Greene v. Philip Morris USA Inc.

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revision and are superseded by the advance sheets and bound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

SJC-13330

PATRICIA WALSH GREENE1 & another2 vs. PHILIP MORRIS USA INC.
& another.3

Middlesex. January 4, 2023. - May 9, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.

Tobacco. Conspiracy. Fraud. Evidence, Conspiracy, Fraud.
Consumer Protection Act, Unfair or deceptive act, Sale of
cigarettes, Damages. Damages, Consumer protection case,
Interest. Practice, Civil, Instructions to jury, Waiver,
Consumer protection case, Damages, Interest. Interest.

Civil action commenced in the Superior Court Department on
March 25, 2015.

The case was tried before Hélène Kazanjian, J., and motions
for posttrial relief were heard by her.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

1 Individually and as personal representative of the estate
of Frederick Douglas Greene, Jr.

2 Thomas D. Walsh, Jr., personal representative of the
estate of Frederick Douglas Greene, Jr.

3 Star Markets Company, Inc.
 2

Scott A. Chesin (Elliott M. Davis also present) for Philip
Morris USA Inc.
Michael B. Bogdanow (Andrew Rainer also present) for the
plaintiffs.
The following submitted briefs for amici curiae:
Jessica E. Garland, of California, Stuart T. Rossman, &
Matthew W.H. Wessler for National Consumer Law Center.
Jennifer A. Creedon, Lauren E. Mankowski, & Kyle Bjornlund
for Massachusetts Defense Lawyers Association.
Jeffrey R. White, of the District of Columbia, Thomas R.
Murphy, Kevin J. Powers, J. Michael Conley, & Leslie-Anne Taylor
for Massachusetts Academy of Trial Attorneys & another.

KAFKER, J. After smoking Marlboro brand cigarettes for

decades, the plaintiff Patricia Walsh Greene developed lung

cancer, forcing her to undergo a difficult course of treatment

that included chemotherapy, radiation therapy, and multiple

brain surgeries. She subsequently brought suit against the

cigarette manufacturer, Philip Morris USA Inc. (Philip Morris).

After a lengthy trial, a Superior Court jury returned a verdict

for Philip Morris on Greene's negligence and breach of warranty

claims, but found for Greene on claims alleging two different

types of civil conspiracy.4 Thereafter, the trial judge, who had

reserved for herself Greene's claim under G. L. c. 93A, entered

findings, rulings, and an order for judgment for Greene on that

claim. Posttrial, Philip Morris moved for judgment

4 The jury also found for Greene's husband, Frederick
Douglas Greene, Jr., on his loss of consortium claim; he passed
away during the pendency of the suit. Additionally, Philip
Morris's codefendant, Star Markets Company, Inc., was found not
liable.
 3

notwithstanding the verdict or for a new trial, and also moved

for modification of the judgments. Those motions were denied,

Philip Morris timely appealed, and we transferred the case sua

sponte from the Appeals Court.

In this appeal, Philip Morris argues that there was

insufficient evidence to support the judgments against it, or in

the alternative that it is entitled to a new trial because the

jury's instructions on conspiracy included "substantial

contributing factor" causation language -- erroneously,

according to Philip Morris, in the wake of our decision in Doull

v. Foster, 487 Mass. 1 (2021). Finally, Philip Morris argues

that the twelve percent pre- and postjudgment statutory interest

rates are unconstitutional.

We conclude that the jury verdict against Philip Morris for

civil conspiracy and the trial judge's finding of liability

under G. L. c. 93A were supported by the evidence. We further

conclude that Philip Morris's only objections to the

"substantial contributing factor" language in the causation

instructions were in the context of instructions on the breach

of warranty claim; it failed to object during the discussion of

the substantially distinct causation instructions regarding the

conspiracy claims, and thus has waived that argument for the

purposes of this appeal. Finally, we conclude that the

Legislature's pre- and postjudgment interest rates pass rational
 4

basis review and, thus, are constitutional. We therefore

affirm.5

1. Background. Because Philip Morris contends that the

evidence was insufficient to sustain the jury's verdict on

conspiracy, we summarize the trial evidence in the light most

favorable to the plaintiffs. Evans v. Lorillard Tobacco Co.,

465 Mass. 411, 417 (2013).

a. Greene's smoking history. Greene grew up surrounded by

advertising and promotion for Marlboro cigarettes -- on

television, in movies, on billboards, and in magazines. Greene

smoked her first Marlboro cigarette in 1971, at the age of

thirteen, and soon became addicted. As a teenager, she received

many small packs of cigarettes as free samples, most of them

Marlboro. By the time she was in high school, she smoked a full

pack of cigarettes a day.

