JOCELYN TOMPKIN, Administratrix with will annexed of the Estate of David Tompkin,… v. PHILIP MORRIS USA, INC., formerly known as PHILIP MORRIS, INC.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0091P (6th Cir.)
File Name: 04a0091p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOCELYN TOMPKIN,
Administratrix with will
annexed of the Estate of
David Tompkin, deceased,
Plaintiff-Appellant/
Cross-Appellee,
v.
PHILIP MORRIS USA, INC.,
formerly known as PHILIP
MORRIS, INC.; LIGGETT
GROUP, INC.; LORILLARD
TOBACCO COMPANY; THE
AMERICAN TOBACCO
COMPANY,
Defendants-Appellees/
Cross-Appellants.
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Nos. 02-3267/3309
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 94-01302—David D. Dowd, Jr., Senior District Judge.
Argued: September 19, 2003
Decided and Filed: March 30, 2004
2 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
1To mpkin sued both in her ind ividual capacity and as executrix of
her husband’s estate. The original defendants were Philip Morris, Inc.,
Liggett Group, Inc., Lorillard To bacco C omp any, The American Tobacco
Comp any, and Lorillard, Inc. Tompkin voluntarily dismissed her case
against Lorillard, Inc.
Before: SUHRHEINRICH, COLE, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: A. Russell Smith, A. RUSSELL SMITH LAW
OFFICES, Akron, Ohio, for Appellant. Walter L. Cofer,
SHOOK, HARDY & BACON, Kansas City, Missouri, for
Appellees. ON BRIEF: A. Russell Smith, A. RUSSELL
SMITH LAW OFFICES, Akron, Ohio, for Appellant. Walter
L. Cofer, Craig Proctor, SHOOK, HARDY & BACON,
Kansas City, Missouri, Mary M. Bittence, Diane P. Chapman,
BAKER & HOSTETLER, Cleveland, Ohio, Kenneth J.
Walsh, Tyler L. Mathews, MCDONALD HOPKINS,
Cleveland, Ohio, Patrick M. McLaughlin, Colin R. Jennings,
MCLAUGHLIN & MCCAFFREY, Cleveland, Ohio, James
E. Milliman, Benjamin S. Shively, MIDDLETON &
REUTLINGER, Louisville, Kentucky, Michael J. Suffern,
DINSMORE & SHOHL, Cincinnati, Ohio, for Appellees.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Plaintiff Jocelyn Tompkin sued
the defendant tobacco companies, alleging that her husband,
David Tompkin, died as a result of smoking cigarettes sold by
the defendants.1 Tompkin asserted statutory and common
law products liability claims. After this court reversed the

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Morris, Inc., et al.
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district court’s grant of summary judgment in favor of the
defendants, the case proceeded to trial. A jury found for the
defendants, and Tompkin now appeals.
Tompkin raises three issues on appeal. Specifically, she
claims that the district court erred by (1) admitting “surprise”
testimony from a defense expert that there was an
“association” between Mr. Tompkin’s asbestos exposure and
an elevated risk of lung cancer, (2) excluding certain evidence
that she proffered (in particular, evidence concerning research
and public-relations groups associated with the tobacco
industry, evidence concerning non-party tobacco companies,
evidence from prior tobacco-related proceedings, and
evidence concerning the defendants’ conduct after the date
that her husband quit smoking), and (3) refusing to charge the
jury on her “consumer expectations” claim under the Ohio
Products Liability Act. Because Tompkin has not shown that
she was prejudiced by any of these alleged errors, we affirm
the judgment of the district court.
BACKGROUND
1. David Tompkin’s History of Smoking and Lung Cancer
David Tompkin began smoking in 1950, at the age of
sixteen, and he quit in 1965, at the age of thirty-one. His
smoking history was as follows:
Year Amount and Brand
1950-1951 4 to 6 Old Gold cigarettes per day
1951-1954 4 to 6 Philip Morris cigarettes per day
1954-1957 6 to 8 Pall Mall cigarettes per day
1957-1959 10 Chesterfield cigarettes per day
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Morris, Inc., et al.
Nos. 02-3267/3309
2During the relevant time period, The American Tob acco Com pany
made Pall Mall and Herbert Tareyton cigarettes, Liggett Group, Inc. made
Lark and Chesterfield cigarettes, Lorillard Tobacco C ompany made Old
Go ld and K ent cigarettes, and Philip Mo rris, of course, made Philip
Morris cigarettes.
1959-1961 1.5 packs of Herbert Tareyton cigarettes
per day
1961-1964 Between 2 and 3 packs of Kent cigarettes
per day
1964-1965 Between 2 and 3 packs of Lark cigarettes
per day.2
Mr. Tompkin was exposed to asbestos and other pollutants
in the course of his career. After graduating from high school
in 1952, he worked at Stalwart Rubber Company in the curing
room. From 1953 to 1957, he worked as a bricklayer
apprentice, and from 1957 to 1984, he worked as a bricklayer.
In 1984, he started a construction company. During this
work, he was “heavily exposed” to asbestos, and he was
exposed to brick dust, cement dust, mortar, lime, and rubber-
curing effluvia. Finally, Mr. Tompkin had a family history of
cancer.
On June 26, 1992, Mr. Tompkin was diagnosed with lung
cancer. He died on February 12, 1996, at the age of 61.
2. Tompkin’s Lawsuit and the Trial
On June 24, 1994, Tompkin and her husband, then still
alive, filed suit against the defendants in the United States
District Court for the Northern District of Ohio. Tompkin
was substituted for her husband, as administratrix of his
estate, after his death. In her amended complaint, Tompkin
asserted the following claims: (1) strict liability; (2)
negligent, willful and wanton misconduct; (3) fraud and

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Morris, Inc., et al.
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misrepresentation; (4) strict liability for misrepresentation; (5)
express warranty; (6) implied warranty; (7) conspiracy and
concerted action; and (8) derivative claims for wrongful death
and loss of consortium.
On August 3, 1998, the district court granted summary
judgment in favor of the defendants. It held that Tompkin’s
first five claims were governed by the Ohio Product
Liabilities Act (“OPLA”) and that OPLA’s “common
knowledge” doctrine—which bars claims for damages from
risks which are “common knowledge”—applied to these
claims. Tompkin v. Am. Brands, Inc., 10 F. Supp. 2d 895,
899-905 (N.D. Ohio 1998). It also held that OPLA
preempted breach of implied warranty claims and that
Tompkin failed to establish that her husband relied on any
statements by the defendants, as required to sustain her fraud
and conspiracy claims. Id. at 900, 909-10. Finally, it held
that, by definition, Tompkin’s derivative claims failed when
the underlying claims failed. Id. at 911.
On July 24, 2000, this court reversed, in part, the district
court’s grant of summary judgment. We concluded that
Tompkin had established a genuine issue of material fact on
the extent of “common knowledge” of the nexus between
smoking and lung cancer, and we reversed the grant of
summary judgment on her OPLA claims. Tompkin v. Am.
Brands, 219 F.3d 566, 571-75 (6th Cir. 2000). Additionally,
we reversed the district court’s holding that OPLA preempted
Tompkin’s breach of implied warranty claim. Id. at 576.
However, we affirmed the district court’s holding that OPLA
preempted her negligent, willful and wanton misconduct
claim. Id. at 575.
The trial commenced on September 25, 2001, and
comprised approximately seven days of testimony. At trial,
Tompkin advanced a “failure to warn” claim under OPLA, a
“consumer expectations” claim under OPLA, and a breach of
implied warranty claim. However, the district court refused
6 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
to instruct the jury on Tompkin’s “consumer expectations”
claim, reasoning that “there was no testimony” to support the
claim.
At trial, Tompkin presented fourteen witnesses, including
family and close friends of her husband. Tompkin and two of
her daughters testified about their relationships with
Mr. Tompkin and about the effect of his cancer on him and
his family. Similarly, Mr. Tompkin’s business partner, and
long-time coworker, testified about Mr. Tompkin’s work and
his smoking habits. Finally, in a videotaped deposition,
Mr. Tompkin testified about his history of smoking, his (lack
of) awareness of the dangers of smoking, his medical history,
his history of employment, and the impact of his cancer on his
personal and professional life.
Tompkin also presented testimony from the physicians who
treated her husband. Mr. Tompkin’s family physician, his
two oncologists, and his surgeon testified about the diagnosis
and treatment of his lung cancer. Additionally, his oncologist
opined, as the treating physician, not as an expert witness,
that cigarette smoking caused Mr. Tompkin’s lung cancer.
Tompkin also presented expert testimony on her “failure to
warn” claim, the defendants’ “common knowledge” defense,
and the cause of Mr. Tompkin’s cancer. Dr. Alan Blum, a
professor of family medicine at the University of Alabama
School of Medicine, Tuscaloosa branch, testified in support
of Tompkin’s failure to warn claim. A self-styled historian,
he traced the history of medical literature on the connection
between smoking and lung cancer. He concluded that by
1939 “the case was closed that smoking was the leading cause
of lung cancer.” Based on this conclusion, he opined that (1)
the defendants “knew in 1939, or in the exercise of reasonable
care should have known in 1939, about a risk that was
associated with their cigarettes and lung cancer,” and (2) the
defendants “should have issued warnings or instructions in
1939 as to the risks of smoking tobacco, particularly

