Devine v. Philip Morris USA - Affirmed Dismissal in Smoking Death Claim

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April 9, 2026 Get Citation Alerts Download PDF Add Note

RICHARD DEVINE v. PHILIP MORRIS USA INC. & Others.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 24-P-1433

• Precedential Status: Non-Precedential

• Opinion

• Authorities (0)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

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-1433

                            RICHARD DEVINE1

                                   vs.

                 PHILIP MORRIS USA INC. & others.2

           MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

   The plaintiff, Richard Devine, individually and as personal

representative of the estate of his late wife, Catherine Mary

Devine (Catherine), brought claims in the Superior Court against

the defendants for breach of warranty, negligence, civil

conspiracy, fraud and misrepresentation, violations of G. L.

c. 93A, wrongful death under G. L. c. 229, § 2, and loss of

consortium.3 The plaintiff now appeals from a judgment on the

   1Individually and as personal representative of the estate

of Catherine Mary Devine.

   2R.J. Reynolds Tobacco Co. and The Stop & Shop Supermarket

Co., LLC.

   3The claims for negligence, civil conspiracy, fraud and

misrepresentation, and violations of G. L. c. 93A were not
asserted against The Stop & Shop Supermarket Company, LLC.
pleadings dismissing his complaint. The relief he seeks is

principally an opportunity to amend his complaint and present a

new argument in the Superior Court. We decline to grant such

relief and affirm the judgment.

 Background.4   Catherine began smoking cigarettes when she

was around thirteen years old. From 1969 to 2004, she smoked

cigarettes manufactured by Philip Morris USA Inc. and R.J.

Reynolds Tobacco Company (or its predecessors), some of which

were sold to her by The Stop & Shop Supermarket Company, LLC.

Around 1998, Catherine was diagnosed with chronic obstructive

pulmonary disease (COPD), a smoking-related illness. As her

health declined, her medical treatment involved an inhaler and

nebulizer, a ventilator, oxygen therapy, and use of a

wheelchair. Catherine's smoking-related illness ultimately

caused her death in November 2018, at age sixty-two. The

plaintiff brought this action in November 2021.

 In September 2022, the judge stayed proceedings at the

joint request of the parties pending the Supreme Judicial

Court's decision in the factually similar case of Fabiano v.

Philip Morris USA Inc., 492 Mass. 361 (2023). Decided on July

6, 2023, Fabiano established that

 4 "We recite the facts drawn from the parties' pleadings and

the exhibits attached thereto" (quotation and citation omitted).
Mullins v. Corcoran, 488 Mass. 275, 276 (2021).

                              2
 "[i]n light of the derivative character of wrongful death
 claims, for a representative of the decedent’s estate to
 have a right to bring a wrongful death action, the decedent
 must have had the continued right to bring a cause of
 action for the injuries that caused his or her death."

Id. at 362. On November 6, 2023, the defendants filed a motion

for judgment on the pleadings arguing that the holding in

Fabiano precluded the plaintiff's recovery. The defendants

argued that the statute of limitations for Catherine's claims5

had run more than fifteen years before her death in 2018 because

those claims accrued based on the diagnosis of her COPD around

1998, and therefore the plaintiff had no right to bring a

wrongful death action derivative of those time-barred claims.

 After a hearing on February 23, 2024, the judge allowed the

defendants' motion for judgment on the pleadings on February 26,

2024, and entered judgment dismissing the complaint on March 4,

2024.

 Discussion.   1.   Motion to dismiss the appeal.   The

defendants filed a motion to dismiss the appeal arguing that the

plaintiff, who is self-represented on appeal and is not an

attorney, could not represent his wife's estate, which the

defendants contend has multiple beneficiaries. See Mass.

 5 The applicable statute of limitations is three years for

general tort claims including negligence, fraud and
misrepresentation, civil conspiracy, and loss of consortium, see
G. L. c. 260, § 2A; three years for breach of warranty claims,
see G. L. c. 106, § 2-318; and four years for claims under G. L.
c. 93A, see G. L. c. 260, § 5A.

