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THE ESTATE OF MICHELLE SCHWARZ, deceased by and through her Personal Representative, RICHARD SCHWARZ, Plaintiff, v. PHILIP MORRIS INCORPORATED, a foreign corporation, Defendant. Case No. 0002-01376 March 19, 2002 JURY INSTRUCTIONS It is your sole responsibility to make all the decisions about the facts in this case. You must evaluate the evidence to determine how reliable that evidence is. When you make your decision about the facts, you must then apply the legal rules to those facts and reach your verdict. Remember, however, that your power to reach a verdict is not arbitrary. When the court tells you what the law is on a particular subject or tells you how to evaluate certain evidence, you must follow these instructions. Do not allow anything that the court has said or done during the course of this trial to suggest that the court has formed any opinion about this case. Keep in mind that the court is required by law to give certain instructions in every case. When the court has sustained objection to evidence, or ordered that evidence be stricken or excluded from your consideration, you must follow the court's rulings. Do not consider such matters during your deliberations. Base your verdict on the evidence and these instructions. The attorneys' statements and arguments are not evidence. If your recollection of the evidence is different from the attorney's recollection, you must rely on your own memory. In deciding this case, you are to consider all the evidence that you find worthy of belief. It is your duty to weigh the evidence calmly and dispassionately and to decide this case on its merits. Do not allow bias, sympathy, or prejudice any place in your deliberations: all parties are equal before the law. Do not decide this case on guesswork, conjecture, or speculation. Generally, the testimony of any witness whom you believe is sufficient to prove any fact in dispute. You are not simply to count the witnesses, but you are to weigh the evidence. Keep in mind that each party is entitled to the considered decision of each juror. Therefore, you should not give undue weight to another juror's notes if those notes conflict with your recollection of the evidence. The term evidence refers to testimony and exhibits. In deciding this case, you are to consider and weigh all the evidence that you find worthy of belief. The statements and arguments that you have heard from the attorneys are not evidence. They are intended to be helpful to you, and I trust they have been helpful to you, but if your recollection of the evidence differs from the attorneys', rely on your own memory. The term witness includes every person who has testified in this case. Every witness has taken an oath to tell the truth and is assumed to speak truthfully. However, this assumption may be overcome by: (1) The manner in which the witness testifies. (2) The nature or quality of the witness's testimony. (3) Contradictory evidence that you find to be more probably true. (4) Evidence concerning the bias, motives, or interest of the witness. An expert witness may give an opinion on any matter in which that witness has special knowledge skill, experience, training, or education. You should consider the qualifications and credibility of the expert witnesses and the reasons given for the opinion. You are not bound by the opinion. Give it the weight, if any, to which you consider it is entitled. Hypothetical questions have been asked. A hypothetical question asks a witness to assume that certain facts are true, and then to give an opinion based on those assumed facts. If you find that any of the facts assumed and relied on by the witness when forming an opinion were not established by the evidence or were untrue, you must disregard that opinion. There are two types of evidence. One is direct evidence -- such as the testimony of an eyewitness. The other is circumstantial evidence -- the proof of a chain of circumstances pointing to the existence or nonexistence of a certain fact. Proof may be either type or both. In evaluating the evidence, you may consider the power of each side to produce evidence. If weaker and less satisfactory evidence is offered by either party when it appears to you that stronger and more satisfactory evidence was within the power of the party to produce, the evidence offered should be viewed with distrust. The questions to be decided in a lawsuit are define in certain formal papers filed in court by the parties and known collectively as the "pleadings." These consist of the plaintiff's complaint, which sets forth the plaintiff's claims as to the facts; the defendant's answer, in which the defendant either admits or denies the various claims of the plaintiff and sets forth any additional claims or defenses on which the defendant relies; and the plaintiff's reply, in which the plaintiff admits or denies the various claims or defenses in the defendant's answer. By these pleadings questions of fact are made up and it is these questions and only these that are submitted for the jury's determination. This is a claim by the Estate of Michelle Schwarz, deceased, against Philip Morris Incorporated arising out of the death of Michelle Schwarz in 1999. The Estate makes three claims. The first claim is