ELEANOR FARCHIONE v. R.J. REYNOLDS TOBACCO COMPANY & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-659

ELEANOR FARCHIONE1

vs.

R.J. REYNOLDS TOBACCO COMPANY & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff's decedent, Joseph Pritzky, began smoking

cigarettes in 1961 when he was ten years old and quit when he

was thirty-six years old. He was over sixty years old when he

was first diagnosed with lung cancer in 2014. Several years

later, he was diagnosed with another lung cancer, which led to

his death in 2023.

In this lawsuit the plaintiff claims that the wrongful

conduct of cigarette manufacturer R.J. Reynolds Tobacco Company3

1Individually and as special personal representative of the
estate of Joseph Pritzky.

2 The Stop & Shop Company, LLC.
3R.J. Reynolds Tobacco Company is the corporate successor
to Lorillard Tobacco Company and the Brown & Williamson Tobacco
and the Stop & Shop Company, LLC, caused Pritzky's lung cancers

and ultimately his death.4 The complaint raises several counts

including, as relevant to this appeal, breach of implied

warranty against both defendants and negligence and civil

conspiracy against Reynolds only. These claims were tried to a

jury over twenty-two days, after which the jury returned a

verdict finding that (1) the defendants did not breach an

implied warranty by manufacturing cigarettes or by selling them

to Pritzky; (2) Reynolds was not negligent in marketing

cigarettes to Pritzky when he was a minor; (3) Reynolds was

negligent in distributing cigarettes to Pritzky and in failing

to warn him of the health risks of cigarettes when he was a

minor, but its negligence did not cause Pritzky's lung cancers;

and (4) Pritzky did not reasonably rely to his detriment on a

misrepresentation of material fact made further to a conspiracy

between Reynolds and other tobacco companies or organizations.

The plaintiff now appeals from the judgment entered for the

defendants on all claims, arguing that the judge made dozens of

evidentiary errors during the course of the trial. We conclude

Company. For convenience we will refer to the three companies
interchangeably as "Reynolds."

4 The case was originally brought in 2017 by Pritzky on his
own behalf. Following his death in 2023, the special personal
representative of his estate filed an amended complaint
substituting herself as the plaintiff.

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that most of these arguments are waived and, as to the

remainder, that the plaintiff has failed to show either an abuse

of discretion or prejudice entitling her to a new trial.

Accordingly, we affirm.

1. Standard of review. We review the judge's evidentiary

rulings for an abuse of discretion. See N.E. Physical Therapy

Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013).

This standard requires the plaintiff to show that the judge made

a "clear error of judgment in weighing the factors relevant to

the decision . . . such that the decision falls outside the

range of reasonable alternatives" (quotation and citation

omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

In addition, to be entitled to a new trial, the plaintiff must

show that the errors, if any, adversely affected her substantial

rights. See DeJesus v. Yogel, 404 Mass. 44, 47-48 (1989).

"[T]he substantial rights of a party are adversely affected when

relevant evidence is erroneously excluded that, viewing the

record in a commonsense way, could have made a material

difference." Id. at 48.

2. Evidence related to negligent marketing claim. The

majority of the plaintiff's arguments concern the judge's

exclusion of evidence related to the negligent marketing claim.

The plaintiff puts this evidence into three categories:

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internal company documents, advertising on television shows, and

portions of Pritzky's recorded deposition testimony. We will

address each in turn and then turn to the question of prejudice.

a. Internal company documents. The plaintiff begins this

part of her brief by listing seventeen documents that she claims

the judge erroneously excluded. She then fails, however, to

offer any argument regarding most of those documents. While she

claims generally that the judge erred by excluding "many"

documents "on the grounds that the terms used in the documents

. . . were not explicitly defined to mean 'under 18,'" she fails

to specify which of the documents in the list of seventeen fall

into this category.5 We need discuss only those challenges that

are individually addressed in the brief and deem the rest to be

waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481

Mass. 1628 (2019).