                             3

R. A. P. 15, as appearing in 481 Mass. 1627 (2019). The

plaintiff counters that he is in fact the sole beneficiary of

his wife's estate.6 Review of the probate documents in the

record supports the plaintiff's position.

 Catherine's will directed the payment of all "just debts

. . . as soon as practicable after [her] death" and devised the

remainder of her property to the plaintiff, provided that if the

plaintiff did not survive Catherine, the estate would be divided

equally among her children and their issue with right of

representation. The contingent interests of the other heirs

terminated when the plaintiff survived Catherine, rendering him

the sole beneficiary. See Cross v. Cross, 324 Mass. 186, 189

(1949) ("The general principle [is] that a will speaks as of the

time of the testator's death"). Because the plaintiff's

interests appear to be one and the same as the estate's, we are

not persuaded that the present appeal implicates the

unauthorized practice of law in violation of G. L. c. 221,

§ 46A, and we decline to resolve the appeal on that ground. See

Wilbur v. Tunnell, 98 Mass. App. Ct. 19, 25 (2020) ("where no

third-party interests other than those of the litigants are at

 6 We acknowledge the defendants' motion to strike the

plaintiff's reply brief. We deny the motion, but in considering
the brief we have excised those parts which rely on inaccurate
representations of the case law.

                              4

stake . . . the personal representative ought to be able to

exercise the statutory right of self-representation").

 2.   Equitable estoppel.   The plaintiff's principal brief on

appeal does not advance any argument that the judge erred in

dismissing his complaint or otherwise.7 Rather, the plaintiff

explains that he pursued this appeal because "[t]he doctrine of

estoppel is a cornerstone of [his] case, yet it was not

adequately presented" in the Superior Court proceedings. He now

"seeks to demonstrate why equitable estoppel should apply" and

requests to amend his complaint in the Superior Court.

 The plaintiff argues that the defendants should be estopped

from asserting the statute of limitations as a defense given

their "deliberate statements denying the health risks and

addictive nature of smoking," on which Catherine reasonably

relied to her detriment. He argues that her failure to pursue

legal action was not "a matter of conscious inaction," but

rather was the result of the defendants' manipulative and false

advertising that "misrepresented the risks of smoking and

perpetuated the notion that if one couldn't stop smoking or

suffered illness, it was due to personal failure."

 As the plaintiff acknowledges, this argument was never

"adequately presented" in the Superior Court. Although the

 7 We discuss infra the assertions of error raised in the

plaintiff's reply brief.

                             5

plaintiff reports consulting with counsel about his desire to

amend the complaint to address estoppel even before Fabiano was

decided, the argument never appeared in the plaintiff's

pleadings and briefing.8 It surfaced for the first and only time

during the February 23, 2024 hearing when the plaintiff raised

his hand to speak and his attorney stated on his behalf, "I did

want to explain that the nature of the argument that Mr. Devine

wanted to make relates to the notion of whether the claim that

Mrs. Devine, her eligibility to bring the claim, was equitably

estopped by certain facts." To the extent that the plaintiff

now asks us to evaluate the merits of his equitable estoppel

argument, that brief and ill-defined mention was insufficient to

preserve the issue for our consideration. See Commonwealth v.

Johnson, 470 Mass. 300, 319 (2014) (claim waived where party did

not "sufficiently develop . . . argument, leaving the court

unable to adequately assess the[] claim").

 We also decline to grant the plaintiff's request that we

vacate the judgment in order to permit him to amend his

complaint to address equitable estoppel. The decision to permit

 8 We are not persuaded by the plaintiff's assertion in his

reply brief that the equitable estoppel argument was "thoroughly
presented" in the section of his complaint alleging fraud and
misrepresentation. To invoke estoppel with respect to the
statute of limitations, the complaint would require allegations
that Catherine delayed bringing a suit in reliance on the
defendants' representations. See White v. Peabody Constr. Co.,
386 Mass. 121, 134 (1982).

