McGuireWoods Trial Team Wins High-Profile Product Liability Claim by Former Phillies Strength Coach

January 20, 2022

McGuireWoods recently won a summary judgment for client Swedish Match NA in a high-profile product liability action brought by plaintiffs who alleged that smokeless tobacco products caused one plaintiff’s tonsil cancer. 

The U.S. District Court for the Eastern District of Pennsylvania granted summary judgment on Dec. 21. 2021, after McGuireWoods partners Samuel Tarry and Davis Walsh won Daubert motions to exclude testimony from two of the plaintiffs’ causation experts.

As alleged in the complaint, plaintiff Gus Hoefling, a former Philadelphia Phillies and Philadelphia Eagles strength coach, began using Red Man Chewing Tobacco, a product made by Swedish Match’s subsidiary, in 1973. He later added another smokeless tobacco product, using both until he quit in 2011. He was diagnosed with tonsil cancer in 2017. Hoefling and his wife sued Swedish Match subsidiary Pinkerton Tobacco Co. and U.S. Smokeless Tobacco Co. in 2019, claiming his decades of tobacco use caused his cancer.

According to the court’s ruling, the plaintiffs retained pre-eminent oncologists from Massachusetts General Hospital and Harvard Medical School to opine that Red Man caused Hoefling’s cancer. Since 1987, all forms of smokeless tobacco have carried a series of federal warning labels, including: “This product can cause mouth cancer.”

McGuireWoods argued that the experts’ testimony should be excluded under the Daubert standard because they neither ruled in smokeless tobacco as a cause of tonsil cancer, which is distinct from oral cancer, nor ruled out human papillomavirus (HPV), which causes 80 percent of tonsil cancers. The court agreed and granted McGuireWoods’ motion for summary judgment.

In addition to Tarry and Walsh, the McGuireWoods litigation team included associate Eric Fleming. 

“This is an important legal decision that recognizes tobacco harm reduction principles,” Tarry said. “We are pleased the court looked past the experts’ outstanding credentials and held them to the standards demanded by rule 702.”