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Morris, Inc., et al.
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cigarettes, and insofar as its causing lung cancer is
concerned.”
Tom Smith, the director of the general social survey at the
National Opinion Research Center at the University of
Chicago, testified in response to the defendants’ common
knowledge defense. He reviewed polling conducted between
1950 and 1965 on the connection between smoking and lung
cancer. In particular, he described six Gallup polls which,
averaged together, showed that only 45% of the respondents
believed that smoking caused lung cancer. Based on this
investigation, he opined that “the ordinary person with
ordinary knowledge common to the community” did not
recognize “the nature and the extent of the link between
smoking cigarettes and lung cancer between the years 1950
and 1965.” He explained that “based on the particular data
here from Gallup as well as other data we’ve looked at about
what causes cancer and people’s beliefs about what harms
come from smoking, the data clearly indicates that people did
not make a strong link in that period between smoking and
lung cancer.”
Dr. Joseph Tomashefski, a pathologist, testified about the
cause of Mr. Tompkin’s cancer. He testified that, in
connection with the autopsy of Mr. Tompkin, he reviewed
Mr. Tompkin’s history of smoking and ordered an asbestos
fiber burden test on tissue samples, which revealed “a high
load of asbestos fibers in [Mr. Tompkin’s] lungs.” Based on
this information, he concluded that Mr. Tompkin’s cancer
was “due to the combined effect of his cigarette smoking and
his exposure to asbestos.” He explained that “asbestos
interacts with cigarette smoking by a process that we call
synergy” whereby “they have an effect which is beyond an
additive effect of each of their potencies.” He also testified
that asbestos was “a relatively weak carcinogen,” and that he
had never seen a case of lung cancer involving asbestos alone
without any history of smoking.
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Morris, Inc., et al.
Nos. 02-3267/3309
Dr. David Sidransky, the Director of Head, Neck, and
Cancer Research at Johns Hopkins University, also testified
about the cause of Mr. Tompkin’s cancer. Sidransky
performed a “Loss of Heterozygosity” analysis (an “LOH”
analysis) on tissue samples from Mr. Tompkin. He explained
that chromosomal changes occur in cancerous cells (including
the loss of chromosomal arms that contain growth
suppressing genes) and that certain of these changes occur
much more frequently in cancer victims who have smoked
than in cancer victims who have not smoked. Applying LOH
analysis, he determined that many of these chromosomal
changes associated with smoking had occurred in cancer cells
from Mr. Tompkin. Based on this finding, he opined that
“smoking was a major contribution to [Mr. Tompkin’s] lung
cancer.”
Finally, Dr. John Burke, a retired professor of economics,
testified about Mr. Tompkin’s loss of future earning capacity.
The defendants presented four witnesses, all of whom were
experts. Dr. Joan Hoff, a professor of history at Ohio
University, testified in support of the defendants’ common
knowledge defense. At the request of defense counsel, she
had researched discussions of smoking and lung cancer in
national magazines, regional newspapers, legislative
materials, and educational materials during the period from
1950 to 1965 to determine “commonly held attitudes or
common knowledge or common information available to the
average person about the link between lung cancer and
cigarette smoking.” Based on her research, she opined that
“the link between cigarette smoking and lung cancer was
common knowledge” in the United States and, in particular,
in Ohio between 1950 and 1965.
The remaining defense witnesses concentrated on the
proximate cause issue. Dr. David Parkinson, a professor of
medicine at the State University of New York at Stony Brook
and Director of the Long Island Occupational and

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Morris, Inc., et al.
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Environmental Health Center, testified about Mr. Tompkin’s
exposure to various carcinogens. He asserted that a smoker
can reduce his risk of lung cancer by quitting smoking, but
that “asbestos is very resistant to elimination by the body, and
it is not possible to cut down the risk from cumulative
asbestos exposure.” Based on his review of Mr. Tompkin’s
deposition and medical records, he opined that Mr. Tompkin
was likely exposed to asbestos and other carcinogens while
working in the curing department at Stallworth Rubber
Company and while working as a bricklayer on certain
construction sites. He further opined that “the most
significant exposure that induced Mr. Tompkin’s lung cancer
was his asbestos exposure” and that, “because of the small
amount of cigarette smoking, and the length of time that
passed after he had stopped smoking,” smoking was not a
proximate cause of his cancer.
Dr. Edwin Bradley, a biostatistician, testified about the
epidemiological association between lung cancer and Mr.
Tompkin’s asbestos exposure and smoking. Using data
collected by the American Cancer Society, he compared the
incidence of lung cancer in a “cohort” of individuals with
smoking histories similar to Mr. Tompkin to the incidence of
lung cancer in a “cohort” of individuals with no history of
smoking. Using this same data, he also compared the
incidence of lung cancer in a “cohort” of individuals with
smoking histories and asbestos exposure similar to
Mr. Tompkin with a “cohort” of individuals with similar
asbestos exposure but who never smoked. Finally, using the
same data, he compared the incidence of lung cancer in a
“cohort” of individuals with smoking histories and asbestos
exposure similar to Mr. Tompkin with the incidence of lung
cancer in a “cohort” of individuals with no asbestos exposure.
He then calculated the “relative risk” of lung cancer from
Mr. Tompkin’s level of smoking and asbestos exposure,
meaning the ratio of the incidence of the disease in the
“cohorts” with Mr. Tompkin’s smoking history and/or
10 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
3Bradley further testified that smoking and asbestos exposure had an
“additive” effect— meaning that an individual’s risk of disease is simply
the sum of the risks from the respective exposures— but no t a
“multiplicative” or “synergistic” effect— meaning that the exposures act
“together to make it worse than it would be if it was exposed to either one
or the sum of the 2.”
4He was unable to offer a precise figure because the extent of Mr.
To mpkin’s asbestos exposure was not known. 2.65 represented the
relative risk (to non-smokers) of any asbestos exposure, as calculated by
Bradley using the American Cancer Society data . 5.91 represented the
relative risk of lung cancer from a level o f asbestos exp osure sufficient to
cause asbestosis, a figure derived from a published study. Bradley
testified that, because Mr. Tompkin had an asbestos fiber burden
consistent with asbestosis, “his relative risk in my opinion would be
asbestos exposure to the incidence of the disease in the non-
smoking “cohort” and the “cohort” without asbestos
exposure. Bradley explained that a relative risk of 1.0 is the
baseline—there is no increased, or decreased, risk from the
exposure—and that the relative risk must be at least 2.0 to
support a conclusion that the exposure is “associated” with
the disease. He further explained that this method of analysis
establishes only a statistical “association”; it does not
establish individual causation.
Bradley concluded that Mr. Tompkin’s cancer was not
“associated” with smoking but was “associated” with asbestos
exposure. He determined that the relative risk from smoking
was 1.59, and, based on this figure, he opined that
Mr. Tompkin’s “smoking history was not associated with an
increased risk of developing lung cancer.” Similarly, he
determined that the relative risk of smoking to individuals
with asbestos exposure was 1.56, and, based on this figure, he
opined that Mr. Tompkin’s smoking did not add to his risk of
developing lung cancer “[a]bove that risk that he would have
had from asbestos exposure alone.”3 Conversely, he
determined that the relative risk from asbestos exposure was
between 2.65 and 5.91,4 and he opined that there was “an