called Strict Liability. In this claim, the Estate alleges that Merit brand cigarettes manufactured and sold by Philip Morris after February 1990, were defectively designed and dangerous beyond the reasonable expectations of ordinary consumers because of the following: 1. The cigarettes contained added ammonia which increased the effects of nicotine; 2. The cigarettes or their smoke contained altered pH which increased the effects of nicotine; and 3. "Low tar" cigarettes were sold as a less harmful alternative to regular cigarettes. The second claim is called Negligence. In this claim, the Estate alleges that Philip Morris acted in an unreasonable manner in manufacturing and selling Merit brand cigarettes in the following ways: 1. In avoiding testing of tobacco, tobacco, tobacco smoke, and cigarettes in a way that would be likely to show the relationship between human disease and smoking in order to allow Philip Morris to claim ignorance of the relationship between human disease and smoking; 2. I processing, controlling and manipulating the contents and proportions of various substances in cigarettes in such a way as to continue and or enhance the addictive effects of those products on users, specifically by: (a) Adding ammonia to increase the effects of nicotine; (b) Altering the pH of cigarettes or cigarette smoke so as to increase the effects of nicotine; and (c) Controlling and manipulating the amount in its cigarettes in such a way as to maintain the physical dependence of Michelle Schwarz and other smokers on its cigarettes. 3. In selling and distributing cigarettes which it knew or should have known contained poisonous and carcinogenic substances capable of causing and likely to cause numerous serious and fatal injuries and diseases, including but not limited to cancer of the lungs; 4. In selling and distributing products which it knew or should have known contained addictive substances capable of and likely to induce addiction when used in a foreseeable manner; 5. In failing to manufacture and sell cigarettes without the characteristics described above although it was capable of doing so, thus depriving Michelle Schwarz of the opportunity to smoke a safer cigarette; and 6. In selling so-called low tar cigarettes as a safer cigarette and as an alternative to quitting. In addition, the Estate claims that Philip Morris assumed a duty to disclose research, cooperate closely with public health authorities and hold people's health paramount to all other business considerations and was negligent in not fulfilling that duty. Finally, the third claim is based on Fraud. In this claim, the Estate alleges that Philip Morris recklessly or intentionally made fraudulent misrepresentations about adverse health effects, the addictive nature of its tobacco products and their contents which were intended to and did cause cigarette smokers such as Michelle Schwarz to continue smoking cigarettes in spite of their adverse health effects misrepresentations. These misrepresentations included the following: 1. That the causal link between cigarette smoking and human disease was in doubt or "had not been proven" in repeated statements during the past 50 years; 2. That cigarettes are not addictive; and 3. That "low tar" cigarettes delivered less tar and nicotine to the smoker and were therefore safer and healthier than regular cigarettes as an alternative to quitting smoking. In addition, the Estate claims that Philip Morris voluntarily assumed a duty to disclose all research and fraudulently concealed such research from Michelle Schwarz and others. The Estate claims that Philip Morris' defective product, negligence and fraud caused Michelle Schwarz' cancer and death. Philip Morris denies the Estate's claims that Merit cigarettes are defectively designed and unreasonably dangerous, that Philip Morris was negligent in any way claimed by the Estate or that it make any misrepresentation that Michelle Schwarz relied upon, or that such defective design, negligence or misrepresentation were a substantial factor in her illness or death. Also, by way of affirmative defenses, Philip Morris claims that Michelle Schwarz was comparatively negligent or at fault for her choice not to follow warnings regarding the health risks of smoking given her and printed on each package of cigarettes she purchased since January 1966 and for her choice not to quit smoking. The foregoing is merely a summary of the pleadings. You are not to take anything in them as true unless it is admitted or proved by the evidence. Pleadings are not evidence unless they were received into evidence and then only for the purpose for which they were received. A party has the burden of proving any claim or defense made in that party's pleadings. In the absence of such proof, the party cannot prevail as to that claim or defense. Plaintiff must prove his claim for fraud and his claim for punitive damages by clear and convincing evidence. Every other claim or defense in this case must be proven by a preponderance of the evidence. The term preponderance of the evidence means the greater weight of evidence. It is such evidence that, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. If, on any question in the case, the evidence appears to be equally balanced, or if you cannot say on which