Before she was able to permanently quit smoking in 1995,

she had tried to quit "all the time," employing strategies

ranging from nicotine patches to hypnotism. She was not

successful, although she did manage to stop smoking for nine

months, in 1979 and 1980.

5 We acknowledge the amicus briefs submitted by the
Massachusetts Defense Lawyers Association; the National Consumer
Law Center; and the Massachusetts Academy of Trial Attorneys and
American Association for Justice.
 5

After that nine-month pause, Greene elected to switch from

smoking regular Marlboro Red cigarettes to Marlboro Lights.

Greene saw advertisements for Marlboro Lights promising that

they delivered less tar and less nicotine -- "less of the bad

stuff," as she put it. She made the switch because she wanted a

healthier alternative to regular Marlboros. Greene went on to

smoke a pack a day of Marlboro Lights for well over a decade.

In 1995, after a scare during a surgical procedure, Greene was

able to stop smoking for good.

In 2013, Greene was diagnosed with lung cancer. She

underwent a lobectomy and began chemotherapy, but was forced to

discontinue it after it led to permanent kidney damage. By

2018, the cancer had spread to her brain, necessitating multiple

surgeries and radiation; the continuing cancer recurrence also

makes her ineligible for a kidney transplant.

b. The conspiracy among Philip Morris and other cigarette

manufacturers. One of the plaintiffs' expert witnesses, Dr.

Kenneth Cummings, provided extensive testimony regarding the

cigarette industry and the conduct of its members. In December

of 1953, the executives of the largest American tobacco

companies, including Philip Morris, met in New York City to

discuss a coordinated response to published studies

substantiating a link between smoking and lung cancer. Although

they internally admitted "that their own advertising and
 6

competitive practices have been a principal factor in creating a

health problem,"6 they committed to a "united front against the

claims that . . . cigarette smoking causes cancer." To that

end, they hired a public relations firm to undertake a "positive

. . . entirely 'pro-cigarettes'" campaign, and established the

Tobacco Industry Research Committee (later renamed the Council

for Tobacco Research).7

A primary strategy of the coordinated campaign was "to

overwhelm" the voices of those who challenged cigarettes as

unhealthy "with mass publication of opposed viewpoints." Its

first salvo was a full-page statement published in over 400

newspapers in January of 1954, titled "A Frank Statement to

Cigarette Smokers," and signed by fourteen cigarette and tobacco

companies, including Philip Morris. Contrary to the

understanding reflected in the signatories' internal company

documents, the statement told the public that "there is no proof

that cigarette smoking" caused cancer, and that the cigarette

6 The attendees were also well aware of the addictive nature
of cigarettes. One executive noted, "It's fortunate for us that
cigarettes are a habit they can't break."

7 They elected to act through an "informal committee" rather
than establish a trade association because of antitrust
concerns. In a 1978 memorandum, this research committee would
be referred to by an industry executive as a "front" and a
"shield" for the industry.
 7

companies "believe[d] the products [they] make are not injurious

to health."

For decades, the cigarette companies continued to publicly

deny that smoking caused cancer or was addictive, even as their

internal documents showed otherwise. The record is rich with

examples, with a representative sample here focusing on Philip

Morris: In 1955, Philip Morris's research head said on a news

program that there was "[nothing in smoke] that give[s] us any

cause for concern." In response to a critical 1964 report by

the Surgeon General, a Philip Morris director told CBS News that

the industry denied that there were "any bad elements" in

cigarette smoke. In a 1976 interview, a Philip Morris executive

denied that any research existed that could prove that its

products caused cancer, implored viewers to "read both sides" of

the issue, and promised that "if the company, as a whole,

believed cigarettes were really harmful, we would not be in the

business." In 1994, Philip Morris's president testified before

Congress that there was no proof that smoking was addictive or

caused cancer.

As Dr. Cummings summarized, Philip Morris and its fellow

cigarette manufacturers spent billions of dollars to execute a

pervasive and long-lasting public relations campaign "to hide

the truth about what they knew about the dangers of their
 8

cigarettes." This campaign lasted through Greene's childhood

and the entire period that she smoked.

c. Cigarette manufacturers and alternative product lines.

