I, Edwin Green began smoking Lucky Strike cigarettes in 1924-25 andcontinued smoking them, at the rate of one to three packs per day until1956 when my physician advised me that I had contracted cancer of the left lung. By the time of diagnosis the cancer had already spread or metastasized to the 6 lymph glands outside my lungs and was no longer operable or curable. Amello- rating treatment was given, but the cancer proceeded on its typical, fatal course and terminated with my death on February 25, 1958. I was treated by two of Miami's outstanding medical physicians, DeWitt C. Daughtry,M.D., a senior thoracic surgeon,and Charles F. Tate, M.D, an internist who specializes in chest diseases and is a full-time faculty member of the University of Miami Medical School. Both of these treating doctors testified that I had a typical primary cancer of the left lung, that I died from this cancer, and that the cancer was caused by the smoking of cigarettes.
EDWIN M GREEN SR
THE TRUE UNSUNG HERO - IN 1912 THEY KNEW.
"Cigarettes cause cancer"
"CIGARETTES CAUSE CANCER!"
This statement is now accepted by the world as fact. Edwin M. Green's case, which stretched over 12 long years in the 1960's, convinced one jury of this fact but could not convince the supreme court of the United States to hold the American Tobacco company liable for selling an unsafe product for human consumption. The famous case, Green Vs. American Tobacco Company was the first case in history where a jury found a tobacco company responsible for the death of an individual.
History of Green vs. American Tobacco Company:
The diversity-jurisdiction litigation evolved in these appeals began in December, 1957, when Florida citizen Edwin Green, Sr., filed his complaint in the U. S. District Court for the Southern District of Florida, against the American Tobacco Company, a New Jersey corporation, claiming damages for personal injuries resulting from the incurrence of lung cancer from the consumption of defendant's product, Lucky Strike cigarettes.
Pending suit, plaintiff Edwin Green, died on February 25, 1958, and his Administrator, Edwin Green, Jr., was substituted as party plaintiff. Thereafter the decedent's widow, Mary Green, filed a companion suit in the Federal Court under the Florida Wrongful Death Statute. The two appeared for jury trial upon the plaintiffs' first amended complaint which asserted six separate counts of liability:
(1) Breach of Implied Warranty;
(2) Breach of Express Warranty;
(5) Battery; and
(6) Violation of the Federal Food, Drug and Cosmetic Act, the Federal Trade Commission Act, and the Florida Food, Drug and Cosmetic Act.
At the conclusion of plaintiffs' case, the trial Judge directed a verdict in favor of defendant as to all counts except:
(1) Breach of Implied Warranty and
Upon conclusion of the entire case, defendant renewed its motion for directed verdict as to Counts (1) and (3) the motion was denied and the cases were submitted to the jury upon the two theories of liability, breach of implied warranty and negligence. The jury was asked to return both a general verdict and answers to special interrogatories. At the charge conference the trial Judge denied plaintiffs' requested charges on the issue of implied, granting the plaintiffs an exception thereto. The special jury interrogatories requested by both parties were rejected by the Court in favor of its own. The jury returned its verdict after lengthy deliberation. By its answers to the interrogatories, the jury found:
(1) that plaintiffs' decedent had a primary cancer of the left lung;
(2) that this cancer was the cause or one of the causes of his death;
(3) that the smoking of Lucky Strike cigarettes was a proximate cause of the lung cancer; and
4) that the defendant tobacco company could not have known by February 1, 1956, (the date of diagnosis/ by the reasonable application of human skill and foresight that the users of Lucky Strike cigarettes would be endangered of contracting cancer of the lung.
A general verdict in favor of the defendant accompanied these findings. Final judgments in both cases were thereupon entered for defendant.
Both plaintiffs filed identical post-trial motions entitled, "Motion To Set Aside Judgment And General Verdict For The Defendant And To Enter Judgment For Plaintiff In Accordance With The Answers To Special Interrogatories Numbers 1, 2, and 3, Notwithstanding The General Verdict For Defendant, And To Order A New Trial On The Issues Of Damages Only, Under Rule 49 Of The Federal Rules Of Civil Procedure." as well as Motions For New Trial.
All of these post-trial motions were denied.
After the final judgments in its favor were rendered, the defendant tobacco company filed its Bill of Costs requesting that the sum of $6,301.82 be taxed as costs against the plaintiffs.
After correction, this request came on for hearing on the plaintiffs' objections thereto. Upon bearing, the District Court entered its Cost Judgment against the plaintiffs in the total amount of $1,969.74. Of this amount, some $900.00 was for expert witness fees assessed at the rate of $163.00 per expert witness. Plaintiffs have likewise appealed from the entry of these costs judgments. The appeals from the two judgments on the merits and from the cost judgments were ordered consolidated by the District Court.
Three Questions Presented:
Three questions only are presented by these appeals:
(1) Under the Florida doctrine of implied warranty are not the plaintiffs entitled to judgment as a matter of law, as requested in their post-trial motions under 49 (b), based upon the jury's special findings that the smoking of defendant's Lucky Strike cigarettes proximately caused the plaintiffs' decedent to contract a fatal case of cancer of the lung?
(2) Did not the trial Judge err in refusing to grant plaintiffs requested charges on the issue of implied warranty and in charging instead that the implied warranty of fitness which a manufacturer under Florida law is held to make depends upon the ability of the manufacturer to know about the harmful substances in its product?