side it weighs heavier, you must resolve that question against the party on whom the burden of proof rests. Clear and convincing evidence is evidence that enables you to find that the facts alleged are highly probable. The law assumes that all persons have obeyed the law and have been free from negligence and fault. The mere fact alone that an accident happened or that a person was injured is not sufficient of itself to prove negligence or fault. It is, however, a circumstance that may be considered along with other evidence. To recover, the plaintiff must prove two things by a preponderance of the evidence: (1) that the defendant was negligent in at least one of the ways claimed in the plaintiff's complaint; and (2) that the defendant's negligence was a cause of damage to the plaintiff. Similarly, for the defendant to prevail on the defendant's claim that the plaintiff was negligent, the defendant must prove two things by a preponderance of evidence: (1) that the plaintiff was negligent in at least one of the ways claimed in the defendant's answer; and (2) that the plaintiff's negligence was a cause of damage to the plaintiff. A "cause" is defined as an act or omission that a substantial factor in bringing about the injury. A substantial factor is an important or material factor and not one that is insignificant. The law requires every person to use reasonable care to avoid harming others. Reasonable care is the degree of care and judgment used by reasonably careful people in the management of their own affairs to avoid harming themselves or others. In deciding whether a party used reasonable care, consider the dangers apparent or reasonably foreseeable when the events occurred. Do not judge the party's conduct in light of subsequent events; instead, consider what the party knew or should have known at the time. A person is negligent, therefore, when that person does some act that a reasonably careful person would not do, or fails to something that a reasonably careful person would do under similar circumstances. A manufacturer may voluntarily assume a duty to act. If you find defendant Philip Morris voluntarily assumed a duty to act with respect to Merit Cigarettes sold after February 11, 1990, through its statements, publications, or conduct, then it is required to act reasonably in performance of the assumed duty and is liable for failure to exercise reasonable care in completion of its assumed undertaking if such conduct caused injury to Michelle Schwarz. A person is liable only for the reasonably foreseeable consequences of his or actions. There are two things that must be foreseeable. First the plaintiff must be within the general class of persons that one reasonably would anticipate might be threatened by the defendant's conduct. Second, the harm suffered must be within the general class of harms that one reasonably would anticipate might result from the defendant's conduct. The Merit brand cigarettes purchased by Michelle Schwarz in this case included the federally prescribed warning label. The 1969 Labeling Act prohibits claims based on a failure to warn and the neutralization of federally mandated warnings to the extent that those claims rely on omissions or inclusions in defendant's advertising or promotions. The 1969 Act does not prohibit plaintiff's claims based on negligence, false representation, half-truths, breach of a voluntarily assumed duty or strict liability. Plaintiff has alleged that defendant was negligent or strictly liable in causing Michelle Schwarz' death. In turn, defendant has alleged that Michelle Schwarz' death was caused by her own negligence in failing to heed warnings given to her about the health risks of smoking and in deciding to continue smoking. This requires instructing you on the law of comparative negligence or fault. If you find that both the defendant and Michelle Schwarz were at fault in any respect alleged which was a cause of Michelle Schwarz' death, then you should compare the fault of Michelle Schwarz. In making this comparison, you are to measure the fault of the defendant and Michelle Schwarz and not mere physical causation of the injury. If Michelle Schwarz' fault was greater than the defendant's fault, then the plaintiff is not entitled to a verdict in his favor. If Michelle Schwarz' fault was equal to or less than the defendant's fault, then the plaintiff is entitled to a verdict in his favor. In other words, if Michelle Schwarz' fault was more than 50% then the plaintiff is not entitled to a verdict in his favor. On the other hand, if Michelle Schwarz' fault is 50% or less, then the plaintiff is entitled to a verdict in his favor. Do not reduce the amount of the plaintiff's damages, if any. The judge will reduce the amount awarded to the plaintiff by the percentage of the plaintiff's fault, if any. Defendant Philip Morris is liable for the acts or omissions of its agents. The Tobacco Institute (TI), Council for Tobacco Research (CTR) and the Tobacco Institute Research Committee are agents of defendant Philip Morris. Any negligence or fault of TI, CTR or TIRC is the negligence or fault of defendant Philip Morris. You are instructed that a corporation can act only through its officers, agents, or employees. In this case, if any officers, agents, or employees of defendant