Dr. Cummings also testified regarding the efforts of cigarette

companies to design and market different cigarette product

lines. Philip Morris's head of sales determined in 1964 that,

given the persistent health-based opposition to cigarette

smoking, it would be advantageous for the industry to "give

smokers a psychological crutch and a self-rationale to continue

smoking."

One form of "crutch" was alternative product lines, which

included "filtered" or "light" cigarettes. According to Dr.

Cummings, cigarette manufacturers introduced these "as a way of

reassuring smokers you could still do it and not suffer the same

risks."8 Internal Philip Morris market research bore this out,

showing that many consumers believed light cigarettes to be

healthier than regular cigarettes. This belief, however, was

misplaced: research by Philip Morris showed that smokers of

light cigarettes would adjust their manner of smoking, resulting

8 Additional testimony on this subject was provided by the
plaintiffs' marketing expert, Dr. Marvin Goldberg, who opined
that (1) Philip Morris principally targeted teenagers in its
advertising and marketing, (2) Philip Morris's promotion
conveyed that its Marlboro Light cigarettes were safer than
regular cigarettes, and (3) Philip Morris's advertising and
marketing successfully caused consumers to both start smoking
and, once started, to continue smoking.
 9

in equal or greater amounts of tar and nicotine consumption

compared to smoking nonlight cigarettes. Philip Morris never

disclosed this to its consumers.9 Finally, Philip Morris never

disclosed to its consumers that internal research it conducted

in the late 1970s showed that the smoke of its filtered

cigarette products, such as Marlboro Lights, was more mutagenic

than the smoke from its regular cigarettes. Mutagenicity refers

to the ability of a substance to damage deoxyribonucleic acid

(DNA); damaged DNA is the first step toward development of

cancer.

2. Discussion. a. Evidence of conspiracy. Philip Morris

argues that there was insufficient evidence at trial to support

the jury's findings of liability on the claims alleging civil

conspiracy. Massachusetts law recognizes two distinct theories

of liability under the umbrella term of "civil conspiracy":

"concerted action" conspiracy, Gurney v. Tenney, 197 Mass. 457,

466 (1908); and "true conspiracy" based on coconspirators

exerting "some 'peculiar power of coercion,'" Fleming v. Dane,

304 Mass. 46, 50 (1939), quoting DesLauries v. Shea, 300 Mass.

9 Philip Morris marketing used tar and nicotine delivery
measurements from a standardized Federal Trade Commission (FTC)
"smoking machine" test. Philip Morris knew that such numbers
were inaccurate in real-world smoking scenarios and that, even
if the FTC test showed lower numbers for light as compared to
regular cigarettes, smokers would not actually receive less tar
and nicotine from light cigarettes.
 10

30, 33 (1938). See Kurker v. Hill, 44 Mass. App. Ct. 184, 188

(1998). The jury returned a verdict for Greene on both

theories, including independent findings of causation, and thus

we may uphold the jury's verdict if we find either theory

supported by the evidence and otherwise free of error. Evans,

465 Mass. at 423 n.7 ("With separate findings of causation, a

jury's award of compensatory damages may be affirmed on appeal

on one theory of liability even where an appellate court finds

instructional error or insufficiency of evidence as to another

theory").

We first turn to the concerted action theory, which is

"akin to a theory of common law joint liability in tort." Aetna

Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1564 (1st Cir.

1994). This theory "applies to a common plan to commit a

tortious act where the participants know of the plan and its

purpose and take affirmative steps to encourage the achievement

of the result." Kurker, 44 Mass. App. Ct. at 189, quoting Stock

v. Fife, 13 Mass. App. Ct. 75, 82 n.10 (1982). See Gurney, 197

Mass. at 466 ("if [defendants] acted jointly, each would be

liable for any actionable representations made by the others by

which the wrong was finally accomplished"). See also Kyte v.

Philip Morris Inc., 408 Mass. 162, 167 (1990) (conspiracy claim

must fail where "record shows that there was no common design or
 11

concerted action between Philip Morris and [retail seller of

cigarettes]").

