Tobacco company says Tony Gwynn knew risks, wants case dismissed

Tony Gwynn died in 2014 at 54 after battling cancer of the salivary gland. He used up to two cans of smokeless-tobacco products per day from 1977 till 2008. | AP

The U.S. Smokeless Tobacco Company has filed a response to the family of Tony Gwynn, saying Gwynn was warned about the alleged risks of using smokeless tobacco and that such risks are “commonly known,” but Gwynn accepted them anyway.

For these and other reasons, the company wants a state court in San Diego to dismiss a wrongful-death lawsuit filed against it last year by Gwynn’s widow, son and daughter. Gwynn died in 2014 at 54 after battling cancer of the salivary gland. Filed in May 2016, the suit accuses the company and related defendants of concealing the risks of smokeless tobacco. It is seeking unspecified damages for Gwynn’s death.

The company filed its defense in court last week, quickening the tension in a case that has shuffled between judges and courts over the past year, including in June, when the assigned judge recused himself from it. In court filings obtained by USA Today, the judge said he took himself off the case because he was helping to build a statue of Gwynn.

The case has a new judge, and the company is denying its products caused the health problems, adding that Gwynn’s damages, if any, “were the direct result of pre-existing medical conditions.” It also said he was “warned or otherwise made aware of the alleged risks of using smokeless tobacco products” and said his claims are barred “because those risks, to the extent they exist, are and have been commonly known.”

“Plaintiffs [the Gwynns] are barred from recovering any damages because the dangers claimed by Plaintiffs, if any, are and were open and obvious,” says the company’s response, filed by attorneys at the firm Shook, Hardy & Bacon.

The U.S. Smokeless Tobacco Company produces Skoal, Copenhagen and Red Seal. Its response generally follows standard legal strategy for tobacco companies that have faced similar lawsuits — to cast doubt about causation and say the consumer is to blame for taking on the risks.

But this is no ordinary consumer, as this case already has shown. Gwynn, a Hall of Famer, was one of baseball’s most iconic hitters and the most beloved player in Padres history. In June, the San Diego judge assigned to the case, Gregory Pollack, recused himself from it because he was helping to raise funds for a Tony Gwynn Memorial in nearby Poway, the city where Gwynn had lived.

The memorial was to feature a “greater-than-life-size statue of Mr. Gwynn holding his daughter [plaintiff Anisha],” the judge wrote in a court filing. The judge, a Poway resident, donated $2,500 to the cause.

Judge Pollack said he decided to recuse himself because “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”

Because of Gwynn’s popularity in San Diego, the company might face similar issues during jury selection if the case reaches that point.

Tobacco companies “do what they can to blame the victim,” said Richard Daynard, a law professor at Northeastern and tobacco-industry critic who’s not involved in the case. “Their basic defense is, ‘Only a very weak-willed person would use this product, and it’s his fault and not ours.’ My understanding is that ain’t going to work with Tony Gwynn, with what people know about him. It’s working less and less with people who are not celebrities.”

The Gwynn family’s suit says the defendants are the companies and individuals “that manufactured, adulterated and pushed on the public the tobacco products that led to Gwynn’s death, all while falsely denying the products were dangerous or addictive and engaging in a world-wide campaign to continually recruit new under-age users.”

Their case “seeks to hold them responsible for killing a baseball legend and a wonderful human being.”

The suit says Gwynn became addicted to their products and used up to two cans of the company’s products per day from 1977 until 2008.

Smokeless tobacco since has been banned from ballparks in many cities after once being part of the fabric of the game for players.

The company’s attorneys say the family’s claims of fraudulent concealment by the company are barred because Gwynn “had the means of knowing, by the exercise of ordinary intelligence, the truth of alleged statements concerning smokeless tobacco use and health.”

Altria, the parent company of U.S. Smokeless Tobacco, also is a defendant in the case. It declined further comment to USA Today.