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Rogers v. R.J. Reynolds Tobacco Co.6/30/2000
FOR PUBLICATION
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Plaintiff-Appellant Yvonne Rogers (Yvonne), individually and as Executrix of the Estate of her late husband, Richard Rogers (Richard), appeals an adverse jury verdict on the strict liability and wrongful death claims against cigarette manufacturers and distributors; R.J. Reynolds Tobacco Company, Philip Morris Incorporated, The American Tobacco Company, and Liggett Group, Incorporated (hereinafter referred to collectively as "Defendants").
We affirm in part, reverse in part, and remand for further proceedings in accordance with this opinion.
ISSUES
Rogers raises several issues for our review, which we consolidate and restate as follows:
1. Whether the trial court judge erred in failing to notify the parties that he advised the jury, at the jury's request during deliberations, that it could hold a press conference following the reading of the verdict.
2. Whether the trial court erred in denying Rogers' Motion for Relief from Judgment under Ind.Trial Rule 60(B) based on newly discovered evidence.
3. Whether the trial court erred in instructing the jury on the defense of incurred risk and on the meaning of "defective product."
4. Whether the trial court erred in the exclusion of certain evidence.
5. Whether the trial court erred by denying Rogers' Motion to Amend her Complaint to include a claim that the Defendants were engaged in an abnormally dangerous activity.
FACTS AND PROCEDURAL HISTORY
We adopt the facts of Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d 1045 (Ind. Ct. App. 1990), reh'g denied, as previously determined:
The evidence before the trial court at the summary judgment hearing was as follows: Richard Rogers, Yvonne's deceased husband, was born in 1935. He began smoking discarded cigarette butts when he was five or six years old. As a child he was prompted to smoke by seeing his father, his parents' friends, and movie heroes smoking. He also was aware of athletes promoting the use of cigarettes in advertisements. By the age of five he had heard smoking "stunts your growth." Record at 673. His high school coaches warned smoking affected breathing. Richard's father quit smoking when Richard was fifteen. His father told him he quit because he had experienced a "bad hacking fit." Record at 360. By the sixth grade, Richard was smoking close to a pack of cigarettes a day. At the time he graduated from high school in 1953 and during the two years he was in the army, Richard smoked two packs of cigarettes a day. When he reached his mid-twenties he was smoking about three packs a day. He continued to smoke between two and three packs of cigarettes a day until June 24, 1986, when he was able to quit after receiving a short course of medical treatment consisting of hypnosis and drug therapy. Two months later Richard was diagnosed as having lung cancer.
As early as high school Richard smoked not for pleasure, but because it was a habit he could not break. By the age of twenty-one, he knew heavy smoking posed a greater health risk than moderate smoking. In 1960, when he made his first conscientious but unsuccessful attempts to quit smoking, he realized cigarettes were "more than just habit forming"; they were something he could not "get off of." Record at 671. Starting in 1970, Richard resorted several times to staying in bed all weekend as a method of quitting smoking.
hat I was trying to do was take myself out of a situation where I did anything where I smoked. If I slept I didn't smoke. If I was in bed I didn't smoke. So th
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