Marsee v. United States Tobacco Co.

This article is part of the Tobacco portal on Sourcewatch funded from 2006 - 2009 by the American Legacy Foundation.

Marsee v. United States Tobacco Company was an individual personal injury suit was brought by Betty Ann Marsee, individually and as Administratrix of the Estate of Marvin Sean Marsee, against United States Tobacco.

The plaintiff alleged that her son, Marvin Sean Marsee's, use of Copenhagen Snuff from age 12 to age 18 caused him to contract tongue cancer. His disease was diagnosed in April, 1983 and he died at the age of 19. She alleged that the defendant knew that its product could cause mouth cancer, and still implied that its product was safer than cigarettes. The plaintiff also charged that in addition, the company targeted children with its advertising. The plaintiff claimed product safety, design defect, failure to warn and breach of implied warranty. The plaintiff sought damages for pain and suffering, medical expenses and lost wages on the part of her son Sean, and mental anguish and burial expenses on the part of Betty Ann Marsee, his mother. She also sought punitive damages.

The defense argued assumption of risk on Sean Marsee's part and alternative cause of the disease. It also attempted to distinguish Indian studies because the tobacco used in India was different from that used in America. It challenged the animal studies raised by the plaintiffs on the grounds that they did not apply to humans. It argued that if warnings were necessary, Congress would have included snuff in its tobacco warning legislation.

The case was heard in the United States District Court for the Western District of Oklahoma (No. Civ-84-2777R) before the Honorable David L. Russell. On June 25, 1986, the judge granted in part and denied in part a motion to exclude evidence. The judge ruled that testimony of another snuff user with oral cancer was of little probative value and was probably unfairly prejudicial on the defendant on the issues of causation, pain and suffering, and advertising. The epidemiological studies of Asian populations and the connection between smokeless tobacco and oral cancer were admissible on the issue of causation given expert testimony that the differences between products were taken into account in the studies' conclusions. Studies of the effect of nitrosamines and polonium 210 on animals were probative as to causation and not prejudicial since the defendants could cross-examine the experts referring to the studies. The judge admitted the Surgeon General's reports as authoritative, but excluded the National Institute of Health (NIH) and International Agency for the Research on Cancer (IARC) reports as merely opinions and conclusions based on existing research. Evidence of the defendant's market conduct regarding products, other than the advertisements Marsee saw and relied on, was only relevant to punitive damages. Evidence of the addictive nature of smokeless tobacco was relevant to the danger of the product and the need for a warning of such danger. Evidence of net worth and earnings history was admissible for punitive damages.

Trial and verdict

After a five week trial, the jury returned a verdict for the defendants.

The United States Court of Appeals, Tenth Circuit (866 F.2d 319) affirmed the evidentiary rulings on January 10, 1989. The court held that the videotape of another disfigured oral cancer patient's deposition was overly prejudicial. The exclusion of expert testimony on the bases of the expert's information was not sufficient to overturn the verdict. It did not affect the substance of the testimony. Rebuttal testimony by physicians was cumulative with their direct testimony. Excluding it was not beyond the discretion of the judge. The judge had excluded a chart on animal testing that the court found cumulative. The IARC and NIH reports were inadmissible hearsay since they were not governmental agency reports and merely reported what speakers had said. The defendant was entitled to introduce articles showing prior notice of potential dangers of snuff because they were not offered for the truth of their content (therefore not hearsay).

Related Sourcewatch resources

• Betty Ann Marsee
• Sean Marsee
• United States Tobacco Company
• Health claims/health reassurance
• Inquiries about Smokeless Tobacco