Philip Morris were negligent in one or more respects as charged against that party, such negligence is to be treated as the act of that party, if within the scope of such person's authority. Federal law states that defendant may not be subject to liability based on its lobbying petitioning or other advocacy efforts before a state or federal legislative or administrative body unless those efforts were undertaken in an attempt to directly injure a commercial competitor or where defendant had no real interest in the outcome. The following instruction applies to the negligence and products liability claim, but not the fraud claim in this case. Oregon law that provides that products damage claims must be commenced no later than eight years after the date on which the product was sold. In this case, plaintiff may recover only if the defendant was negligent or strictly liable in at least one of the ways alleged in plaintiff's complaint with respect to Merit cigarettes sold to Michelle Schwarz on or after February 11, 1990, and only if those cigarettes were a substantial factor in causing plaintiff's damages. However, you may consider evidence of events, statements and conduct before February 11, 1990 to show knowledge, intent of the state of mind of the parties. The law recognized a presumption in a products liability case that are manufactured and sold is not defective and unreasonably dangerous for its intended use. Plaintiff has the burden of rebutting this presumption and proving that Merit cigarettes sold after February 1990, were unreasonably dangerous in the respect set forth in his Complaint. In determining whether Merit cigarettes purchased by Michelle Schwarz after February 1990 were defective and unreasonably dangerous, you must determine whether they were dangerous to an extent beyond that which would have been contemplated by the ordinary consumer with the ordinary knowledge common to the community in or after February 1990. I instruct you that good tobacco is not defective and dangerous to an extent beyond that contemplated by the ordinary consumer merely because smoking may be harmful. Industry and governmental codes, regulations and standards may be considered by you as evidence as to whether or not defendant acted with reasonable care. The plaintiff has alleged that Michelle Schwarz and her Estate were damaged as a result of the defendant's fraud. To prevail the plaintiff must prove each of the following elements: (1) The defendant made a false representation of a material matter; (2) The defendant knew that the representation was false or recklessly made the representation without knowing if it was true or false; (3) The defendant intended to mislead Michelle Schwarz; (4) Michelle Schwarz reasonably relied on the defendant's misrepresentations; and (5) Michelle Schwarz suffered injury and death as a direct result of her reliance on defendant's misrepresentation. A false representation of material matter is one that would be likely to affect the conduct of a reasonable person with regard to a transaction with another person. If you find Philip Morris voluntarily assumed a duty to disclose to Michelle Schwarz, defendant must disclose to Michelle Schwarz all material matters of which the defendant has knowledge. Accordingly, silence or failure to disclose a material matter may be a false representation. When a defendant makes a representation to a plaintiff in the nature of half-truth, the failure of a defendant to make a full and fair disclosure of the truth may be a false representation. A person may make a false representation of a material matter by concealing the truth. A false representation by concealment occurs when a person, by any word or act, conceals a material matter either by creating a false impression covering up the truth or by removing an opportunity that might otherwise have led to the discovery of the truth. In determining whether Michelle Schwarz' reliance on such statements of the defendant was reasonable, you may consider factors such as: (1) Any information known or obvious to the plaintiff to confirm or refute the defendant's statement; (2) The relative status, knowledge, and experience of the plaintiff and the defendant; (3) The previous experience of the plaintiff and the defendant in similar transactions; (4) Whether the statement was specific or general; and (5) Whether the statement was a statement of fact or the expression of an opinion. The plaintiff must prove the elements of fraud by clear and convincing evidence. I will not instruct you on the law of strict liability for a defective product. A defendant is liable for harm caused by a product if: (1) The defendant was engaged in the business of manufacturing or selling the product; and (2) The product was in a defective condition that was unreasonably dangerous to the plaintiff when the product left the defendant's hands; and (3) The product was intended to and did reach the plaintiff without substantial change in the condition in which it was manufactured or sold. By defective condition, it is meant that at the same time the product left the hands of the manufacturer, it was in a condition that was not contemplated by the ultimate user and was unreasonably dangerous to the ultimate user. A product may be in a defective condition