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March 13, 2026 Get Citation Alerts Download PDF Add Note

Agnitti v. Philip Morris USA Inc.

Massachusetts Appeals Court

• Citations: None known

• Docket Number: AC 24-P-780

• Opinion

• Authorities (31)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.9K)

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Combined Opinion

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

24-P-780 Appeals Court

PETER AGNITTI1 vs. PHILIP MORRIS USA INC. & others.2

No. 24-P-780.

Middlesex. December 4, 2025. – March 13, 2026.

Present: Blake, C.J., Hand, & Toone, JJ.

Tobacco. Negligence, Sale of cigarettes, Defective product,
Design, Manufacturer, Misrepresentation. Conspiracy.
Fraud. Wrongful Death. Consumer Protection Act, Sale of
cigarettes, Unfair or deceptive act. Practice, Civil,
Wrongful death, Objections to jury instructions, Requests
for instructions.

Civil action commenced in the Superior Court Department on
March 27, 2020.

The case was tried before Camille F. Sarrouf, Jr., J.

Celene H. Humphries, of Florida, for the plaintiff.
Scott A. Chesin for Philip Morris USA Inc.

1 Individually and as personal representative of the estate
of Lorna Agnitti.

2 R.J. Reynolds Tobacco Company and Cumberland Farms, Inc.
2

TOONE, J. The plaintiff, Peter Agnitti, individually and

as personal representative of the estate of his wife, Lorna

Agnitti (Lorna), appeals from a judgment entered in the Superior

Court on a jury verdict for the defendant, Philip Morris USA

Inc. (Philip Morris). The plaintiff does not challenge the

judgment insofar as it was entered for the other defendants:

R.J. Reynolds Tobacco Company and Cumberland Farms, Inc.

Born in 1957, Lorna smoked her first cigarette when she was

approximately ten years old. Over the next fifty years, she

primarily smoked Philip Morris brands of cigarettes: Marlboro

and Marlboro Lights. In 2019, Lorna was diagnosed with lung

cancer. She and the plaintiff commenced this action the next

year. They initially asserted six claims against one or more of

the defendants: (i) breach of the implied warranty of

merchantability based on design defect; (ii) negligence;

(iii) civil conspiracy to commit fraud and misrepresentation;

(iv) fraud and misrepresentation; (v) violations of the Consumer

Protection Act, G. L. c. 93A, §§ 2, 9; and (vi) loss of

consortium. After Lorna died in September 2022, the plaintiff

amended the complaint, adding a claim for wrongful death

pursuant to G. L. c. 229, § 2.

All of the claims were tried before a jury, including the

c. 93A claim at the request of the parties. See Governo Law

Firm LLC v. Bergeron, 487 Mass. 188, 193 n.11 (2021). After a
3

twenty-day trial, the jury found in favor of the defendants on

all claims. On appeal, the plaintiff challenges the jury

instructions on two of the claims: violation of c. 93A and

fraud and misrepresentation. We vacate and set aside so much of

the judgment entered in favor of Philip Morris as to the

violation of c. 93A, and remand the matter. We affirm the

remainder of the judgment.

Discussion. 1. Preservation of objections. We must first

determine whether the plaintiff preserved his objections to the

two instructions. "As provided by the Massachusetts Rules of

Civil Procedure, '[n]o party may assign as error the giving or

failure to give an instruction unless [the party] objects

thereto before the jury retires to consider [their] verdict,

stating distinctly the matter to which [the party] objects and

the grounds of [the] objection.'" Rotkiewicz v. Sadowsky, 431

Mass. 748, 750-751 (2000), quoting Mass. R. Civ. P. 51 (b), 365

Mass. 816 (1974) (rule 51 [b]). The requirements of rule 51 (b)

are satisfied where a "party objects after the charge was given

and explains the significance of the request." Flood v.

Southland Corp., 416 Mass. 62, 66 (1993). Even after a party

objects to an instruction at the charge conference, rule 51 (b)

requires the party to renew that objection after the charge.

Id. at 66-67. The postcharge objection should be made "with

specificity"; counsel "proceeds at considerable peril in
4

objecting to a jury charge simply by reference to discussions

had, and rulings made, during a charge conference." Id.