The plaintiff has also waived some challenges by failing to

adequately address the substance of the judge's rulings. The

judge excluded three documents -- a 1974 marketing plan, a 1974

5 The only record citations the plaintiff provides are to
four pages of the record appendix, each containing four pages of
the trial transcript. But she does not explain which pages and
rulings correspond to which document, nor does she address the
specific grounds the judge gave for her rulings, including that
one document referred to people aged "25 to 44" and another
related to sales of cigarettes in States where the legal age to
purchase was sixteen.

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document concerning Reynolds's domestic operating goals, and a

1980 interoffice memorandum -- on the ground that they were

"incomplete" because the plaintiff failed to submit an

attachment. The plaintiff relegates her discussion of this

ruling to a footnote and, even there, makes only a summary

assertion that the attachment was relevant to only one of the

three documents. Likewise, the plaintiff fails to grapple with

the judge's reasons for excluding two 1963 letters from Grey

Advertising to Reynolds and a 1966 letter from Reynolds to Grey

Advertising.6 These challenges are all waived. See Mass.

R. A. P. 16 (a) (9) (A); Boston Edison Co. v. Massachusetts

Water Resources Auth., 459 Mass. 724, 726 n.3 (2011) (deeming

argument raised only in footnote to be waived).

Next, the plaintiff has failed to show that the judge

abused her discretion in excluding a 1963 letter from an

advertising agency to Reynolds. Attached to the letter was a

photograph of "Little Ritchie," a child celebrity, being handed

a cigarette by an adult. The judge excluded the letter as

irrelevant, noting that the plaintiff offered nothing to show

"that the people handing [the child] a cigarette had anything to

6 Although the plaintiff claims that the judge did not give
her reasons, we can infer from the judge's extended discussion
with counsel that she excluded the letters for lack of
foundation.

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do with [Reynolds]." The plaintiff argues that this was error

because "there was no record of any reprimand from [Reynolds] in

response to this letter" and Reynolds "actually continued to

employ that same advertising agency after receipt of this

letter." But the judge considered these arguments and concluded

that the letter was still irrelevant. This was well within the

range of reasonable alternatives. See L.L., 470 Mass. at 185

n.27.

The judge was also within her discretion to exclude a 1960

letter addressed to Wilson H. Ford, then a high school freshman,

which stated, "[W]e are sending you our gift package of SPRING

Cigarettes which we hope you will thoroughly enjoy." The judge

observed that the letter has "no signature line" and "no

letterhead" and that it is unclear whether it "was ever sent."

Later in the trial, plaintiff's counsel sought to establish a

foundation for the letter by asserting that he had "personally

spoke[n] with . . . Ford . . ., and he tells me that he did, in

fact, receive these free sample packs from [Reynolds]," and by

offering an affidavit from Ford to that effect. The judge

properly declined to admit the letter based on Ford's affidavit

and counsel's statements, which were plainly hearsay. We are

also unpersuaded by the plaintiff's assertion that she "laid the

proper foundation through her expert historian who was familiar

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with and had reviewed many of the director of research's letters

-- including letters that were sent unsigned -- and who

confirmed that the initials on the letter were for [Reynolds's]

head of research." The transcript, fairly read, reflects that

this was not the argument that the plaintiff raised below. In

any event, even assuming the argument was preserved, the

plaintiff offered nothing to show that the expert had any

knowledge of whether the letter in question was sent to Ford.

The last document identified by the plaintiff is a 1964

internal company memorandum, which states that the Newport brand

was advertised as a "fun cigarette" and successfully marketed to

"youthful" and "immature" customers "according to plan." The

judge excluded this memorandum as cumulative of the testimony of

the plaintiff's expert and because it was speculative to assume

that "'youthful' and 'immature,' without more, meant under the

age that people were allowed to buy cigarettes." We discern no

abuse of discretion. The plaintiff's expert testified at length

that a common theme of Reynolds's advertising was to portray

cigarettes, including the Newport brand, as "young" and "fun."

It was within the range of reasonable alternatives for the judge

to conclude that the memorandum would not have added anything

material to the expert's testimony. See L.L., 470 Mass. at 185

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n.27. Furthermore, even assuming error, it was not prejudicial

for the reasons stated below.

b. Television advertisements. The plaintiff's next set of

challenges concerns the exclusion of evidence that Reynolds

advertised its cigarettes on The Dick Van Dyke Show, The

Flintstones, Bonanza, and The Beverly Hillbillies. Regarding

the evidence related to Bonanza, the plaintiff relegates her

discussion of the judge's ruling to a footnote and offers little

beyond a summary assertion that the judge erred. Regarding the

evidence related to The Beverly Hillbillies, the plaintiff does

not discuss the judge's ruling at all. These challenges are

thus waived. See Mass. R. A. P. 16 (a) (9) (A); Boston Edison

Co., 459 Mass. at 726 n.3.

