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Bar News - May 18, 2007

NH Attorney Involved in Precedent-Setting Tobacco Case



By the time Brenda Haglund’s husband died of lung cancer in 2000, the couple had already planned to sue Philip Morris USA. She called a law firm in Boston, which referred her to attorneys with expertise in tobacco litigation.


Haglund read the list of names, stopping at Manchester sole practitioner Stephen R. Fine. “His name is Stephen and my husband’s name was Stephen, so I just went with that,” said Haglund. That simple first step in securing counsel came a few months after Stephen C. Haglund, who had smoked Marlboros for nearly three decades, died at 51. He went quickly in the end, his widow says, unlike the wrongful death product liability action.


Haglund probably weighs about 500 to 1,000 pounds in paper, and is climbing, Fine estimates. When he brought the case in March 2001, he originally filed it with 10 others. They were all based on the same theory, that the product was defective because the manufacturer could have designed the product differently by extracting the nicotine. He severed Haglund, which is essentially a test case, because of varying issues case to case.


The Massachusetts Superior Court in Worcester denied the Haglund case in October 2004. But on appeal, the Massachusetts Supreme Judicial Court reversed the dismissal last year and remanded the case to the Superior Court for further proceedings.


It was a taste of success for Fine, however preliminary in the scope of things, in a field of litigation with few such victories.


The court unanimously ruled against a traditional tobacco company defense—the grounds of personal choice, that smokers know the health risks of cigarettes.


Taking a different approach, Fine conceded that Stephen Haglund knew cigarettes were unhealthy and that he unreasonably started smoking. He moved to preclude the tobacco company defense, arguing cigarettes are inherently dangerous when used for their ordinary and intended purpose. “Cigarettes,” he countered, “are the only consumer product in existence which when used exactly as intended, and in the complete absences of any mishaps, cause injury.”


Philip Morris USA noted the health risks in court papers, as it does on its Web site: “There is no safe cigarette.”


The Massachusetts Supreme Judicial Court gave Fine reason to smile.


“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 non-unreasonable use of cigarettes,” Chief Justice Margaret H. Marshall wrote for the court.


The court did conclude that, in certain instances, tobacco companies may still pursue the Correia defense (Correia v. Firestone Tire and Rubber Co., Mass., 1983, a.k.a. the “unreasonable use” defense). In agreeing with the company, the court said the “key to the 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.” It also was persuaded by the company’s argument that in certain situations a consumer’s use of cigarettes may be overwhelmingly unreasonable. For example, a consumer starts to smoke knowing he/she has a particular medical condition, such as emphysema.


Stephen Haglund, a truck driver from Douglas, Mass., who smoked as many as four packs of cigarettes a day, had repeatedly tried to quit but was addicted, according to his widow.


The “unreasonable use defense” gets turned on its head in the Supreme Judicial Court opinion. As the chief justice wrote, the defense is designed to encourage the reasonable use of products. “The legislative intent of our warranty laws would be sidestepped were the manufacturer of cigarettes permitted routinely to escape all liability merely by proving that the plaintiff was an ordinary consumer who used its products in a manner readily foreseeable,” Marshall wrote.


The court called “false analogies” the Philip Morris argument that one may become addicted to the sugar in candy or contract skin cancer by using suntan oil. It runs counter to commerce, for example, that the only safe use of a product is non-use, according to Marshall.


Fine also argued the cigarettes were defectively designed because the company could have implemented a safer alternative, one without the addictive properties of nicotine.


In its responses, Philip Morris denied all liability. The company also maintains the risks of cigarette smoking are widely known and that its attempts to market a reduced nicotine cigarette proved unsuccessful.


It remains to be seen whether the ruling will affect cases beyond Massachusetts, though tobacco company critics hope it sets a precedent. The ruling received a lot of press last year, referring to it as a blow to a go-to defense for tobacco companies, but it may do very little toward that end.


William S. Ohlemeyer, vice president and associate general counsel for Philip Morris USA, said in an interview with Bar News that the “unreasonable use” argument is not a traditional defense at all.


In 50 previous cases dismissed in Massachusetts, none were based on the defense at issue in the Supreme Judicial Court’s ruling, he said. He said the ruling does not significantly limit the defense, though the case is a long way from trial. The discovery stage closes June 1.


“I think some of it was an honest misunderstanding,” Ohlemeyer said. He said critics had tried to make the ruling out to be bigger than it was.


Brenda Haglund, now living in Winter Haven, Fla., praised Fine’s tenacity and patience throughout the case, saying his hard work would hopefully one day save lives. She is optimistic and sees the lawsuit as a way to honor her husband’s name. “We’re working hard to do something to keep my husband alive in some way,” she said. “It’s been a long, long road.”


In an interview at his Manchester office, Fine called tobacco litigation invigorating and frustrating. He is pleased with the course of Haglund because a number of tobacco cases faced defeat because of the argument that smokers knew the dangers.


Conceding that Haglund knew cigarettes were dangerous and that it was unreasonable to start smoking but did so anyway, was a unique move. Fine argues that the “unreasonable use” defense is irrelevant because there is no such thing as a safe cigarette. The Boston Globe, in reporting the ruling last year, called Fine’s move “a bit of legal jujitsu.”


Fine said his past work on tobacco cases helped him understand the legal complexities. He said it is too soon to say whether the case, per the Supreme Judicial Court ruling, will serve as a precedent. But he said the high court’s reasoning, the removal of blame from the smoker, is easily extended to another jurisdiction. “One of the things I need to do is win this case,” said Fine. “I need to go the full 100 yards.”


Fine, who received his law degree from Franklin Pierce Law Center in 1977, said tobacco litigation makes him proud to be an attorney. Other cases he is involved with include medical malpractice and personal injuries.


“Doing this work, there’s no question, we’re doing the right thing,” Fine said. “I just thought that it was an exciting and challenging thing to get into. Back in the early ’80s it was more than exciting and challenging— it was completely impossible. The judicial mood hadn’t changed at all back then. There were just no successful cases at all, and even up to this point there have only been a handful of successful cases.”


Fine is a former smoker. He quit in 1971, he said, at about the time the language on cigarette pack labels changed from “may be hazardous” to “is hazardous” to one’s health.


“The state of consciousness was different back then,” he said.


Fine, who is preparing disclosures for Superior Court by June, said the Haglund case could go to trial by October 2008. The Massachusetts high court’s ruling gives him hope for a new way to challenge tobacco companies. “I see a clear target with nothing in the way,” he said.



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