Here, before the judge charged the jury in this case,

counsel for Philip Morris stated, "I assume Your Honor does not

want us to come to the sidebar after you read the instructions

and reassert all of the objections we made, both in writing and

at the charge conference." We note that attorneys should not

assume they do not need to reassert their objections after the

charge, since that, as discussed, is what rule 51 (b) requires.

See Rotkiewicz, 431 Mass. at 750-751. Nevertheless, "[t]he

primary purpose of the rule is to put the judge on notice of the

issue, and the requirements of the rule may be satisfied in a

variety of ways." Id. at 751, citing Flood, 416 Mass. at 66-67.

That includes situations where the judge acknowledges a party's

objection, rules on it, and makes clear that the party need not

repeat the objection after the charge was given. See

Rotkiewicz, supra at 751-752, citing Commonwealth v. Grenier,

415 Mass. 680, 686 (1993). See also Flood, supra at 67. Here,

after counsel conveyed his assumption to the judge, the judge

responded, "I can acknowledge the fact that both parties have

lodged their objections with regard to the jury instructions as

read." In light of this exchange, we are satisfied that any

prior objections to the instructions met the requirements of

rule 51 (b).
5

The question, then, is whether the plaintiff specifically

objected to the instructions he challenges now. We conclude

that he did so with respect to the instruction on c. 93A. The

judge initially provided the parties with draft jury

instructions, based on those used in an earlier cigarette

manufacturer liability case that went to trial. The plaintiff

and defendants jointly submitted a jury instruction worksheet in

which the parties proposed changes to that draft, including what

defendants' counsel characterized as "[d]ueling proposals" on

the c. 93A instruction. At the charge conference, the

defendants argued for their proposed instruction, under which

the jury could find a c. 93A violation only if they found for

the plaintiff on one of his tort claims. In response, the

plaintiff contended that his c. 93A claim was not so limited and

that its elements differed from those of his other claims. The

judge ultimately gave the instruction proposed by the

defendants. The plaintiff thus "clearly [brought his] objection

and the grounds for it to the attention of the judge."

Rotkiewicz, 431 Mass. at 751. See Martignetti v. Haigh-Farr

Inc., 425 Mass. 294, 299 n.10 (1997) (objection preserved where

defendant explained disagreement with proposed instruction at

charge conference, requested alternative instructions, and

stated objection at bench conference immediately following

charge to jury before jury retired).
6

In contrast, although the plaintiff also challenges on

appeal the judge's failure to instruct the jury that "half-

truths" are actionable in a claim for fraud and

misrepresentation, the plaintiff did not object to that failure

at trial. In the joint instruction worksheet, the plaintiff

proposed numerous edits to the draft proposal that would have

made both omissions and half-truths actionable. The edits

included a paragraph that, in addition to addressing material

omissions, stated that the defendants "can be held responsible

not only for outright untrue statements that they made . . . ,

but also for giving misleading partial information or for

telling half-truths." At the charge conference, the plaintiff's

counsel told the judge that "[e]verywhere you see a discussion

of omissions, that's all requested," but then stated that,

because the judge had rejected the same proposed language at the

earlier cigarette manufacturer liability trial, "we don't have

to discuss every one of them." After the defendants objected,

the judge indicated that none of the proposed edits would be

incorporated, and the plaintiff did not object to their

exclusion at either the charge conference or trial.

The plaintiff failed to preserve this issue for our review.

"When no objection is taken to the failure of a judge to give an

instruction, and the attention of the judge is not called to the

matter, such failure cannot be raised on appeal." Karen Constr.
7

Co. v. Lizotte, 396 Mass. 143, 149 (1985). See Flood, 416 Mass.

at 67. The plaintiff's failure to object to the instruction

given was compounded by his failure to specifically argue for an

instruction on half-truths at the charge conference. With

claims for fraud and misrepresentation, Massachusetts courts

distinguish between "bare nondisclosure," which is not

actionable, and half-truths, which "may be as actionable as

whole lies." Kannavos v. Annino, 356 Mass. 42, 48 (1969). See

Sullivan v. Five Acres Realty Trust, 487 Mass. 64, 73-75 (2021).