Here, the underlying tort Greene alleged was fraudulent

misrepresentation -- that Philip Morris and its coconspirators

misrepresented the health consequences of cigarettes and their

addictiveness. See Masingill v. EMC Corp., 449 Mass. 532, 540

(2007), quoting Kilroy v. Barron, 326 Mass. 464, 465 (1950) ("To

recover for fraudulent misrepresentation, a plaintiff 'must

allege and prove that the defendant made a false representation

of a material fact with knowledge of its falsity for the purpose

of inducing the plaintiff to act thereon, and that the plaintiff

relied upon the representation as true and acted upon it to

[her] damage'"). Apart from referring to an "alleged"

conspiracy, Philip Morris does not on appeal dispute that the

plaintiffs introduced sufficient evidence of agreement between

it and the other cigarette entities to deceive the public about

the dangers of smoking, nor does it dispute the falsity of many

of the coconspirators' statements in evidence. Further, Philip

Morris does not dispute the evidence of medical causation, i.e.,

that smoking causes the type of cancer from which Greene

suffered.

Instead, Philip Morris attacks the causal connection

between the conspirators' acts and Greene's smoking, especially

reliance. It first asserts that the plaintiffs failed to show
 12

that Greene actually relied upon any of the coconspirators'

misrepresentations, citing to Greene's testimony that she

started smoking because of Marlboro advertisements that said

nothing at all about the risks of smoking, and her admission

that she had not read (nor even heard of) various documents

prepared by the conspirators, including those produced by the

Tobacco Industry Research Committee.

This view of the evidence is far too narrow. In assessing

sufficiency of the evidence "[w]e review the evidence in the

light most favorable to the jury verdict, assessing whether

anywhere in the evidence, from whatever source derived, any

combination of circumstances could be found from which a

reasonable inference could be drawn in favor of the plaintiff"

(quotation and citation omitted). Devaney v. Zucchini Gold,

LLC, 489 Mass. 514, 528 (2022). Through that lens, the evidence

showed that the conspiracy, of which Philip Morris was a

significant part, undertook a unified, pervasive campaign to

hide the true health risks of smoking from prospective and

actual smokers, by overwhelming and drowning out the voices

seeking to establish the dangers of smoking with mass

publication of false and deceptive pseudoscientific statements

regarding their safety. The effect was to create a smoke screen

of deception and disinformation concealing the true dangers of

cigarette smoking, including the dangers of the "low tar and
 13

nicotine" cigarettes being marketed to her as a safer

alternative, despite the industry's knowledge of compensation

and the mutagenic effects of smoking such cigarettes. A

reasonable jury could conclude that Greene was exposed to this

smoke screen of misinformation, or at least its over-all

effects, as well as the deceptive marketing campaign,

particularly that directed at low tar and nicotine cigarettes,

and that all of this fraud and deception helped to conceal the

dangers of continuing to smoke from her. See Sullivan v. Five

Acres Realty Trust, 487 Mass. 64, 73-74 (2021), quoting Boston

Five Cents Sav. Bank v. Brooks, 309 Mass. 52, 55 (1941)

("Deception need not be direct to come within reach of the law.

Declarations and conduct calculated to mislead and which in fact

do mislead one who is acting reasonably are enough to constitute

fraud").

Of course, plaintiffs seeking to prove reliance must do

more than introduce evidence that falsehoods were in the air,

however pervasively: they must establish causation by proving

that they themselves relied on those falsehoods. "The element

of reliance overlaps with (and may be considered a form of) the

usual requirement in tort that a defendant's wrong be a factual

or 'but for' cause of the harm that the plaintiff suffered."

Restatement (Third) of Torts: Liability for Economic Harm § 11

comment a (2020). See Prentice v. R.J. Reynolds Tobacco Co.,
 14

338 So. 3d 831, 838-840 (Fla. 2022) (discussing reliance as

applied to fraud claims against cigarette companies). "Only

recipients of the defendants' statements were capable of being

deceived by those statements. No statements, no deception, no

causation." Prentice, supra at 840.

In the case at bar, we conclude that Greene has met this

requirement by introducing evidence of her detrimental reliance

on the conspiracy's misrepresentations regarding filtered

cigarettes. Philip Morris represented that such products,

including Marlboro Lights, delivered lower tar and nicotine and

were a healthier alternative to regular cigarettes. Given

Philip Morris's research regarding compensation and

mutagenicity, the jury could find that these representations

were knowingly false. Greene testified that she received these

false messages, that she believed them, and that she switched to

Marlboro Lights because of this belief. Particularly against

the backdrop of her exposure to the conspiracy's broader

disinformation campaign, a reasonable jury could conclude that

Greene was exposed to the fraud and deception in the particular

marketing and messaging regarding filtered cigarettes and that

she relied on it to justify her continuing to smoke Marlboro

Lights. Compare Philip Morris USA Inc. vs. Holliman, Fla. Dist.