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Morris, Inc., et al.
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somewhere between the 2.65 and 5.91 [sic], probably closer to the 5.91
level.”
5Additiona lly, he asserted that, after 15 to 20 years of non-smoking,
a former smoker’s risk of lung cancer returns “almost down to baseline or
down to a normal population.” He also noted that P53 and K-Ras studies
performed by Dr. Tomashefski, which test for genetic changes associated
with smo king, were negative.
association between the exposure of the type to asbestos that
Mr. Tompkin had [and] an elevated risk of developing lung
cancer.”
Tompkin objected to Bradley’s testimony concerning the
relative risk from asbestos exposure, and to the use of
demonstrative exhibits in connection with this testimony, on
the ground that Bradley had not disclosed this information in
his expert report. The district court overruled Tompkin’s
objection.
Finally, Dr. Peter McCue, the chief of anatomic pathology
and a professor of pathology at Thomas Jefferson University
Hospital in Philadelphia, testified about his examination of
tissue samples from Mr. Tompkin. He testified that he did
not detect any of the normal smoking-related changes, such
as damage to the bronchial epithelium, pigment-laden
macrophages, and mucous lining hyperplasia, in Mr.
Tompkin’s pathology specimens.5 Conversely, he testified
that he did detect asbestos fibers, quartz dust, and mineral
fibers, as well as asbestos-induced disease process, in the
specimens. Based on this analysis, he opined that Mr.
Tompkin’s cancer “most likely resulted from his occupational
exposure to silicates and asbestos” and that his examination
revealed “no pathological or biochemical evidence . . . that
showed that he had an effect from cigarette smoking.”
The jury found for the defendants, and on October 9, 2001,
judgment was entered in favor of the defendants. On
12 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
October 22, 2001, Tompkin moved for a new trial, arguing
that the district court had erred by (1) permitting “surprise”
testimony from Dr. Bradley, (2) excluding evidence
concerning organizations affiliated with the tobacco industry,
(3) excluding evidence concerning non-party tobacco
companies, (4) excluding evidence from prior tobacco-related
cases, (5) excluding evidence concerning punitive damages
and failing to charge the jury on punitive damages, (6)
excluding evidence concerning post-1965 activities of the
defendants, and (7) failing to charge the jury on Tompkin’s
consumer expectations theory under OPLA.
On January 30, 2002, the district court denied Tompkin’s
motion for a new trial. The court concluded that it had erred
by failing to sustain Tompkin’s timely objections to (1)
Dr. Bradley’s testimony that asbestos was “associated” with
Mr. Tompkin’s cancer because, the court determined, the
testimony directly conflicted with Dr. Bradley’s statement in
his expert report that “it is not possible to determine to a
reasonable degree of scientific certainty which of the risk
factors, smoking or asbestos exposure (or other risk factors),
contributed to Mr. Tompkin’s lung cancer,” and (2) the
introduction of exhibits—specifically, three bar graphs that
illustrated Dr. Bradley’s testimony concerning the relative
risk of lung cancer associated with Mr. Tompkin’s asbestos
exposure—which were not identified in Dr. Bradley’s expert
report and which contained information not disclosed in the
expert report. However, the court concluded that its errors
did not justify a new trial, reasoning that the errors were not
prejudicial as Dr. McCue’s testimony “was far more
devastating than Dr. Bradley’s testimony.” The court’s
memorandum opinion denying Tompkin’s new trial motion
did not discuss Tompkin’s other arguments.
On March 1, 2002, Tompkin filed a timely notice of appeal.

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ANALYSIS
1. Standard of Review
This court reviews a district court’s denial of a motion for
a new trial under an abuse of discretion standard. Tobin v.
Astra Pharm. Prods., Inc., 993 F.2d 528, 542 (6th Cir. 1993).
“Abuse of discretion is defined as a definite and firm
conviction that the trial court committed a clear error of
judgment.” Id. (quoting Logan v. Dayton Hudson Corp., 865
F.2d 789, 790 (6th Cir. 1989)). A district court abuses its
discretion when it relies on clearly erroneous findings of fact,
or when it improperly applies the law or uses an erroneous
legal standard. Romstadt v. Allstate Ins. Co., 59 F.3d 608,
615 (6th Cir. 1995).
Moreover, a motion for a new trial will not be granted
unless the moving party suffered prejudice. Morales v. Am.
Honda Motor Co., Inc., 151 F.3d 500, 514 (6th Cir. 1998);
Erskine v. Consol. Rail Corp., 814 F.2d 266, 272 (6th Cir.
1987) (holding that a new trial will not be granted on the
ground that surprise evidence was admitted unless the moving
party was prejudiced). “Even if a mistake has been made
regarding the admission or exclusion of evidence, a new trial
will not be granted unless the evidence would have caused a
different outcome at trial.” Morales, 151 F.3d at 514. “The
burden of showing harmful prejudice rests on the party
seeking the new trial.” Tobin, 993 F.2d at 541; see also
Erksine, 814 F.2d at 272 (“In order to prevail on his motion
for a new trial, plaintiff must show that he was prejudiced and
that failure to grant a new trial is inconsistent with substantial
justice.” (citation omitted)).
14 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
2. The District Court’s Admission of the “Surprise”
Testimony of Dr. Bradley
The district court did not abuse its discretion in denying
Tompkin’s motion for a new trial based on “surprise”
testimony by Dr. Edwin Bradley, a defense expert on the
causation issue. The district court properly concluded that
Tompkin did not meet her burden of demonstrating prejudice
from the admission of Bradley’s testimony.
Tompkin argues that Bradley failed to disclose in his expert
report his testimony that there was an “association” between
Mr.Tompkin’s level of asbestos exposure and lung cancer. In
his expert report, Bradley wrote, in relevant part,
12. Epidemiology addresses whether a disease is
statistically associated with an exposure in a
population, not in individuals. The question of
individual causation, sometimes referred to as
specific causation, is beyond the domain of the
science of epidemiology. Even in populations, the
existence of a statistical association does not
necessarily mean that two events are causally
related. Epidemiology provides information
relevant to reaching a conclusion regarding general
association, but cannot alone prove causation in an
individual.
* * *
14. Statistical associations between exposure and
disease (or mortality) from epidemiologic studies are
usually measure as relative risks (“RRs”) or odds
ratios (“ORs”). A relative risk is defined as the ratio
of the incidence of disease (or mortality) in the
exposed group to the incidence of disease (or
mortality) in the unexposed group. For example, if
the incidence of cancer among the exposed group is