The plaintiff did not mention half-truths at the charge

conference and instead focused on expanding the fraud and

misrepresentation claim to include liability for omissions, even

while acknowledging that the judge had rejected that request in

the earlier cigarette manufacturer liability case. His

presentation failed to "inform[] the judge why the requested

instruction" on half-truths "should have been given" or "give

him reason to believe his charge was incorrect." MacCuish v.

Volkswagenwerk A.G., 22 Mass. App. Ct. 380, 397 (1986), S.C.,

400 Mass. 1003 (1987).

We emphasize that objections are required so that trial

judges may correct instructional errors before the jury begin

their deliberations. Here, the record shows that the judge may

well have instructed the jury on half-truths in connection with

the claim for fraud and misrepresentation, had the plaintiff
8

called his attention to that issue. See Flood, 416 Mass. at 66.

In connection with the plaintiff's claim for civil conspiracy,

the judge instructed the jury that Philip Morris could be "held

responsible, not only for outright untrue statements that they

made . . . , but also for giving misleading, partial information

or for telling half truths." The judge included that language

as to the claim for civil conspiracy in his initial draft of the

jury instructions, and neither party objected to it.

1. Instruction on G. L. c. 93A. As the plaintiff

preserved his objection to the c. 93A jury instruction, we

review the instruction "to determine if there was any error and,

if so, whether the error affected the substantial rights of the

objecting party." Luppold v. Hanlon, 495 Mass. 148, 158 (2025),

quoting Dos Santos v. Coleta, 465 Mass. 148, 153-154 (2013).

"[A] judge enjoys significant latitude in framing the language

of [their] jury instructions and is not required to use the

specific language requested by a party" (citations omitted).

Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 275 (1990). As long

as all significant matters are covered, the judge need not

include "[e]very possible correct statement of law" in the

charge (citation omitted). Hopkins v. Medeiros, 48 Mass. App.

Ct. 600, 611 (2000). Still, the judge must "give full, fair,

correct and clear instructions as to the principles of law

governing all the essential issues presented" (citation
9

omitted). Id. "When reviewing jury instructions, an 'appellate

court considers the adequacy of the instructions as a whole, not

by fragments.'" Doull v. Foster, 487 Mass. 1, 6 (2021), quoting

DaPrato v. Massachusetts Water Resources Auth., 482 Mass. 375,

383 n.11 (2019).

The plaintiff contends that the judge erred in instructing

the jury that, to find for the plaintiff on his c. 93A claim,

they had to find the defendants liable on one of the tort claims

for breach of warranty, fraud and misrepresentation, negligence,

or civil conspiracy.3 We agree that was error.

"[A] cause of action under c. 93A is 'not dependent on

traditional tort or contract law concepts for its definition.'"

Kattar v. Demoulas, 433 Mass. 1, 13 (2000), quoting Heller v.

Silverbranch Constr. Corp., 376 Mass. 621, 626 (1978). Rather,

a c. 93A claim is "sui generis[,] neither wholly tortious nor

wholly contractual in nature, and . . . not subject to the

traditional limitations of preexisting causes of action such as

3 The judge instructed the jury that, to prevail on his
c. 93A claim, the plaintiff had to prove: "1: That the
defendants were liable for the claims of breach of warranty
and/or fraud and misrepresentation and/or negligence and/or
civil conspiracy as defined by [the judge's] instructions herein
while acting in trade and commerce after October 18, 1979, and
during the time when Lorna Agnitti was buying and smoking
cigarettes. And those acts were unfair and deceptive. And
2: That this unfair or deceptive conduct was a cause of Lorna
Agnitti's cancer."
10

tort for fraud and deceit." Slaney v. Westwood Auto, Inc., 366

Mass. 688, 704 (1975). See H1 Lincoln, Inc. v. South Washington

St., LLC, 489 Mass. 1, 24 (2022); Nei v. Burley, 388 Mass. 307,

312-313 (1983).

It is true that, where a c. 93A claim and a tort claim are

based on the same "theory of injury" and the same set of facts,

a court may conclude that the former claim fails for the same

reason as the latter. Iannacchino v. Ford Motor Co., 451 Mass.

