Massachusetts Supreme Judicial Court Limits Defense in Wrongful Death Case Against Philip Morris

In Haglund v. Philip Morris Inc., a wrongful death case based on breach of implied warranty (In Massachusetts implied warranty is the functional equivalent of strict liability) arising out of the death from lung cancer of the plaintiff's husband, the Massachusetts Supreme Judicial Court determined that Philip Morris could not assert as an affirmative defense that the decedent's use of cigarettes was "unreasonable," within the meaning of the court's earlier decision in Correia v. Firestone Tire and Rubber Co., 446 N.E.2d 1033, 1040 (Mass. 1983), in which the court held that "the user's negligence does not prevent recovery except when he unreasonably uses a product that he knows to be defective and dangerous."  The court explained that "the Correia defense presumes that the product at issue is, in normal circumstances, reasonably safe and capable of being reasonably safely used, and therefore that the consumer's unreasonable use of the product he knows to be defective and dangerous is appropriately penalized," but that in this case, "both Philip Morris and the plaintiff agree that cigarette smoking is inherently dangerous and that there is no such thing as a safe cigarette. Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes. Thus the Correia defense, which serves to deter unreasonable use of products in a dangerous and defective state, will, in the usual course, be inapplicable."  The court said that the key to the continued viability of the Correia defense "is not the care, knowledge, or intent of the manufacturer, but the duty of the user to act reasonably concerning a product known to be defective and dangerous."  The court noted that there may be cases where it will be appropriate to assert the defense.  The court gave as an example a case where a consumer begins smoking cigarettes with knowledge that she has a serious medical condition, such as emphysema, which is exacerbated by smoking.  To assert the Correia defense in such a case the defendant would have to prove that the plaintiff knew that smoking would exacerbate her specific illness at the time she started smoking, not "that the consumer had a medical expert's knowledge of the risk." Supreme Judicial Court Web Page

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