                             6

late amendment to the pleadings is ordinarily left to the sound

discretion of the trial judge. See Mass. R. Civ. P. 15 (a), 365

Mass. 761 (1974). Here, the plaintiff never specifically

requested leave to amend his complaint with his estoppel

argument. There is no reason to supplant the judge's discretion

where the plaintiff had ample time to request such leave --

thirteen months elapsed between the issuance of the stay and the

defendants' filing of the motion for judgment on the pleadings

-- and admits that he anticipated the obstacle that the statute

of limitations posed to his claims.

3.   Other assertions of error.     In his reply brief, the

plaintiff asserts for the first time that errors were made in

the Superior Court. Those arguments are waived. See Spinosa v.

Tufts, 98 Mass. App. Ct. 1, 16 (2020). Even if we were to

                              7

consider them, we find the arguments unpersuasive.9,10

 9 We find unavailing the plaintiff's argument that the

"misapprehensions" of the judges (the judge and a different
judge who conducted a December 2023 hearing on a motion to
withdraw as counsel) concerning the plaintiff's purported lack
of authority to represent Catherine's estate without counsel
"impeded his ability to properly argue his position." We
understand that the plaintiff perceived some difficulty in
communicating his estoppel argument to the court because counsel
was unwilling to advance the argument, the court did not permit
counsel to withdraw, and the court became unwilling to directly
engage with the plaintiff on issues affecting Catherine's estate
during the December 2023 hearing. Even though the concern about
the unauthorized practice of law, as discussed supra, may have
been misplaced, where the motion for judgment on the pleadings
was pending and the plaintiff's opposition had been docketed,
both judges acted within their discretion in denying the motion
to withdraw and declining to allow the plaintiff to speak on
behalf of Catherine's estate at the hearing. See LoCicero v.
Hartford Ins. Group, 25 Mass. App. Ct. 339, 344 (1988).

 We also find unpersuasive the plaintiff's assertion that

the judge's analysis of his claims under Fabiano "depriv[ed] him
of an individualized adjudication" and "ignored the specific
allegations and substantive issues presented in his complaint."
Although the judge mentioned only the plaintiff's claims for
negligence and breach of warranty and his claim under G. L.
c. 93A, her correct analysis of time bar for negligence applies
equally to the plaintiff's claims for civil conspiracy and fraud
and misrepresentation because those claims also derive from
claims personal to Catherine and subject to the three-year
statute of limitations set forth in G. L. c. 260, § 2A.

 10Although the judge did not separately analyze the

plaintiff's loss of consortium claim, we are not persuaded that
the judge erred in dismissing that claim either. See Mullins v.
Corcoran, 488 Mass. 275, 281 (2021) (allowance of motion for
judgment on pleadings is reviewed de novo). The plaintiff's
complaint alleges that Catherine's smoking-related illness was
diagnosed around 1998 and that his antemortem loss of
companionship included "a loss of sexual intimacy for many
years." The pleadings demonstrate that the plaintiff
"recognized a substantial degeneration of the relationship[],
and its probable tie" to his wife's smoking, some years before
her death on November 14, 2018. Lijoi v. Massachusetts Bay

                            8
                                 Judgment affirmed.

                                 By the Court (Walsh, Toone &
                                   Tan, JJ.11),

                                 Clerk

Entered: April 9, 2026.

Transp. Auth., 28 Mass. App. Ct. 926, 928 (1990). Because the
cause of action accrued years before Catherine's death and the
present action was filed nearly three years after her death, the
claim for loss of consortium was barred by the three-year
statute of limitations. G. L. c. 260, § 2A.

11   The panelists are listed in order of seniority.

                             9