The judge excluded the advertisement that aired during The

Dick Van Dyke Show on the ground that "[i]t was a primetime

show" and there was nothing to "indicate that [the

advertisement] was targeting children as opposed to targeting

adults." Similarly, the judge excluded the advertisement that

aired during The Flintstones on the ground that "in those days"

it "was an adult show," which also aired during "primetime." We

are hard-pressed to say that these rulings were outside the

range of reasonable alternatives, where it is undisputed that

both shows aired during primetime. Indeed, one of the

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plaintiff's own exhibits reflects that The Flintstones was

advertised then as "[a]n adult comedy in cartoon form." In any

event, even assuming error, it was not prejudicial for the

reasons stated below.

c. Pritzky's deposition testimony. The plaintiff claims

that the judge erred by excluding portions of Pritzky's

deposition testimony describing the impact that Reynolds's

advertising had on him as a child. This section of the

plaintiff's brief identifies, in list form, numerous categories

of evidence that she says were excluded, but contains no

meaningful explanation of why the judge erred. These challenges

are thus waived. See Mass. R. A. P. 16 (a) (9) (A).

d. Prejudice. Even were we to conclude that the judge

made some isolated errors relating to the negligent marketing

claim, the plaintiff has failed to show that any such errors

affected her substantial rights. As reflected on the verdict

slip, to prevail on her claim, the plaintiff had to prove not

just that Reynolds was negligent, but also that its negligence

caused Pritzky's lung cancers. The plaintiff does not explain

how the excluded evidence "could have made a material

difference" on the question of causation. DeJesus, 404 Mass. at

48. Pritzky testified in his deposition that the Newport

advertisements he saw had "[n]othing" to do with his trying

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Newport cigarettes; that he watched The Flintstones and The

Beverly Hillbillies but did not remember cigarette

advertisements being aired during those shows;7 and that he did

not start smoking because of any advertisements he saw.

Furthermore, although the jury did not reach the question of

causation with respect to the negligent marketing claim (because

they found that Reynolds was not negligent), they did reach it

with respect to the negligent distribution and negligent failure

to warn claims and found that Reynolds's negligence did not

cause Pritzky's cancers. Given that the judge gave one jury

instruction on causation that applied to all three negligence

claims, and "viewing the record in a commonsense way," id., we

do not see how the excluded evidence could have materially

affected the jury's verdict on the negligent marketing claim.8

For at least these reasons, the plaintiff has failed to

demonstrate prejudice.

3. Evidence related to negligent distribution claim. The

plaintiff sought to present six witnesses who would all testify

7 Pritzky also testified that he watched The Dick Van Dyke
Show and Bonanza, but he was not asked whether he saw cigarette
advertisements during those shows.

8 We note that the issue of causation was vigorously
litigated at trial. The evidence presented included extensive
testimony about Pritzky's strong family history of cancers,
including among relatives who did not smoke.

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about receiving cigarette samples from Reynolds when they were

minors growing up in the neighborhoods around Pritzky's. The

judge allowed the plaintiff to present three witnesses but

excluded the rest as repetitive or cumulative.9 The plaintiff

argues that this was reversible error. We disagree. It is

within a trial judge's discretion to "exclude witnesses whose

testimony is cumulative, repetitive, or confusing."

Commonwealth v. Durling, 406 Mass. 485, 495 (1990). We discern

no abuse of discretion in the judge's finding that testimony

from the other witnesses would be repetitive or cumulative,

especially given its marginal relevance to whether Reynolds

negligently distributed cigarettes to Pritzky himself.

Furthermore, because the jury found on this claim that Reynolds

was in fact negligent, the plaintiff was not prejudiced. We are

unpersuaded by the plaintiff's assertion that the excluded

testimony could have made a material difference on the jury's

determination of causation.

