Tony Gwynn’s widow and children filed a wrongful death suit in the Superior Court of California San Diego Central Division in May pursuant to Section 377.60(a) of the California Code of Civil Procedure.
The Gwynns’ causes of action include negligence, negligent product liability, strict product liability — design defect, strict product liability-failure to warn of defective condition, negligent misrepresentation and fraudulent concealment.
The Gwynns’ stand a strong chance of prevailing on at least some of the claims, specifically, strict product liability-failure to warn of a defective condition.
The most notable defendant named is the Altria Group, formerly known as U.S. Smokeless Tobacco Co. Other defendants include two of Altria’s campus sales representatives at San Diego State University during Gwynn’s tenure on campus.
The complaint asserts that the campus sales representatives deluged Gwynn with free samples of smokeless tobacco throughout his college career, which, allegedly, substantially contributed to his death in 2014.
With more than 3,000 hits and a career .338 batting average, Gwynn will forever be remembered as one of the game’s greatest hitters. Gwynn’s contagious smile and larger-than-life personality made him an ambassador and icon for the game of baseball. Unfortunately, Gwynn’s long-time addiction to smokeless tobacco (specifically, “dip”) led to serious health problems that ultimately cost him his life.
Gwynn began regularly using smokeless tobacco as a member of the San Diego State University baseball team in 1979 and 1980. The complaint alleges that Altria intended to get Gwynn addicted to its product to exploit his rising fame and likeability in order to make him an unwitting spokesperson.
For the next 31 years, Gwynn consumed an average of one-and-a-half to two tins of smokeless tobacco a day. Gwynn even referred to himself as a “tobacco junkie.”
According to the National Institute of Health’s figures in the complaint, Gwynn’s use equated to smoking four to five packs of cigarettes a day. Gwynn’s usage was so heavy and consistent, the signature round tin in his back pocket, or a large clump of dip in his lower right cheek/lip area is evident in almost every photograph taken of Gwynn throughout his illustrious career.
In fact, Gwynn’s addiction was so strong he required prescription drugs to counteract the withdrawal symptoms.
Gwynn’s health began deteriorating in 2010, when he was diagnosed with cancer of the right parotid salivary gland. The cancerous duct was in the very location that Gwynn placed his dip over the prior three decades. The complaint alleges that neither of Altria’s campus representatives warned Gwynn of the health or addictive risks smokeless tobacco posed.
In fact, the complaint alleges that Altria’s campus representatives instructed Gwynn to disregard symptoms like gum irritation. Moreover, the complaint opines that Altria purposely adulterated its product to increase the potency and addictiveness.
Allegedly, Gwynn was not warned that the smokeless tobacco was adulterated. It is important to note that warning labels were not required for smokeless tobacco products until a 1986 congressional mandate.
Altria’s knowledge of the harmful effects of smokeless tobacco will likely be disputed throughout the case. The complaint alleges that Altria misled the public into believing smokeless tobacco was not as addictive or dangerous as smoking cigarettes. Allegedly, Altria knew smokeless tobacco contained an exceedingly large amount of carcinogens after an American Health Foundation publication in the journal Science in 1974.
This information was sent in a May 22, 1974, letter from chief of the tobacco laboratory at the U.S. Department of Agriculture, T.C. Tso, to the vice president of the U.S. Smokeless Tobacco Co., W.B. Bennett.
Furthermore, the complaint alleges that Altria’s own scientists confirmed the presence of known carcinogens in its smokeless tobacco products. Citing “The Origin of NNN in Dark-Fired Tobacco,” by defendant U.S. Smokeless Tobacco Co.’s scientist Jeen-Lee Lin, December 1975, at 1 (“we did find that many snuffs do have a fair amount of NNN … ”).
Smokeless tobacco is an inherently dangerous product. Boeken v. Phillip Morris Inc., 2001 WL 36165083 (Cal. Superior) (Trial Order). However, assuming the allegations in the complaint are true, and Altria did, in fact, purposely adulterate its smokeless tobacco with escalated levels of sodium carbonate to increase the potency and addictiveness, Altria is probably not entitled to statutory immunity via Section 1714.45 of the California Code of Civil Procedure because immunization extends only to “unadulterated” consumer products. Boeken v. Phillip Morris Inc., 26 Cal. Rptr.3d 638, 661-62 (2005).
Moreover, Altria likely cannot escape immunity via Myers v. Phillip Morris, which held that tobacco companies were immune from liability for the 10-year period of Jan. 1, 1988, to Dec. 31, 1997, as Altria’s actions giving rise to the suit occurred prior to 1988. Myers v. Phillip Morris Inc., 50 P.3d 751, 757-58 (Cal. 2002).
Of the various claims, the Gwynns’ are most likely to prevail on their strict liability-failure to warn of a defective condition claim. California courts recognize this form of strict liability to mean that an absence of a warning on the product created an unreasonable risk to the consumer. Cavers v. Cushman Motor Sales Inc., 95 Cal.App.3d 338 (1979).
Knowledge is a factor when assessing a defendant’s duty to warn consumers, especially when the danger to be warned against is not readily accessible to the consumer through ordinary diligence. Anderson v. Owens-Corning Fiberglas Corp., 53 Cal.3d 987, 997 (1991). Moreover, actual or constructive knowledge is a requisite for strict liability failure to warn. Id.
Taking the allegations in the complaint as true, Altria had actual knowledge its product was adulterated and harmful. This knowledge imparted a duty on Altria to warn consumers that its product was adulterated, highly addictive and could lead to serious diseases.
Assuming the allegations regarding Altria’s campaign to mislead the public are true, Gwynn could not have discovered the harmfulness or manipulated the nature of the tobacco through reasonable and ordinary diligence.
It wasn’t until advanced scientific studies and experiments were conducted to reveal the true danger smokeless tobacco posed. Plus, the chemical process by which Altria manipulated its product would have been nearly impossible to uncover without advanced scientific procedures.
This problem is further compounded by the fact warning labels on smokeless tobacco products were not present until 1987.
The Gwynns seem to be on the right track to proving that Altria had a duty to warn Gwynn if Altria had actual knowledge pertaining to the risks its product posed, in addition to the fact that it is unlikely Gwynn could have uncovered these risks through ordinary and reasonable diligence, which would put the Gwynns in a strong position for victory.