623, 634-636 (2008). Courts have done so in narrow

circumstances -- at the pleading stage when no independent

unfair or deceptive conduct is alleged beyond the underlying

tort claim, or after a trial when the evidence failed to

establish any improper conduct on which a derivative c. 93A

claim could rest. See id. at 635 (reasons calling for dismissal

of c. 93A claim also justified dismissal of implied warranty

claim because they "survive or fail under the same analysis");

Pembroke Country Club, Inc. v. Regency Sav. Bank, F.S.B., 62

Mass. App. Ct. 34, 40 (2004) (reversing judgment on c. 93A claim

that was "wholly derivative" of tortious interference claim for

which there was insufficient evidence of improper motive or

means at trial). Cf. Donovan v. Philip Morris USA, Inc., 455

Mass. 215, 227 n.13 (2009) (determination that negligent design

claim was cognizable under Massachusetts law "similarly resolves

the claims for breach of warranty and violations of G. L.
11

c. 93A"). Here, the plaintiff concedes that part of his c. 93A

claim was derivative of his claim for breach of the implied

warranty of merchantability, for which the jury found in the

defendants' favor.

Other parts of the c. 93A claim, however, were not

derivative. The plaintiff alleged that the defendants violated

c. 93A, § 2, by making false and misleading representations

concerning the safety and addictiveness of their products. As

the plaintiff's counsel explained at the charge conference, the

standard for liability under c. 93A differs from that for fraud

and misrepresentation. Indeed, "a claim under c. 93A 'goes far

beyond the scope of the common law action for fraud.'" Macoviak

v. Chase Home Mtge. Corp., 40 Mass. App. Ct. 755, 760 (1996),

quoting Slaney, 366 Mass. at 703. To prevail on a claim for

fraud and misrepresentation, a plaintiff "must show the

defendant (1) made a false representation of material fact,

(2) with knowledge of its falsity, (3) for the purpose of

inducing the plaintiff to act on this representation, (4) which

the plaintiff justifiably relied on as being true, to her

detriment" (citation omitted). Sullivan, 487 Mass. at 73. By

contrast, a c. 93A claim based on deceptive acts or practices

does not require proof that the plaintiff relied on the

representation, or that the defendant knew the representation

was false and intended to deceive the plaintiff. Iannacchino,
12

451 Mass. at 630 n.12. Swanson v. Bankers Life Co., 389 Mass.

345, 349 (1983). Slaney, supra.4 Furthermore, even a statement

that is "true as a literal matter" can violate c. 93A if it

creates "an over-all misleading impression through failure to

disclose material information" (citation omitted). Exxon Mobil

Corp. v. Attorney Gen., 479 Mass. 312, 320 (2018), cert. denied

sub nom. Exxon Mobil Corp. v. Healey, 586 U.S. 1069 (2019). For

these reasons, the plaintiff's c. 93A claim was not "legally

intertwined," Iannacchino, supra at 635, with the fraud and

misrepresentation claim such that the jury's failure to find

liability on the latter (or any other tort claim) precluded

liability under c. 93A.

4 To recover damages under c. 93A, the plaintiff must show
"a causal connection between the deception and the loss and that
the loss was foreseeable as a result of the deception."
Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 503
(2011), quoting Iannacchino, 451 Mass. at 630 n.12. See Greene
v. Philip Morris USA Inc., 491 Mass. 866, 878-879 (2023). We
reject Philip Morris's suggestion that "causation and reliance
merge" in personal injury or wrongful death cases like this one.
Causation is not the same as reliance, and "the latter is not an
essential element of a G. L. c. 93A claim." Hershenow v.
Enterprise Rent-A-Car Co. of Boston, 445 Mass. 790, 800 n.20
(2006). Compare Greene, supra at 873 ("plaintiffs seeking to
prove reliance [as an element of fraudulent misrepresentation]
must do more than introduce evidence that falsehoods were in the
air, however pervasively," but rather must prove "that they
themselves relied on those falsehoods"), with id. at 878-879
(upholding liability under c. 93A where trial judge found
"causal link" between Philip Morris's deceptive marketing of
Marlboro Lights and plaintiff's continued smoking and cancer).
13

Nor can we say that there was no "evidentiary basis" for

the c. 93A instruction requested by the plaintiff. Aceto v.

Dougherty, 415 Mass. 654, 659 (1993). Cf. Dalton v. Post Publ.