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Morris, Inc., et al.
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10 in 100 and the incidence among the unexposed
group is 5 in 100, then the relative risk is 2.0
(10/100 ÷ 5/100). . . .
* * *
17. I regard relative risks below 2.0 as too weak to
support a conclusion that an exposure is associated
with a disease.
* * *
33. I have performed generally accepted statistical
analyses of the data in this file addressing the
question of whether there is an increased risk of lung
cancer in the group of males (“cohort”) enrolled in
[a large epidemiological study conducted by the
American Cancer Society called Cancer Prevention
Study II (“CPS-II”)] who had quit smoking between
the ages of 26 and 34, had remained abstinent for
between 27 and 35 years, and had a smoking history
of 17 to 48 pack-years before quitting. This
smoking history is similar to that of Mr. Tompkin,
who smoked between 1950 and 1965, at which time
he quit.
34. . . . The comparison group consisted of males in the
CPS-II study who had never smoked.
35. Based on this analysis, I will testify that I could find
no statistically significant association for the CPS-II
cohort described in paragraph 33 above and an
increased risk of lung cancer. I will also testify that
the relative risk I calculated, in addition to not being
statistically significant, was less than 2.0.
Consequently, an attributable risk calculation shows
that more probably than not, smoking is not related
to lung cancer for this cohort. Further, I will testify
16 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
that there is no statistical association between
Mr. Tompkin’s smoking from 1950 to 1965 and an
increased risk of death from lung cancer in 1996. It
is a general scientific principle that when no
statistically significant association is found between
an exposure and a disease, the question of causation
is moot.
* * *
39. I expect to opine to a reasonable degree of scientific
certainty that the epidemiological studies on
asbestos exposure and cigarette smoking do not
establish that the best model for describing the
relative risks is multiplicative. . . .
40. I also examined the CPS-II data file to investigate
the association between asbestos exposure, smoking
and lung cancer.
41. I have performed generally accepted statistical
analyses of the data in this file addressing the
question of whether there is an increased risk of lung
cancer in the group of males (“cohort”) enrolled in
CPS-II who indicated on the CPS-II questionnaire
that they had been exposed to asbestos and had quit
smoking for between 27 and 35 years. This
smoking and asbestos exposure history is similar to
that of Mr. Tompkin.
42. . . . The comparison cohort consisted of males in the
CPS-II study who indicated on the CPS-II
questionnaire that they had been exposed to
asbestos, and had never smoked.
43. Based on this analysis, I will testify that I could find
no statistically significant association for the CPS-II
cohort described in paragraph 41 above and an

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Morris, Inc., et al.
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increased risk of lung cancer. I will also testify that
the relative risk I calculated, in addition to not being
statistically significant, was less than 2.0.
Consequently, an attributable risk calculation shows
that more probably than not, smoking is not related
to lung cancer for this cohort. Further, I will testify
that even with consideration of his asbestos
exposure, there is no statistical association between
Mr. Tompkin’s smoking from 1950 to 1965 and an
increased risk of death from lung cancer in 1996. It
is a general scientific principle that when no
statistically significant association is found between
an exposure and a disease, the question of causation
is moot.
44. Based on further analyses of the CPS-II data, I will
testify that the joint risk of asbestos exposure and
smoking on the development of lung cancer is best
described by an additive, not multiplicative, model.
45. I will also testify that it is not possible to determine
to a reasonable degree of scientific certainty which
of the risk factors, smoking or asbestos exposure (or
other risk factors), contributed to Mr. Tompkin’s
lung cancer, when the only available data are from
epidemiological studies. The difficulties of
disentangling the relationship among several factors
while attempting to control for confounding have
been recognized in the scientific community.
J.A. at 756-61 (emphasis in original).
At trial, Bradley opined that there was “an association
between the exposure of the type to asbestos that
Mr. Tompkin had [and] an elevated risk of developing lung
cancer.” J.A. at 2379. He testified that, using the data in
CPS-II, he calculated the relative risk of developing lung
cancer due to asbestos exposure alone—i.e., he measured a
18 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
cohort of persons who never smoked but who were exposed
to asbestos against a cohort of persons who never smoked and
who were never exposed to asbestos—as 2.65. J.A. at 2374.
He further testified that the medical literature sets the relative
risk of lung cancer for patients who have asbestosis, and thus
have a high level of asbestos exposure, at 5.91. J.A. at 2376.
Thus, he concluded that Mr. Tompkin’s relative risk of
developing lung cancer from asbestos exposure was between
2.65 and 5.91; and, as a pathological exam performed by Dr.
Tomashefski, one of the plaintiff’s experts, revealed a fiber
burden in Mr. Tompkin’s lungs consistent with asbestosis, his
relative risk was “probably closer to the 5.91 level.” J.A. at
2375-77.
In connection with this testimony, Bradley used three
exhibits, each titled “Analysis of Mr. Tompkin’s Risk
Profile,” which illustrate his findings on Mr. Tompkin’s
relative risk of developing lung cancer from smoking and
from asbestos exposure. The first exhibit was a bar graph
depicting Mr. Tompkin’s relative risk from smoking as 1.59,
a figure which the graph describes as “Not Statistically
Significant.” J.A. at 837. The second exhibit was a bar graph
depicting Mr. Tompkin’s relative risk from smoking as 1.59
and his relative risk from asbestos as 2.65, figures which the
graph describes as “Not Statistically Significant” and
“Statistically Significant,” respectively. J.A. at 838. The
third exhibit was a bar graph depicting Mr. Tompkin’s
relative risk from smoking as 1.59, his relative risk from
asbestos as 2.65, and his relative risk from asbestosis as 5.91,
figures which are labeled “Not Statistically Significant” and
“Statistically Significant,” respectively. J.A. at 839. In the
second and third exhibits, the bar representing Mr. Tompkin’s
relative risk from smoking is colored blue, and the bars
representing his relative risk from asbestos and asbestosis are
colored red. J.A. at 838-39.
During the trial, the district court overruled Tompkin’s
objection to Bradley’s testimony concerning the relation

