Toxic Tort Liability versus Conventional Products Liability in Massachusetts

In a recent opinion, Judge Mark Wolf of the District Court of Massachusetts made a distinction between cigarette-related toxic tort liability and conventional products liability to deny Plaintiff’s motion for reconsideration of an order dismissing six of her claims against Philip Morris. Sarro v. Philip Morris USA, Inc., No. 08-10224, 2010 WL 1930442 (D. Mass. May 12, 2010).

Sarro involved a fire caused by a cigarette. The administratrix of Linda Rivers’ (“Rivers”) estate, Rosalie Sarro (“Sarro”), filed a lawsuit against Philip Morris alleging that it defectively designed and manufactured Marlboro cigarettes. She claimed a lit Marlboro caused a fire that resulted in Rivers’ death and damage to property. On the motion of Philip Morris, the District of Massachusetts dismissed Sarro’s causes of action that “alleged that Philip Morris is liable because its product design was unreasonably dangerous because there was an alternative design for the cigarettes which would have reduced their propensity to continue to burn when left unattended.” Id. at *1. This ruling was based on the principle that “Massachusetts courts refuse to impose liability on manufacturers for injuries resulting from common everyday products whose obvious dangers are known to be associated with the product.” Id. at *4.

In response to the District Court’s order, Sarro filed a motion for reconsideration asserting an intervening change in the law of Massachusetts from a case that was decided after the court dismissed her claims, Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009). In Donovan, the alleged cause of injury was the quantity of carcinogens in the cigarettes — “physiological changes.” The Court in Donovan found it appropriate to extend general negligence principles to claims regarding “exposure to toxic substances . . . even if the full effects [of those substances] [we]re not immediately apparent.” Donovan, 914 N.E.2d 901.

In Sarro, on the other hand, the alleged cause of injury was the cigarette’s capacity to create fire — “mechanical forces.” As a result, the Sarro court distinguished Donovan and found that “because Donovan’s holding affects the analysis applicable to toxic tort liability, not conventional products liability, it does not impact this case.” Sarro, 2010 WL 1930442, at * 4. The Sarro court denied Sarro’s motion for reconsideration.

From this case, it is interesting to note how the Court differentiated “physiological changes” that put persons at risk of harm from “mechanical forces” that put person at risk of harm and associated that harm with toxic tort liability and conventional products liability, respectively. Practitioners should be aware of this distinction and analyze whether it could affect arguments against liability.

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