Ct. App., No. 3D19-1739 (Dec. 14, 2022) (finding sufficient

evidence of reliance where testimony was that [1] coconspirators
 15

made misrepresentations regarding health risks of smoking on

television programs, [2] decedent watched those or similar

programs, and [3] after watching them decedent expressed belief

that smoking was not harmful and continued to smoke), with Brown

v. R.J. Reynolds Tobacco Co., 38 F.4th 1313, 1324 (11th Cir.

2022) (finding insufficient evidence of reliance where plaintiff

only testified to "brief recollection of a Marlboro Man

advertisement, but . . . could not explain what it was about the

Marlboro Man advertisement that influenced her decision to

smoke").

Philip Morris also argues that Greene could not rely on the

conspirator's statements to her detriment because she testified

that she was aware that smoking was dangerous, yet chose to

smoke anyway. Cf. Laramie v. Philip Morris USA Inc., 488 Mass.

399, 403 (2021) ("Philip Morris argued that [decedent] caused

his own death because, despite being adequately informed of the

health risks of smoking, [he] chose to smoke, and then chose not

to quit smoking"). This argument again oversimplifies the

evidence. The conspirators expressly misrepresented to the

public that they would not have been in the business of selling

cigarettes if cigarettes were truly dangerous, and Greene

explicitly bought into that false messaging. Given the extent

of the efforts of the coconspirators to deceive the public and

conceal the health risks of smoking -- including its highly
 16

addictive nature and the comparative dangers of filtered

cigarettes, which were marketed as being lower in tar and

nicotine and, thus, a safer alternative when the conspirators

knew they were not due to compensation -- the jury could have

found that Greene would have smoked less, or quit sooner, absent

the conspiracy's campaign of fraud and deception. See United

States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 475

(D.D.C. 2006), aff'd in part and vacated in part, 566 F.3d 1095

(D.C. Cir. 2009), cert. denied, 561 U.S. 1025 (2010) ("even

though low tar smokers may have a greater desire to quit, the

misperception of increased safety associated with low tar

cigarettes persuades them to avoid quitting"). Indeed, Greene's

decision to switch to Marlboro Lights shows that her perception

of the health impact of smoking affected her smoking choices.

In sum, the plaintiffs introduced sufficient evidence to

support the verdict in their favor for civil conspiracy.10 The

10Because we find Greene's concerted action theory of civil
conspiracy to be supported by the evidence, we need not evaluate
the alternate theory found by the jury, that of true conspiracy.
See Evans, 465 Mass. at 423 n.7. To prevail on a true
conspiracy claim, a plaintiff must prove that alleged
conspirators agreed to accomplish an unlawful purpose or "a
lawful purpose by unlawful means," Willett v. Herrick, 242 Mass.
471, 479-480 (1922), and then caused harm to the plaintiff via
"some 'peculiar power of coercion'" that they would not have
had, had they been acting independently (citation omitted),
DesLauries, 300 Mass. at 33. We have noted, however, that
"instances of conspiracy which is in itself an independent tort
are rare and should be added to with caution." Fleming, 304
 17

trial judge did not err in denying Philip Morris's motion for

judgment notwithstanding the verdict or for a new trial.

b. Jury instructions, and objections. The defendant,

relying on our recent decision in Doull, 487 Mass. 1, contends

that the judge erroneously instructed the jury on causation on

all counts, including the conspiracy counts, by including

language about substantial contributing factor rather than but-

for causation. In Doull, supra at 19, we considered the

argument of plaintiffs in a medical negligence case that they

were entitled to a jury instruction on "substantial contributing

factor" causation. We ultimately concluded that "a but-for

standard, rather than a substantial factor standard, is the

appropriate standard for factual causation in negligence cases

involving multiple alleged causes of the harm," when but-for

causation can be established. Id. at 16-17.