(3) Did not the trial Judge err in taxing as costs against the plaintiffs a total of nine expert witness fees in the amount of $100.00 per expert, such sums being beyond the amount allowable and authorized by Federal statute?
Statement of the facts
The great mass of testimony and evidence at the trial concerned basically two factual issues:
(1) Was Edwin Green's death caused by a primary cancer of the lung, that is, a cancer originating in the lung?
(2) Do cigarettes cause lung cancer? Or specifically, was the cancer in Edwin Green's lung caused by his consumption of defendant's product, Lucky Strike cigarettes?
The trial was devoted principally to the presentation of expert medical testimony. On these issues the plaintiffs presented the testimony of eight medical doctors. Their evidence conclusively supports the jury's findings that the smoking of Lucky Strike cigarettes caused Edwin Green to incur a fatal lung cancer due to specific harmful ingredients or carcinogens contained in the cigarettes and cigarette smoke. Plaintiffs' evidence in this regard can be briefly described and summarized:
Carcinogens in Cigarettes.
By answers to interrogatories the defendant American Tobacco Company admitted that,
Plaintiffs' Medical Witness testified as follows:
Dr. Ernest L. Wynder:
Dr. Wynder is a professor of medicine at the Sloan-Kettering Institute, a Division of Cornell University. He is the head of the section of epidemiology, and devotes from sixty to seventy per cent of his time to work related to respiratory tract cancer. He has published thirty papers with respect to the effect of smoking, and supervises the work of 25 specialists on the staff of the Institute. He specializes in cancer patients and has seen approximately 1200 cancer patients.
Dr. Wynder testified that "smoking was a main factor in lung cancer" and that the "risk of a very heavy smoker to develop lung cancer is at least twenty times greater than a non-smoker"; and that "the major cause of epidermoid lung cancer in man is cigarette smoking"; that "the major factor that produces lung cancers in American males is smoking"; and that "we are convinced that smoking is a cause of king cancer". Dr. Wynder identified the chemical elements in cigarette smoke known as higher aromatic polycyclic hydro- carbons as the primary or major cancer-causing agent. He pointed out that 90 per cent of the total smoke solids which are deeply inhaled get retained in the lung, and that a majority of the tobacco smoke condensate gets condensed in the bronchi. According to his studies, 98.5% of lung cancer cases occur among smokers; women who get lung cancer smoke more; and that in a study of Seventh Day Adventists (a non-smoking sect) only two cases of epidermoid lung cancer were found and these turned out to be heavy smokers before joining the church.
Dr. DeWitt C. Daughtry:
Dr. Daughtry is the senior member of a team of physicians in Miami specializing in thoracic (or chest) surgery. He is a professor of surgery at the University of Miami Medical School; was elected president of the Southern Chapter of the American College of Chest Physicians; be- longs to numerous professional societies. He has performed 4,000 to 5,000 chest operations, and has seen approximately 2,000 cases of cancer of the lungs. He is the chief or chairman of thoracic surgery at two of Miami's largest hospitals. Dr. Daughtry testified that he personally examined and treated Edwin Green for his lung cancer; that Mr. Green had a typical case of primary cancer of the lung which had progressed beyond any hope of a cure; that the diagnosis was "very clear to us"; that there was no question in his mind because "it had the absolute characteristic appearance from the beginning, we had our proof of diagnosis, and it followed a typical course, unfortunately"; that the cancer was primary to the lungs; that is, it started in the lungs; and that cancer of the lung was the basic cause of death. Dr. Daughtry further testified that Edwin Green's lung cancer was caused by his heavy smoking; that arsenic is a carcinogen and a cause of lung cancer; that arsenic has an irritative, accumulative effect and is a factor in the production of cancer of the lung; and that the higher aromatic polycyclics in cigarette tar are carcinogenic.
Message from Kathleen Sebelius
Secretary of Health and Human Services
Why use Doctors in Cigarette Comercials? Were they implying something?
American Tobacco Company Using Subliminal Messages When
Soon after my case was denied a new trial, because of my death, the Surgeon General ordered warning labels that read: Cigarette smoking may be hazardous to your health -- to be placed on ALL cigarette packages in the United States. They knew they were wrong.
Terry’s 10-man commission met in late 1962. After 14 months of studying 7,000 articles with more than 150 consultants, the commission reported that average smokers had a nine- to tenfold risk of developing lung cancer compared to nonsmokers. Heavy smokers had at least a twenty-fold risk. The report also implicated smoking as a cause of chronic bronchitis, emphysema and heart disease.
All thanks to EDWIN M GREEN SR. THE TRUE UNSUNG HERO
"My 96 year old Grandmother Mary, (Widow of Edwin Green Sr.) told me that one of the Doctors for the defendant, American Tobacco Company, approached after the last court hearing and apologized for what he had done".
Tobacco Documents: Green vs American Tobacco
Common Adverse Effects of Tobacco Smoking
Trials: Cigarettes v. Lollipops
He Who Has The Money Has The Power...Politics At Work Again...
The very first study showing that smoking was linked to lung cancer was conducted in 1912 by American Dr. Isaac Adler who used a monograph to demonstrate the link. As early as 1928 there were studies in Germany also purporting to demonstrate a link, although the first formal statistical evidence was in 1929 by Fritz Lickint of Dresden.
View nine new warning labels cigarette makers will have to use by the fall of 2012. In the most significant change to U.S. cigarette packs in 25 years, the FDA's the new warning labels depict in graphic detail the negative health effects of tobacco use.
"Cigarettes cause cancer"