs' case has been before two juries, this court, the Supreme Court of Florida, and the United States Supreme Court. But no jury has ever reached the question of damages because no jury has ever been properly charged on the implied-warranty-liability law. And so, once again, plaintiffs came to this Court seeking a New Trial on Damages Only or a full New Trial."
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A new trial has never been granted.
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