In the case at bar, the judge used substantial factor

terminology as part of the jury instructions on conspiracy. On

Mass. at 50. In the instant case, the plaintiffs contend that
the peculiar power of coercion derived from the cigarette
companies' unified, pervasive campaign to hide the true health
risks of smoking, which would not have been so powerful and
effective had companies in the conspiracy broken ranks. As
there is, however, little guiding authority for the application
of the true conspiracy theory in the context of cigarette
litigation, see Philip Morris USA Inc. v. Putney, 199 So. 3d
465, 469 (Fla. Dist. Ct. App. 2016), overruled in part by Odom
v. R.J. Reynolds Tobacco Co., 254 So. 3d 268 (2018), we conclude
it to be prudent not to address and resolve the issue
unnecessarily.
 18

the concerted action theory, however, the judge also further

defined substantial contributing factor to mean that the

plaintiff "reasonably relied on a false statement and that she

was injured as a result." The judge also instructed on the

power of coercion theory, that the jury were to determine

whether the "cancer resulted from the power exercised by" the

conspirators. As such, the inclusion of substantial

contributing factor language did not invite the jury to skip the

causation inquiry altogether. See Doull, 487 Mass. at 15

(including instruction on substantial contributing factor

without but-for causation instruction in cases in which but-for

causation can be established "invite[s] jurors to skip the

factual causation inquiry altogether").

To pursue its argument on this issue on appeal, however,

Philip Morris must show that it properly raised and argued it

before the trial court. "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 retire[] 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). "The primary purpose of the rule is to put

the judge on notice of the issue," and thus, "[a] party
 19

objecting to the inclusion or exclusion of an instruction must

. . . clearly bring the objection and the grounds for it to the

attention of the judge." Rotkiewicz, supra at 751.

No such notice was given here on the conspiracy

instructions. The manner in which Philip Morris's trial counsel

treated each claim during the charge conference provides an

instructive contrast. The parties began the charge conference

by discussing the instructions for Greene's warranty claim.

Philip Morris requested a more explicit "but-for" causation

instruction, in substitution for, or in addition to, the judge's

proposed instruction on "substantial contributing factor"

causation. The conference next turned to the plaintiffs'

negligence claim. Here, counsel for Philip Morris referenced

his earlier "vociferous and long-winded" objection regarding the

substantial contributing factor language.11

The transcript of the discussion of the proposed

instructions on conspiracy, however, tells a different story.

There, counsel for Philip Morris made no substantive objection,

or even reference to his prior objections to the substantial

11We disagree with Philip Morris that any further objection
would have been futile. Although the trial judge at times
expressed some exasperation with Philip Morris's counsel during
the charge conference, she also assured him multiple times that
he had the right to lodge objections as he saw fit, and she made
some changes in response to his requests, including in her
instruction on foreseeability on the negligence count.
 20

contributing factor language.12 Indeed, his only recommendation

regarding causation instructions on the conspiracy was a

grammatical correction. In contrast to the warranty claim,

where the objection was made, and the negligence claim, where

the objection was at least briefly raised, there is no

indication in the record that the judge was on notice of Philip

Morris's objection to the causation instructions on the

12To be sure, "the requirements of [Mass. R. Civ. P.
51 (b)] may be satisfied in a variety of ways." Rotkiewicz, 431
Mass. at 751. But the cases where we have found them satisfied
have consistently contained more evidence of the judge being on
notice than we find in the case at bar. In Tenczar v. Indian
Pond Country Club, Inc., 491 Mass. 89, 98 (2022), failure to
object to a final jury instruction was not waiver where the
contested issue had been raised in "opening remarks, throughout
trial, and in multiple motions," with the parties and the judge
having had multiple opportunities to argue the issue.

Similarly, in Rotkiewicz, 431 Mass. at 751-752,
notwithstanding that it would have been "better practice . . .
for defense counsel to renew the objection, with specificity,"
we concluded that there was no waiver where the trial judge
"acknowledge[d] his awareness of the issue, explicitly ruled on
it, and expressed his intention not to instruct as requested."
Nowhere in the case at bar, however, did the defendant object to
the causation instructions as to the conspiracy causes of
action, and nowhere did the trial judge acknowledge that she had
considered the specific issue and noted Philip Morris's specific
objection. See Flood v. Southland Corp., 416 Mass. 62, 66
(1993) ("Counsel proceeds at considerable peril in objecting to
a jury charge simply by reference to discussions had, and
rulings made, during a charge conference, in the absence of some
acknowledgement by the judge that the procedure was sufficient
to alert the judge to the grounds of the objection"). There
were also, as emphasized supra, multiple aspects to the
causation instruction on the conspiracy counts, and not just
substantial contributing factor language, making the objection
to substantial contributing factor language in the warranty and,
arguably, negligence contexts even less meaningful.
 21

conspiracy claims, including the substantial factor language.