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Morris, Inc., et al.
19
between Mr. Tompkin’s exposure to asbestos and his lung
cancer. After the verdict, the district court denied Mr.
Tompkin’s motion for a new trial, which motion contended,
in part, that Bradley had not disclosed in his expert report his
testimony that Mr. Tompkin’s asbestos exposure gave him an
elevated risk of developing lung cancer. In denying the
motion, the district court concluded that it had erred in
overruling Tompkin’s objection, as the defendants had
violated Federal Rule of Civil Procedure 26(a)(2)(B) by not
disclosing the exhibits and the related testimony in Bradley’s
report. However, the court further concluded that its error
was not prejudicial, given the strength of the defendants’
other witnesses. Specifically, the court found
the testimony of the defense witness, Dr. McCue, was
well documented and supported by his examination of
the slides of the decedent’s lung tissue and also
supported by the negative findings of Dr. Tomashefski as
to the P53 and K-Ras genes. In the Court’s view, that
testimony, which followed Dr. Bradley’s testimony, was
far more devastating than Dr. Bradley’s testimony about
epidemiology associations.
J.A. at 874.
On appeal, Tompkin challenges the admission of Bradley’s
testimony that Mr. Tompkin’s relative risk of developing
cancer from asbestos exposure was between 2.65 and 5.91
and the use of the exhibits in connection with this testimony.
She contends that, as the district court concluded, the
defendants violated Federal Rule of Civil Procedure
26(a)(2)(B) by not disclosing this testimony and the exhibits
in Bradley’s expert report. She argues that this testimony was
directly inconsistent with Bradley’s report, which stated,
among other things, that “it is not possible to determine to a
reasonable degree of scientific certainty which of the risk
factors, smoking or asbestos exposure (or other risk factors),
contributed to Mr. Tompkin’s lung cancer.” J.A. at 761.
20 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
Further, she asserts that she was prejudiced by this “surprise”
testimony because her counsel were unable to prepare
adequately for cross-examination of Bradley and were unable
to present responsive testimony, and because Bradley’s
testimony “dramatically bolstered defendants’ theory of
causation” (“essentially the only defense in the case”).
Appellant’s Br. at 11, 13.
The defendants counter that Bradley properly disclosed the
testimony in his expert report. They note that paragraph 36
of the report states that Bradley “will testify about the
epidemiological studies on asbestos exposure, cigarette
smoking and lung cancer,” and that paragraph 41 advised that
Bradley analyzed a cohort with a smoking and asbestos
history similar to that of Mr. Tompkin. J.A. at 760. They
also argue that paragraph 45 is not inconsistent with
Bradley’s testimony, explaining that paragraph 45 simply
states that an epidemiologist cannot offer an opinion as to
which risk factor caused Mr. Tompkin’s cancer, and that
Bradley simply testified to a statistical association between
Mr. Tompkin’s cancer and asbestos exposure.
The defendants argue, in the alternative, that any violation
of Rule 26(a) was not prejudicial. They contend that the
testimony was disclosed to Tompkin during Bradley’s
deposition and in Bradley’s reliance materials. They also
contend that Tompkin’s was not harmed by the admission of
the testimony, given that Tompkin admitted that asbestos
contributed to her husband’s cancer and that two other
defense experts, Drs. McCue and Parkinson, testified that
asbestos was a cause of Mr. Tompkin’s cancer.
Rule 26(a) of the Federal Rules of Civil Procedure requires
an expert witness to provide a written reporting containing,
inter alia, (1) “a complete statement of all opinions to be
expressed and the basis and reasons therefor,” and (2) “any
exhibits to be used as a summary of or support for the
opinions.” Fed. R. Civ. P. 26(a)(2)(B). Rule 37 provides that

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6Nor does Brad ley’s expert report list the exhibits, as Rule 26 (a) also
requires. Fed . R. Civ. P. 26 (a)(2)(B).
“[a] party that without substantial justification fails to disclose
information required by Rule 26(a) . . . is not, unless such
failure is harmless, permitted to use as evidence at trial . . .
any witness or information not so disclosed.” Fed. R. Civ. P.
37(c)(1). Rule 37 further provides that “[i]n addition to or in
lieu of this sanction, the court . . . may impose other
appropriate sanctions.” Id.
Clearly, the defendants failed to comply with Federal Rule
of Civil Procedure 26(a). It is true the testimony in question
was arguably consistent with paragraph 45 of Bradley’s
report. On one reading, paragraph 45 states that it is not
possible to determine from epidemiological studies whether
smoking or asbestos was the medical cause of Mr. Tompkin’s
cancer, whereas, in the challenged testimony, Bradley opined
that there was a statistical association between lung cancer
and Mr. Tompkin’s level of asbestos exposure. In any event,
the report does not state that Bradley will testify that Mr.
Tompkin had an elevated risk of developing lung cancer due
to his exposure to asbestos (let alone that his relative risk was
between 2.65 and 5.91), and Rule 26(a) would require such a
statement.6 Paragraphs 36 through 43, which the defendants
argue disclose the testimony, merely state (1) in general
terms, that Bradley will testify about the association between
asbestos exposure, cigarette smoking, and lung cancer, (2)
that Bradley will testify that an additive, rather than a
multiplicative, model best describes the joint risk of smoking
and asbestos exposure, and (3) that Bradley will testify that
the relative risk of Mr. Tompkin’s level of smoking to
someone who has been exposed to asbestos is less than 2.0.
J.A. at 760-61. None of this information alerts the reader that
22 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
7The defendants have not cited any authority supporting their
argument that, by turning over materials supporting his testimony as part
of his Rule 26(a )(2)(A) reliance materials (i.e., the “data or other
information considered by the witness in forming the opinions”), Bradley
was relieved of the additional obligation under Rule 26(a)(2)(A) to
provide “a complete statement of all opinions to be expressed.” Nor,
desp ite their insistence to the contra ry, have the defendants identified any
deposition testimony in which Bradley reveals that he will testify that Mr.
To mpkin had an increased risk of developing lung cancer due to his
asbestos exposure.
8Dr. Parkinson is a professor of medicine at the State University of
New York and the director of the Long Island Occupational and
Environmental Health Center. J.A. at 2278. He testified that he helped
write the State of California’s asbestos exposure standard, that he runs a
program for union workers in the building trades who have been exposed
to asbestos, and that he has “a very good working knowledge of the
epidemiology of asbestos-related disease.” J.A. at 2278, 2283, 2285,
2289
Bradley will testify about the increased risk of lung cancer
from asbestos exposure.7
However, Tompkin has not shown that the district court’s
finding that she was not prejudiced by the admission of the
testimony was clearly erroneous. Other defense experts
testified about the connection between Mr. Tompkin’s cancer
and his asbestos exposure—in terms of specific causation
rather than mere “associations.” Dr. Parkinson, a physician
specializing in occupational medicine,8 opined that “the most
significant exposure that induced Mr. Tompkin’s lung cancer
was his asbestos exposure over the many years he was
exposed to asbestos” and that smoking was not a proximate
cause of Mr. Tompkin’s lung cancer. J.A. at 2297, 2306.
Dr. Peter McCue, a surgical pathologist, testified that he
examined tissue samples from Mr. Tompkin’s lungs and
found evidence of damage from exposure to asbestos and
mineral fibers but no evidence of damage from smoking. J.A.
at 2520-22, 2527, 2531-34. He opined that Mr. Tompkin’s

