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United States Court of Appeals for the Eighth Circuit
April 12, 2004, Submitted ; January 7, 2005, Filed
[*596] WOLLMAN, Circuit Judge.
Brown & Williamson Tobacco Company (B&W) appeals from the judgment entered by the district court 1 on the jury's verdict in favor of Henry W. Boerner (Boerner) on his design defect claim. We affirm, conditioned on Boerner's acceptance of the remittitur ordered on the punitive damages portion of the jury's award.
[**2] [*597] I.
Lung cancer was identified in the 1930s and its incidence rose sharply in that same decade. In 1941, Drs. Alton Oschner and Michael DeBakey published "Carcinoma of the Lung" in Archives of Surgery. The article noted the parallel rise in smoking and lung cancer, concluding that the latter was due mostly to the former, and included a lengthy bibliography of sources from multiple countries. In response, Edward Harlow, a chemist at the American Tobacco Company, circulated an internal memorandum. Referring to research funded or conducted by American Tobacco, Harlow predicted that impartial research would vindicate cigarettes but that "this would never be suspected by reading the extensive medical literature on tobacco." He also noted that the "medical profession is the group which it is most desired to reach and convince" and that the "tobacco industry is very much in need of some friendly research in this field." Plaintiff-Appellee's Ex. 19 at E-1 to E-2.
Ernest Wynder, while in his second year of medical school, began conducting surveys of cancer patients in 1947. Dr. Evarts Graham, the head of the surgery department at Washington University School of Medicine in St. Louis [**3] and the first person to successfully remove a whole lung from a human being, granted Wynder access to his wards in order to gather more data the following year. The Journal of the American Medical Association published Wynder's survey data in 1950. Wynder's compilations of case after case among a variety of groups showed that lung cancer was extremely rare in non or minimal smokers. He had also begun laboratory studies on mice that tended to support the linkage.
Wynder continued his research at the Sloan-Kettering Institute, a leading private center for cancer research in New York. American Tobacco, also based in New York, contributed funds to Sloan-Kettering through the Damon Runyan fund and sought to intervene. Recalling the events at a meeting of these two groups, Mr. Hiram Hanmer, the Research Director at American Tobacco, explained how he "told them we were disturbed about some of the activities" of Drs. Wynder and Graham. Dr. Rhoads of Sloan-Kettering replied that Dr. Wynder's work and publications could be controlled, but not his activities outside of work.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
394 F.3d 594 *; 2005 U.S. App. LEXIS 223 **; 66 Fed. R. Evid. Serv. (Callaghan) 197; CCH Prod. Liab. Rep. P17,057
Henry W. Boerner, Individually and as Administrator of the Estate of Mary Jane Boerner, Deceased, Appellee, v. Brown & Williamson Tobacco Company, Appellant.
Prior History: [**1] Appeal from the United States District Court for the Eastern District of Arkansas.
Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 2001 U.S. App. LEXIS 17386 (8th Cir. Ark., 2001)
Disposition: Judgment entered on the verdict conditionally affirmed, subject to Boerner's acceptance of a remittitur judgment on the punitive damages award in the amount of $ 5 million. Absent acceptance of the remittitur, reversed and remanded for a new trial on the claim for punitive damages.
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