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Santa Fe, NM— Jurors early this month cleared Philip Morris and Allsup’s Convenience Stores, Inc. of liability for the oral cancer that killed a New Mexico man who smoked for decades. Waters/Youngers v. Philip Morris, et al.
The New Mexico First Judicial Circuit State Court jury rejected design defect, negligent marketing, and conspiracy claims over the 2021 death of Edward “Eddie” Waters due complications related to mouth cancer.
Waters was a pack-a-day smoker by the time he was 13 and continued to smoke for decades, favoring Philip Morris’ Marlboros during that time. His family contends Philip Morris manufactured cigarettes it knew were dangerous, then conspired with other tobacco companies to hide those dangers for much of the latter health of the 20th century. The Waters' family’s claim against Allsup’s centered on selling those cigarettes.
In addition to smoking, Waters had a history of heavy drinking and poor dental hygiene, two risk factors, in addition to smoking, that can cause oral cancer. Because of that, causation — in other words, what, if any role smoking played in Waters developing mouth cancer — was a central issue at trial.
During his closing argument, the Waters family’s attorney Bruster PLLC’s Chris Johnson, reminded jurors of evidence concerning Waters’ history of smoking, as well as testimony from Dr. Vasu Divi, an expert on neck and mouth cancer, that smoking caused Waters’ disease.
“Smoking alone, and smoking in conjunction with Mr. Waters’ alcohol consumption, was the primary cause of his oral cancer,” Johnson said.
But Fasi & DiBello’s Joseph Fasi, representing Philip Morris, argued that Divi’s conclusion was not supported by sufficient evidence. Fasi told jurors Divi could not determine whether Waters’ alcohol use alone would have caused his cancer. And Fasi said Divi’s conclusions came from broad statistics rather than an individualized determination of Waters' own case.
“Dr. Divi’s opinion is no more than a crystal ball. It’s just a guess,” Fasi said. “The bottom line is: it is not good enough for the plaintiff to prove that smoking could have caused Mr. Waters’ oral cancer.”
Email Arlin Crisco at acrisco@cvn.com.
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