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9The experts also testified that damage to the lungs from sm oking is
reversible but damage from asbesto s is not. J.A. at 2283, 2291-92, 2523-
24.
10Additiona lly, Tompkin cross-examined Bradley about the
consistency of his testimony on asbestos with his report (J.A. at 2409-17),
and he raised the issue during interim argum ent. See J.A. at 2505 (“I have
to take his word for it, I couldn’t tell you if my life depended on it—o ne
of 69 articles. He doesn’t raise it in his rep ort, he d oesn’t say it in his
deposition, he says it here.”) During closing argument, she accused the
defendants of ambushing her with Bradley’s testimony. J.A. at 2793
(“[W ]e come into the courtroom and, bam, up come those bo ards and up
come this new opinion [sic] that it was asbestos. So, I mean, the
tobacco— the defendants are capable of playing pretty hard-nosed
footb all.”).
cancer “most likely resulted from occupational exposure to
silicates and asbestos” and that smoking was not a proximate
cause of Mr. Tompkin’s cancer.9 J.A. at 2540.
Moreover, Tompkin conceded that asbestos contributed to
her husband’s cancer. See J.A. at 1902 (testimony of
plaintiff’s expert, Dr. Joseph Tomashefski, a pathologist, that
“asbestos interacted with the cigarette smoke as co-
carcinogens to cause his lung cancer”); J.A. at 1886
(testimony of Tomashefski that Mr. Tompkin’s cancer was
“due to the combined effect of his cigarette smoking and his
exposure to asbestos”); J.A. at 1183-84 (opening argument
that “tobacco and asbestos caused [Mr. Tompkin’s] lung
cancer”).10
In denying Tompkin’s motion for a new trial, the district
court concluded that McCue’s testimony was “far more
devastating than Dr. Bradley’s testimony about epidemiology
associations.” J.A. at 874. We have not found anything in
the record or the parties’ briefs that undermines this
conclusion, and we cannot say that the exclusion of the
testimony “would have caused a different outcome at trial.”
Morales, 151 F.3d at 514 (citation omitted). In sum, we do
24 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
not have “a definite and firm conviction that the trial court
committed a clear error of judgment.” Tobin, 993 F.2d at 542
(citation omitted).
3. The District Court’s Exclusion of Evidence Proffered by
Tompkin
a. Introduction
Tompkin argues that the district court erred by excluding
four categories of evidence: evidence concerning research
and public relations organizations affiliated with the tobacco
industry; evidence concerning non-party tobacco companies;
deposition testimony from other tobacco-related lawsuits; and
post-1965 evidence. However, Tompkin has not explained
the relevance of any specific piece of evidence, either making
a generalized assertion that a category of evidence is relevant
and leaving the court to sift through hundreds of pages of
documents or thousands of pages of deposition testimony in
an effort to divine the relevance of particular items, or failing
to identify the specific pieces of evidence excluded by the
district court at all. Moreover, Tompkin has made no effort
to explain how she was prejudiced by the exclusion of the
evidence. Consequently, we cannot conclude that the district
court abused its discretion in excluding the evidence or that
the exclusion of the evidence was prejudicial.
This court reviews a district court’s evidentiary rulings for
abuse of discretion, and a district court’s determination will
be reversed only if the abuse of discretion caused more than
harmless error. Argentine v. United Steelworkers of Am., 287
F.3d 476, 486 (6th Cir. 2002); Trepel v. Roadway Exp., Inc.,
194 F.3d 708, 716 (6th Cir. 1999). “Broad discretion is given
to district courts in determinations of admissibility based on
considerations of relevance and prejudice, and those decisions
will not be lightly overturned.” United States v. Jackson-
Randolph, 282 F.3d 369, 376 (6th Cir. 2002). As a leading
treatise observes, “[c]laims of error with regard to the

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Morris, Inc., et al.
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admission or exclusion of evidence are prime candidates for
application of the harmless error rule.” 11 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 2885 (2d ed. 1995).
As defined by the Federal Rules of Evidence, relevant
evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401.
All relevant evidence is admissible. Fed. R. Evid. 402.
However,
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
Fed. R. Evid. 403.
b. Exclusion of Evidence Concerning Tobacco Industry
Groups
Tompkin contends that the district court erred by excluding
evidence concerning certain research and public relations
groups affiliated with the tobacco industry. However,
Tompkin has not shown that any specific document was
relevant or that the exclusion of any specific document
resulted in prejudice.
On August 2, 2001, the district court entered an order
“tentatively” granting the defendants’ motion in limine to
exclude evidence or allegations concerning the Council for
Tobacco Research (“CTR”), the Tobacco Industry Research
Committee (“TIRC”), the Tobacco Institute, Inc. (“TI”), and
26 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
11According to Tompkin, defendants The American T oba cco Co.,
Lorillard Tob acco Co., and Philip M orris, Inc., as well as other tobacco
comp anies, formed TIR C in Decemb er 1953 in response to medical
research that linked cigarette smoking to lung cancer. Tompkin alleges
that TIR C, and its successor, CT R, “claimed to b e independently
scientifically investigating whether there were health risks to smoking
cigarettes” and “continued to claim th at further research needed to be
done before smo king co uld be said to cause lung cancer . . . long after the
tobacco companies internally understood the true hazards.” App ellant’s
Br. at 18.
Also according to Tom pkin, the defendants, as well as other tobacco
comp anies, formed TI in 1958 to serve as the industry’s “public relations
and lobbying arm.” Tompkin alleges that TI endeavored to “create a
‘contro versy’ about the health hazards of smo king cigarettes, and to create
doubt abo ut the link between smo king and can cer without expressly
denying it.” Id.
Finally, according to Tompkin, H & K, a public relations firm, was
involved in the forma tion of T IRC .
Hill & Knowlton (“H & K”).11 On September 21, 2001, after
considering additional briefing by the parties, the district
court refused to overrule its original ruling. The district court
did not explain its rationale for excluding the evidence in
either order. On December 20, 2001, the district court denied
Tompkin’s motion for a new trial without discussing
Tompkin’s argument that it had erred by excluding evidence
concerning the tobacco industry groups.
On appeal, Tompkin asserts, in broad terms, that evidence
concerning CTR, TIRC, TI, and H & K was relevant.
Specifically, she contends that “the efforts of these groups are
highly relevant to the issues of common knowledge, as well
as to consumer expectations, failure to warn, and punitive
damages,” apparently because these groups allegedly
attempted to mislead the public about the dangers of cigarette
smoking. She points to eighty-four documents—including
internal memoranda concerning the formation of, and the
activities of, TIRC and TI, press releases by TIRC, TI, and
newsletters published by TI—as examples of evidence

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12Mo reover, although the district court granted the defendants’
motion in limine to exclude this category of evidence, it later ruled that
the defendants had “opened the door” to this evidence. During To mpkin’s
cross-examination of Dr. Hoff, the defendants’ expert on the common
knowledge issue, the d istrict court ruled that evidence relating to TIRC
and TI was no longer excluded, given that Dr. Hoff had shown “no
interest” in the public position of the tobacco companies regarding the
link between cigarette smoking and lung cancer when analyzing whether
the linkage was common knowledge. J.A. at 1618. Tompkin proceeded
to question Dr. Hoff about TIRC, TI, CTR, and H & K, even examining
Dr. Hoff about one of the press releases that Tompkin complains was
excluded by the district court’s initial ruling. J.A. at 1619-51.
wrongfully excluded by the district court’s ruling. However,
she does not explain how any specific piece of evidence was
relevant or how the exclusion of any specific piece of
evidence inflicted prejudice.
Tompkin has not shown that she was prejudiced by the
district court’s ruling. Before this court, Tompkin merely
asserts that this category of documents is relevant to an array
of issues, making no effort to demonstrate the relevance of
particular documents or to explain how she was prejudiced by
the exclusion of particular documents. Without such
information, we cannot say that the trial court committed a
clear error of judgment or that Tompkin suffered prejudice.12
c. Exclusion of Evidence Concerning Non-Party Tobacco
Companies
The district court’s exclusion of evidence concerning non-
party tobacco companies does not constitute grounds for a
new trial, as Tompkin has not demonstrated that the district
court improperly excluded any specific piece of evidence or
that the exclusion of any specific piece of evidence was
prejudicial.
On August 2, 2001, the district court entered an order
“tentatively” granting the defendants’ motion in limine to
28 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
exclude evidence of or reference to conduct or documents of
non-party tobacco companies. On September 21, 2001, after
considering additional briefing by the parties, the district
court refused to overrule its original ruling. The district court
did not explain its rationale for excluding the evidence in
either order. On December 20, 2001, the district court denied
Tompkin’s motion for a new trial without discussing
Tompkin’s argument that it had erred by excluding
evidencing concerning non-party tobacco companies.
On appeal, Tompkin argues that the district court erred by
excluding evidence concerning non-party tobacco companies.
Speaking in the most general terms, she contends that this
evidence was relevant because evidence showing that other
tobacco companies knew of the dangers of smoking indicates
that the defendants should have known of the dangers as well
(and, hence, should have warned consumers of the dangers).
She has not identified any specific piece of evidence that was
excluded by the district court’s ruling.
Given Tompkin’s failure to direct the court to the specific
pieces of evidence that she was prevented from introducing,
we cannot say that the district court committed reversible
error. It is impossible to determine whether the evidence that
Tompkin intended to present was relevant (or whether the
evidence should have been excluded under Federal Rule of
Evidence 403) without knowledge of the substance of the
testimony or documents. Likewise, it is impossible to say
that Tompkin was prejudiced by the exclusion of the evidence
simply on the basis of Tompkin’s generalized assertion that
the evidence was “relevant.”