because of the design of the product itself. A product is unreasonably dangerous when it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases with the ordinary knowledge common to the community as to its characteristics. A manufacturer of a product that is an unreasonably dangerous defective condition is subject to liability for harm in strict liability caused by the product even though the manufacturer exercised all possible care. In considering the defendant's claim that Michelle Schwarz was at fault in causing her own injuries in connection with the strict liability claim you are not to consider the plaintiff to be at fault for any unobservant, inattentive, or awkward failure to discover or to guard against the alleged product defect. Noneconomic damages are subjective, nonmonetary losses. The law does not furnish you with any fixed standard by which to measure the exact amount of noneconomic damages, but the law requires that they be reasonable. You must apply your own considered judgment to determine the amount of noneconomic damages. In determining the amount of noneconomic damages, if any, consider each of the following: (1) Any disability, pain, and suffering sustained by the decedent during the period between the decedent's injury and the decedent's death; (2) Any loss of society, companionship, and the services of the decedent sustained by the decedent's spouse, children and mother. In determining this loss you may consider: (a) Any love, affection, guidance, moral training, and education the decedent might reasonably have been expected to provide had the decedent lived; (b) Any services the decedent customarily performed for them in the past; (c) Any services the decedent might reasonably have been expected to perform for them in the future; (d) The decedent's age, ability, life expectancy, health habits, industry, sobriety, and thrift; and (e) The age, health, and life expectancy of the decedent's spouse, children and parents. The amount of noneconomic damages may not exceed $5,000,000.00. Economic damages are objectively, verifiable monetary losses. In determining the amount of economic damages, if any, consider each of the following: (1) Any reasonable and necessary charges incurred for doctors' services, hospital services, nursing services, other medical services, burial services, and memorial services rendered for the decedent. (2) If you find plaintiff is entitled to recover economic damages, the stipulated reasonable and necessary medical charges incurred amount to $118,514.22. (3) If you find the plaintiff is entitled to recover economic damages, you must award some noneconomic damages pursuant to the instructions we have given you. If Michelle Schwarz prevails on any of her three claims, then you must consider whether to award punitive damages. To recover punitive damages, Michelle Schwarz must show by clear and convincing evidence that defendant Philip Morris has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety, and welfare of others. Clear and convincing evidence is evidence that makes you believe that the truth of the claim is highly probable. If you decide that the defendant has acted as claimed by the plaintiff, you have the discretion to award punitive damages. Punitive damages, if any, shall be determined and awarded based on the following: (1) The likelihood at the time that serious harm would arise from the defendant's misconduct; (2) The degree of the defendant's awareness of that likelihood; (3) The profitability of the defendant's misconduct; (4) The duration of the misconduct and any concealment of it; (5) The attitude and conduct of the defendant upon discovery of the misconduct; (6) The financial condition of the defendant; and (7) The total deterrent effect of other punishment imposed on the defendant as a result of the misconduct, including, but not limited to, punitive damages awards to persons in situations similar to the claimant's and the severity of criminal penalties to which the defendant has been or may be subjected. The amount of punitive damages you award may not exceed $300,000,000.00. You may not allow your decision regarding punitive damages to be affected by the fact that Philip Morris' principal offices are outside of this State, or by its corporate status. The court has prepared written instructions for your use. When you use these written instructions, do not place undue emphasis on any particular instructions, but rather consider the instructions as a whole. When you return to the jury room, select one of your members to act as presiding juror. The presiding juror is to participate like all other jurors and has no greater weight or voice than any other juror. After selecting your presiding juror, deliberate until you reach your verdict. You will have the verdict form with you in the jury room. Answer the questions according to the directions on the form and all instructions of the court. This is a civil case. At least the same nine jurors must agree on each answer unless the verdict form instructs you otherwise as to a particular question. When you have answered each question, your presiding juror should insert the answers on the verdict form, sign and date the verdict form, and then signal the bailiff.
Court will then
reconvene and receive your verdict. |