Co., 328 Mass. 595, 598-599 (1952) ("A judge is required to

submit to a jury only the issues which the parties have seen fit

to try"). At trial, the plaintiff contended that the defendants

engaged in "unfair or deceptive practices while selling their

products." He presented evidence that, after scientific studies

in the 1950s showed a link between cigarette smoking and lung

cancer, cigarette sales dropped for the first time since the

Great Depression, and, in response, Philip Morris and other

tobacco companies developed a public relations campaign intended

to cast doubt on whether cigarettes caused lung cancer. The

companies established and funded organizations to perpetuate the

false notion that there was a scientific controversy about the

health risks of cigarette smoking. They also denied that

nicotine, the main active ingredient in tobacco, was addictive,

even after the Surgeon General reported it was in 1988, and even

though the companies had studied what levels of nicotine were

necessary to create and sustain addiction. Finally, Philip

Morris promoted "filtered," "light," and "low tar" cigarettes as

healthier alternatives to regular cigarettes, despite knowing

that these products were not safer.
14

In light of this evidence, we conclude that the plaintiff

made "a plausible showing that the jury might have reached a

different result absent the erroneous instruction." Main v.

R.J. Reynolds Tobacco Co., 100 Mass. App. Ct. 827, 837 (2022),

citing Campbell v. Cape & Islands Healthcare Servs., Inc., 81

Mass. App. Ct. 252, 258 (2012). The judge's instruction

effectively precluded a finding of liability under c. 93A unless

the jury also found liability under the more restrictive

standard for fraud and misrepresentation. That "unduly

narrowed" the issue for the jury to consider. Blackstone v.

Cashman, 448 Mass. 255, 270 (2007). Instead of determining

whether Philip Morris conveyed an "over-all misleading

impression" about its cigarette products and associated risks

and, if so, whether that unfair or deceptive conduct caused

Lorna harm, see Exxon Mobil Corp., 479 Mass. at 320; Casavant,

460 Mass. at 503, the jury could only consider whether Philip

Morris knowingly made a false representation of material fact

with the intent to induce her reliance, see Sullivan, 487 Mass.

at 73. "Where the jury may have based their verdict on the

erroneous instruction, the error was prejudicial." FTI, LLC v.

Duffy, 104 Mass. App. Ct. 484, 496 (2024).

Lastly, we reject Philip Morris's argument that the

phrasing of the c. 93A claim on the verdict form rendered any

error in the jury instruction harmless. Under the heading
15

"Unfair or Deceptive Conduct," the form asked, "Did any of the

defendants commit an unfair or deceptive act or practice after

October 18, 1979, by manufacturing, distributing, or selling

Marlboro, Marlboro Light, and/or Winston brand cigarettes[?]"

Philip Morris contends that "[t]he court's instructions about

Plaintiff's need to prove a common-law claim had no bearing on

this factual question," but we are not persuaded. Each heading

on the form referred to the claims advanced by the plaintiff,

and we presume that the jury followed the instruction they were

given on the c. 93A claim for which this question was posed. A

new trial on the claim is therefore warranted. See Governo Law

Firm LLC, 487 Mass. at 197.5,6

Conclusion. So much of the judgment as entered in favor of

Philip Morris on the claim for violation of G. L. c. 93A is

5 We do not address Philip Morris's argument that the
plaintiff's c. 93A claim did not survive Lorna's death, because
it did not make that argument in the Superior Court. See Carey
v. New England Organ Bank, 446 Mass. 270, 285 (2006).

6 Philip Morris's request for costs is denied. The
plaintiff's request for appellate attorney's fees is denied
without prejudice as premature as there is not a prevailing
party. See G. L. c. 93A, § 9 (4). Cf. Brown v. F.L. Roberts &
Co., 452 Mass. 674, 689 (2008); T & D Video, Inc. v. Revere, 450
Mass. 107, 115-117 (2007). If, after remand, judgment is
granted in favor of the plaintiff on his c. 93A claim, the
plaintiff shall be awarded reasonable attorney's fees under that
statute. Attorney's fees attributable to this appeal and any
proceedings after remand may be included in the award. See
Connor v. Marriott Int'l, Inc., 103 Mass. App. Ct. 828, 837 n.9
(2024).
16

vacated and set aside, and the matter is remanded to the

Superior Court for further proceedings consistent with this

opinion. The judgment is otherwise affirmed.

So ordered.