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13The depositions were taken in various other tobacco-related
lawsuits.
d. Exclusion of Deposition Testimony from Other
Proceedings
The district court’s exclusion of deposition testimony from
other proceedings does not constitute reversible error, as
Tompkin has not established that she was prejudiced by the
exclusion of the testimony.
On appeal, Tompkin complains that she was not allowed to
present the following deposition testimony:13 (1) testimony
from Robert Heimann, the former president and CEO of The
American Tobacco Company, “regarding warnings”
(Appellant’s Reply Br. at 30); (2) testimony from Frederick
Panzer, an employee of TI starting in 1969, that the tobacco
industry had employed “a holding strategy” of “creating
doubt about the health charge without actually denying it”
and “advocating the public’s right to smoke, without actually
urging them to take up the practice” (id. at 32); (3) testimony
from Bennett LeBow, who acquired ownership of Liggett
Group, Inc. in the 1980s, that “the tobacco companies were all
lying regarding the defenses they were making including
cigarettes causing disease” (id. at 33); (4) testimony from
Irwin Tucker, an employee of a non-party tobacco company,
that, at the December 1953 meeting where tobacco company
presidents created TIRC to respond to adverse publicity from
medical research linking smoking to lung cancer, there was
no discussion whether the tobacco companies should issue
warnings to smokers regarding the health risks (id. at 35-36);
(5) testimony from Joseph F. Cullman, the former CEO of
Philip Morris, Inc., that his company took the position that “it
had not been proved that cigarette smoking caused lung
cancer” and that the tobacco industry endeavored “to point
out to the public a controversy about smoking and health
concerns” (id. at 39); (6) testimony from Alexander White
30 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
14The relevance of the excluded testimony is by no means clear.
To mpkin makes no effort to tie the testimony of particular individuals to
specific issues; instead, she simply announces at the outset of her
argument that “[t]his testimony was relevant to the issues before the jury
in this case.” Appellant’s Br. at 24. (There is an exception; she does
assert that “portions” of Heimann’s deposition relate to her failure to warn
claim and the defendant’s com mon knowledge defense. Appellant’s
Rep ly Br. at 29-30.) Moreo ver, she has not identified the sp ecific
testimony that she alleges was erro neously excluded . Thus, the court has
been left to review literally thousand s of pages of depo sition transcripts
and to speculate which testimony purportedly relates to which issue(s),
even before turning to the relevancy and Rule 403 issues.
15To mpkin’s responses to the defendants’ hearsay objections are, at
times, barely even suppo rted. For examp le, she asserts that certain
testimony is admissible pursuant to Federal Rule of Evidence 804(b)(1),
but does not direct the court to any evidence in the record supporting her
position that the declarant is “unavailable” or her position that the
defendants had “an opportunity and similar motive to develop the
Spears, III, the former chairman and CEO of Lorillard
Tobacco Co., that his company “would have kept selling
cigarettes as long as they were a legal product, regardless of
whether there were several definitive studies showing
smoking causes lung cancer” (id. at 40); (7) testimony from
Carl G. Thompson, a former employee of H & K, that “TI’s
position with respect to tobacco and health was basically a
theme of ‘scientific controversy’” (id. at 42); (8) testimony
from William Kloepfer, an employee of TI starting in 1967,
about “the use of the ‘cigarette controversy’ since at least TI’s
inception in 1958" (id. at 43); and (9) testimony from Walker
P. Merryman, a spokesman for TI, that one of TI’s purposes
was to convince the public that “we are vitally interested in
getting the facts that would provide answers to questions
about smoking and health.” Id. at 44.
Assuming that this testimony was relevant (and not
excludable under Federal Rule of Evidence 403),14 and also
assuming that the testimony was not inadmissible hearsay,15

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testimony.” See Appellant’s Reply Br. at 44 (asserting, without
supporting citation, that Merryman has cancer and is too ill to travel); id.
at 42 (stating only that Thompson’s depo sition “was taken in a case
involving some of the d efendants in this case”); see also id. at 43 (failing
to address the hearsay ob jection to K loepfer’s testimo ny).
16Additiona lly, it appears that Tom pkin did not proffer any
deposition testimony from Cullman, Spears, Kloepfer, or Merryman, thus
waiving any right o f appeal. See Fed. R. Evid. 103(a)(2).
Tompkin has not shown that she was prejudiced by the
exclusion of this testimony. She has not identified the
specific testimony that she believes was erroneously
excluded, has not matched the testimony of specific
individuals to specific issues, and has not made any attempt
to explain how her case was prejudiced by the exclusion of
the testimony. Accordingly, we cannot conclude that the
evidence would have caused a different outcome at trial. In
re Air Crash Disaster, 86 F.3d 498, 526 (6th Cir. 1996).16
e. Exclusion of Post-1965 Evidence
The district court’s exclusion of post-1965 evidence does
not constitute reversible error, as Tompkin has not shown that
she was prejudiced by the exclusion of the evidence.
On April 19, 2001, the district court entered an order
granting, in part, the defendants’ motion to exclude post-1965
evidence. It interpreted this court’s prior ruling to endorse the
use of post-1965 evidence in support of Tompkin’s argument
that there was no “common knowledge” in 1965 of a direct
link between cigarette smoking and lung cancer. However, it
ruled that any post-1965 evidence must relate to the “common
knowledge” issue, and it specifically ruled that post-1965
evidence was not relevant to the issue of punitive damages.
On August 2, 2001, the district court denied Tompkin’s
motion to reconsider its April 19 ruling. On December 20,
2001, the district court denied Tompkin’s motion for a new
32 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
trial without discussing Tompkin’s argument that it had erred
by excluding post-1965 evidence.
On appeal, Tompkin rests on bald argument. Her
discussion of this issue follows:
Post 1965 evidence is relevant and should not have been
excluded since the factors to be considered in
determining punitive damages as set forth above included
a number of items which necessarily involve post injury
activity. Defendants engaged in a continuing course of
deceitful conduct throughout the period Mr. Tompkin
smoked and for many years thereafter. Evidence
regarding events subsequent to 1965 will explain
defendants’ motives, intent and knowledge prior to 1966.
This relates to plaintiff’s failure to warn and consumer
expectation claims. And evidence of defendants’ post
1965 routine practices of distorting the health risks of
smoking is relevant and admissible under Evid. R. 406.
Appellant’s Br. at 27-28.
With only this information before us, we are unable to say
that the district court abused its discretion in excluding post-
1965 evidence. To the extent that the evidence relates to
punitive damages, any error was harmless as the jury did not
reach the issue of damages. See Miller v. Caterpillar Tractor
Co., 697 F.2d 141, 145 (6th Cir. 1983) (holding that any error
in the admission of evidence relating to damages was
harmless as “the jury never reached the issue of damages and
therefore the testimony could not have contributed to its
verdict of no cause of action”). To the extent that the
evidence relates to her failure to warn and consumer
expectations claims, Tompkin has not identified the excluded
evidence nor explained how the evidence would have
illuminated the defendants’ “motive, intent and knowledge