The plaintiff also takes issue with the judge's

restrictions on the testimony of the three witnesses that the

9 The plaintiff incorrectly claims that the judge cut the
number of witnesses from thirteen to three. While plaintiff's
counsel identified thirteen potential witnesses, he told the
judge that "it would not be the plaintiff['s] intention to call
all of the potential witnesses." Later, counsel sought to offer
six of the witnesses.

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judge allowed. It appears that many of these challenges are

unpreserved, and in one instance it appears that the judge

allowed the portion of testimony that the plaintiff claims was

wrongly excluded. In any event, these challenges are waived

because the plaintiff merely identifies the excluded testimony

in list form without explaining how the judge abused her

discretion. See Mass. R. A. P. 16 (a) (9) (A).

Likewise, the plaintiff fails to develop her challenge

regarding Pritzky's deposition testimony that his brothers

received cigarette samples when they were minors and that he

often exchanged cigarettes with his brothers. The judge

excluded this testimony on the grounds that it was hearsay and

cumulative. In claiming that this was error, the plaintiff

states only that the testimony was "admissible under the hearsay

exception set out in G. L. c. 233, § 65." That statute provides

that "a declaration of a deceased person shall not be

inadmissible in evidence as hearsay . . . if the court finds

that it was made in good faith and upon the personal knowledge

of the declarant." G. L. c. 233, § 65. Putting aside that the

plaintiff did not cite this statute to the judge, the plaintiff

does not address the judge's reasoning that the excluded

testimony contained second-level hearsay statements made

"without any basis of knowledge or foundation." Nor does the

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plaintiff explain why the judge abused her discretion in

excluding the testimony as cumulative. Thus, this challenge is

also waived. See Mass. R. A. P. 16 (a) (9) (A).

4. Evidence related to conspiracy claim. The plaintiff

next claims that the judge erred by precluding the witnesses,

including the plaintiff's expert, from using the word

"conspiracy" during their testimony. We take the plaintiff to

be arguing that her expert should have been allowed to opine on

whether Reynolds engaged in a conspiracy. The judge determined,

however, "that 'conspiracy' is a term of art that incorporates a

legal definition which [she would] provide to the jury" and is

"not something that is colloquial or up to an expert to tell the

jury." This was not an abuse of discretion. See Silva v.

Norfolk & Dedham Mut. Fire Ins. Co., 91 Mass. App. Ct. 413, 420

(2017) ("an opinion of law . . . is generally not a proper

subject for expert testimony"). As the judge promised, she gave

detailed instructions on the elements of civil conspiracy, which

the jury were capable of deciding without the aid of an expert.

See id. ("The test for determining whether a particular matter

is a proper one for expert testimony is whether the testimony

will assist the jury in understanding issues of fact beyond

their common experience" [quotation & citation omitted]).

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The plaintiff further argues that the judge erred by

"repeatedly exclud[ing] evidence of the length and depth of the

conspirators' denial campaign." But again, the plaintiff merely

identifies the excluded evidence in list form without explaining

why the judge abused her discretion. These arguments are thus

waived. See Mass. R. A. P. 16 (a) (9) (A).

5. Evidence related to breach of warranty claim. Finally,

the plaintiff challenges the exclusion of evidence related to

whether Reynolds had the ability to manufacture cigarettes with

a safer design. Her sole argument in support is that similar

evidence has been admitted in other tobacco cases in

Massachusetts.10 While this is a refrain throughout the

plaintiff's brief, that similar evidence may have been admitted

in other cases does not show that the judge abused her

discretion in this case. These arguments are thus waived

10The plaintiff's record appendix includes exhibit lists
and portions of trial transcripts from other cases. It does not
appear that the plaintiff provided these documents to the judge.

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because of the plaintiff's failure again to grapple with the

substance of the judge's rulings. See Mass. R. A. P.

16 (a) (9) (A).11

Judgment affirmed.

By the Court (Meade, Shin &
Tan, JJ.12),

Clerk

Entered: August 6, 2025.

11To the extent we have not addressed any of the
plaintiff's arguments, we see nothing in them that warrants
overturning the judgment.
12 The panelists are listed in order of seniority.

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