Posts tagged "Tobacco"

Bennett v. R.J. Reynolds Tobacco Company (Lawyers Weekly No. 09-007-18)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss                                                                                             SUPERIOR COURT CIVIL ACTION 2017-0603-BLS1     TINA BENNETT, INDIVIDUALLY and as PERSONAL REPRESENTATIVE of the ESTATE OF DAVID BENNETT   vs.   R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to LORILLARD TOBACCO CO., PHILIP MORRIS USA, INC., and GLOBAL PARTNERS, L.P.     MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS   In this action the plaintiff, Tina Bennett, alleges claims for wrongful death and civil conspiracy against the defendants[1].  She brings these claims as the Personal Representative of the Estate of David Bennett (David and the Estate).[2]  The defendants have moved to dismiss the complaint on the grounds that Ms. Bennett was appointed as the personal representative of the Estate under G.L. c. 190B, § 3-108 (4) of the Uniform Probate Code (UPC or the Code), and an appointment under that provision of the Code does not carry with it the authority to bring either a wrongful death action under G.L. c. 229, § 2 or a tort claim that belonged to the plaintiff’s decedent at the time of his death and had become an asset of the estate. [3]   BACKGROUND FACTS The following facts are taken from the allegations of the plaintiff’s amended complaint, her petition for appointment as the personal representative of David’s estate (the Petition), and the Decree and Order on Petition for Late and Limited Formal Testacy and/or Appointment with respect to the Estate issued by the Worcester Probate and Family Court dated July 26 2017. David Bennett died on March 7, 2014.  In the Petition, his residence is listed as 22 Roosevelt Dr., Southbridge, Massachusetts.  Southbridge is a town in Worcester County.  This action was first filed on February 22, 2017, although the plaintiff had not yet filed any process seeking appointment as the personal representative of the Estate by that date.  On May 16, 2017, the plaintiff filed a Petition for Late and Limited Formal Testacy and/or Appointment in the Worcester Probate and Family Court.  On July 26, 2017, that Court issued a decree allowing the Petition and appointing the plaintiff the personal representative of the Estate pursuant to G.L. c. 190B, § 3-108(4).  On August 11, 2017, the plaintiff filed an amended complaint alleging her appointment as the personal representative of the Estate.   DISCUSSION The issue presented by this case is one of first impression, both in Massachusetts and other states that have adopted the UPC:  does a personal representative appointed with the limited authority provided by § 3-108(4) of the UPC have standing to bring tort actions that were the property of the deceased and are an asset of the estate and/or an action for wrongful […]

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Posted by Massachusetts Legal Resources - February 2, 2018 at 9:29 am

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Evans v. Lorillard Tobacco Company (Lawyers Weekly No. 10-102-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11179   WILLIE EVANS, executor,[1]  vs.  LORILLARD TOBACCO COMPANY.     Suffolk.     December 3, 2012.  ‑  June 11, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ.     Tobacco.  Wrongful Death.  Negligence, Wrongful death, Duty to warn, Defective product, Adequacy of warning, Comparative, Gross negligence.  Consortium.  Parent and Child, Consortium.  Wilful, Wanton, or Reckless Conduct.  Conscious Pain and Suffering.  Consumer Protection Act, Unfair or deceptive act.  Uniform Commercial Code, Warranty.  Warranty.  Damages, Wrongful death, Loss of consortium, Punitive, Conscious pain and suffering.  Jury and Jurors.  Practice, Civil, Wrongful death, Challenge of jurors, Bias of judge, Mistrial, Dismissal, Instructions to jury.  Collateral Estoppel.  Estoppel.  Res Judicata.  Limitations, Statute of.  Evidence, Findings in another proceeding, Relevancy and materiality.       Civil action commenced in the Superior Court Department on June 28, 2004.   The case was tried before Elizabeth M. Fahey, J., and motions for judgment notwithstanding the verdict, for a new trial, for remittitur, and to alter or amend findings of fact and judgment were heard by her.   The Supreme Judicial Court granted an application for direct appellate review.     Paul F. Ware, Jr. (Kevin P. Martin & Andrew J. McElaney, Jr., with him) for the defendant.   Michael D. Weisman (Thomas Frisardi with him) for the plaintiff. The following submitted briefs for amici curiae: Robin S. Conrad, Kate C. Todd, & Lisa S. Blatt, of the District of Columbia, & Carolyn A. Pearce for Chamber of Commerce of the United States of America. Hugh F. Young, Jr., of Virginia, & David R. Geiger & Creighton Page for Product Liability Advisory Council, Inc. Richard A. Samp, of the District of Columbia, & Donald R. Pinto, Jr., for Washington Legal Foundation. Ellen Vargyas, of the District of Columbia, & Lisa G. Arrowood & Katherine A.K. Mumma for American Legacy Foundation & others. Michael B. Elefante for Tobacco Control Legal Consortium. Steven J. Phillips & Victoria Phillips, of New York, & Christopher Weld, Jr., Edward Foye, David C. Strouss, & Michael A. Lesser for Kathleen Donovan & another. Emily G. Coughlin & Cynthia M. Kopka for Massachusetts Defense Lawyers Association. Timothy C. Kelleher, III, & J. Michael Conley for Massachusetts Academy of Trial Attorneys.     GANTS, J.  Marie R. Evans (Marie) died in 2002, at the age of fifty-four, from small cell lung cancer caused by smoking cigarettes.  […]

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Posted by Massachusetts Legal Resources - June 11, 2013 at 6:48 pm

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