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17To mpk in does identify two pieces of evidence in her rep ly brief.
To mpk in sought to introduce deposition testimony from prior proceedings
from Frederick Panzer, a former emplo yee of T I, and from B ennett
LeBow, the owner of Liggett Group, Inc. However, as discussed supra
in Section 3(d), the exclusion of this testimony does not constitute
grounds for a new trial.
prior to 1966.”17 We therefore cannot conclude that the
district court erred, much less that any error caused prejudice.
4. The District Court’s Refusal to Instruct the Jury on
Tompkin’s Consumer Expectations Theory
The district court’s refusal to instruct the jury on
Tompkin’s consumer expectations theory does not constitute
grounds for a new trial, as any error was harmless, given that
the district court did instruct the jury on a “virtually
indistinguishable” claim.
This court reviews a district court’s refusal to give a
requested jury instruction under an abuse of discretion
standard. Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d
445, 449 (6th Cir. 2000). A district court’s refusal to give a
jury instruction constitutes reversible error if (1) the omitted
instruction is a correct statement of the law, (2) the instruction
is not substantially covered by other delivered charges, and
(3) the failure to give the instruction impairs the requesting
party’s theory of the case. Id. “A judgment may be reversed
only if the instructions, viewed as a whole, were confusing,
misleading, or prejudicial.” Id. (quoting Beard v. Norwegian
Caribbean Lines, 900 F.2d 71, 72-73 (6th Cir. 1990)).
Under OPLA, a product is defective in design if “[i]t is
more dangerous than an ordinary consumer would expect
when used in an intended or reasonably foreseeable manner.”
Ohio Rev. Code Ann. § 2307.75(A)(2) (Anderson 2001).
Under this “consumer expectations” test, a product may be
proven to be in a defective condition if (1) it is more
34 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
dangerous than an ordinary consumer would expect when
used in an intended or reasonably foreseeable manner, (2) the
claimed defect was present when the product left the
manufacturer, and (3) the claimed defect proximately caused
the claimed injuries. Hisrich, 226 F.3d at 455. “‘[E]vidence
of unsafe, unexpected product performance is sufficient to
infer the existence of a product defect’ under the first prong
of the consumer-expectation standard.” Id. (quoting State
Farm Fire & Cas. v. Chrysler Corp., 523 N.E.2d 489, 494-95
(Ohio 1988)). “[T]he determination of whether a product is
more dangerous than an ordinary person would expect is
generally a question of fact which does not require expert
testimony.” Id. (quoting Fisher v. Ford Motor Co., 13
F. Supp. 2d 631, 638 n.10 (N.D. Ohio 1998)).
The district court refused to instruct the jury on Tompkin’s
consumer expectations theory, finding that “there was no
testimony” to support this claim. J.A. at 2629. Evidently, it
accepted the defendants’ argument that Dr. Smith’s
testimony, which Tompkin claimed created a jury issue as to
the consumer expectations theory, addressed only the
common knowledge issue. J.A. at 2624, 2629.
Even assuming for the sake of argument that Tompkin
created a triable issue as to her consumer expectations theory,
the district court’s refusal to instruct the jury on this claim
was harmless error. The district court did instruct the jury on
Tompkin’s breach of implied warranty claim, a cause of
action that is “virtually indistinguishable” from a design
defect claim under OPLA. Tompkin, 219 F.3d at 576
(quoting Temple v. Wean United, Inc., 364 N.E.2d 267, 270
(Ohio 1977)); see also White v. DePuy, Inc., 718 N.E.2d 450,
454 (Ohio Ct. App. 1998) (observing that “the two theories
have been used interchangeably and analyzed together”
(internal quotation omitted)). At least under the present facts,
the elements of a consumer expectations claim and a breach

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Nos. 02-3267/3309 Tompkin v. Philip
Morris, Inc., et al.
35
18The elements of a breach of implied warranty claim are (1) the
existence of a defect in the product manufactured and sold by the
defendant, (2) the defect existed when the product left the hands of the
defendant, and (3) the defect was the direct and proximate cause of the
plaintiff’s injuries. White v. DePuy, Inc., 718 N.E .2d 4 50, 4 55-5 6 (O hio
Ct. App. 1998). A product is defective if it is “dangerous to an extent
beyond the expectations of an ordinary consumer when used in an
intended or reasonably foreseeable manner.” Leichtamer v. Am. Moto rs
Corp., 424 N.E .2d 5 68, 5 77 (Ohio 19 81); see also W hite, 718 N.E.2d at
456 (“A defect is considered to exist in a product that is not of good
merchantab le quality, fit and sa fe for its ordinary intended use” (internal
punctuation and quotation omitted)). The elements of a consumer
expectations claim are (1) the product is more dangerous than an ordinary
consumer would expect when used in an intended or rea sonably
foreseeable manner, (2) the claimed defect was present when the product
left the manufacturer, and (3) the claimed defect proximately caused the
claimed injury. Hisrich v. Volvo Cars of N. Am., Inc., 226 F.3d 445, 455
(6th Cir. 2000) (citing Leichtamer).
19The district court instructed the jury that in order to find the
defendants liable on the implied warranty claim, it had to find
One, the defendant sold its cigarettes in a defective con dition
that made them unreasonably dangerous to M r. Tompkin; and
two, the [defendant] engaged in the business of selling the
cigarettes; three, the cigarettes were expected to and did reach
Mr. Tom pkin without substantial change in the condition in
which they were sold; and four, the defect was a direct and
proximate cause of M r. Tom pkin’s injuries.
And I should also add and dea th [sic].
For purpo ses of this claim, a product is not unre asonably
dangerous unless it is dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchases
them, with the ordinary knowledge common to the co mmunity
as to their characteristics.
of implied warranty claim are materially indistinguishable,18
and the district court’s instruction on Tompkin’s breach of
implied warranty claim paralleled the pattern instruction for
a consumer expectations claim.19 Consequently, we cannot
36 Tompkin v. Philip
Morris, Inc., et al.
Nos. 02-3267/3309
J.A. at 268 0. The Ohio p attern jury instructions provide as follows:
CONSUMER EXPE CTAT ION T EST. A product is defective
under the consumer expectation test if the product is more
dangerous than an ordinary consumer would expect when used
in an intended or reasonably foreseeable manner. Fore seeab le
uses of a product include those that might reasonably be
expected, but no t all uses which could occur. You should decide
whether the claimant’s injury occurred as a direct result of using
the product in a manner that was intended or reaso nably
foreseeable. If it was not so used, than the claim ant has failed to
prove the existence of a defect under the consumer expectation
test. If the product was so used and was more dangerous than an
ordinary consumer would expect, then the claimant has proved
the existence o f a defec t under the consumer exp ectation test.
3 Ohio Jury Instructions § 351.09 (2)(C) (2002).
conclude that the district court’s refusal to instruct the jury on
the consumer expectations claim resulted in prejudice.
5. The Defendants’ Cross-Appeal
Given our disposition of Tompkin’s appeal, the defendants’
cross-appeal is moot.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
the district court.

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