The judge's instructions on conspiracy also, as explained supra,

included specific causation requirements making clear, on the

concerted action theory, that "substantial contributing factor"

meant that the plaintiff "reasonably relied on a false statement

and that she was injured as a result," and on the power of

coercion theory, that the jury were to determine whether the

"cancer resulted from the power exercised by" the conspirators.13

If these additional causation instructions and clarifications

were not enough to satisfy Philip Morris, it needed to expressly

say so. Accordingly, the issue is waived.

c. Evidence of violation of G. L. c. 93A. After the jury

verdict, the trial judge considered Greene's G. L. c. 93A claim.

Because this claim is limited to Philip Morris's conduct after

G. L. c. 93A's amendment in 1979,14 to prevail, Greene was

required to show a causal link after 1979 between Philip

Morris's deception regarding Marlboro Lights -- the only

13We note that the judge was not simply copying from the
model instructions on conspiracy. Rather she added case-
specific causation language. The conspiracy instructions'
tailored nature should have been another indication to Philip
Morris that it needed to lodge specific objections to the
particular causation language proposed.

14"The relevant 1979 amendments thus clarified that the
Legislature intended to permit recovery when an unfair or
deceptive act caused a personal injury loss . . . even if the
consumer lost no 'money' or 'property.'" Hershenow v.
Enterprise Rent-A-Car Co. of Boston, 445 Mass. 790, 798 (2006).
 22

cigarette Greene was smoking by that point -- and her cancer.

As the trial judge explained, Greene was required to "establish

that Philip Morris's deceptive statements caused her to continue

to smoke."15 See Casavant v. Norwegian Cruise Line Ltd., 460

Mass. 500, 503 (2011). See also Iannacchino v. Ford Motor Co.,

451 Mass. 623, 630 n.12 (2008).

The trial judge found such deception and a causal link to

Greene's continued smoking. She found that Greene, a regular

smoker since 1971, quit smoking Marlboro Reds sometime around

1979-1980, and then relapsed and switched to smoking Marlboro

Lights. The judge further found that from 1979 until Greene

stopped smoking in 1995, Philip Morris engaged in unfair and

deceptive acts within the meaning of G. L. c. 93A. More

specifically, the judge found that Philip Morris marketed

Marlboro Lights as a cigarette with lower tar and nicotine, even

though

"Philip Morris knew and failed to disclose that due to
smoker compensation, Marlboro Lights did not deliver lower
levels of tar and nicotine as compared to Marlboro Reds.
Philip Morris also knew and failed to disclose that the
smoke from Marlboro Lights was more mutagenic, and,
therefore, more likely to cause genetic damage as compared
to the smoke from Marlboro Reds. Finally, Philip Morris
knew that consumers believed that Marlboro Lights were
healthier than Marlboro Reds. Nevertheless, despite this
knowledge, Philip Morris continued to market Marlboro
Lights as a lower tar and nicotine cigarette until 2003,

15There is no dispute on appeal that there was sufficient
evidence introduced at trial to prove that Greene's smoking
caused her cancer.
 23

with the intention of misleading consumers into believing
that Marlboro Lights were a healthier alternative to
Marlboro Reds."

The judge also found that this deception caused Greene to

switch to Marlboro Lights and continue to smoke:

"[Greene] switched to Marlboro Lights because she believed
that if she smoked them, as opposed to Marlboro Reds, she
would have a reduced risk of health problems. Her
motivation to quit was diminished as long as she held this
belief. In light of Philip Morris's explicit efforts to
convince consumers that Marlboro Lights were a healthier
option, it was reasonable for [Greene] to hold this
belief."

The judge further found that "such deception played a material

role in [Greene's] choice to smoke Marlboro Lights" and that,

ultimately, her cancer was caused by her continuing to smoke

Marlboro Lights.

Philip Morris challenges only the trial judge's finding of

causation, arguing that, where Greene was already addicted to

cigarettes prior to 1979, any of its advertising messages after

that point could not have influenced her smoking choices. See

DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 101 (1983). We

disagree. As the trial judge found, Greene switched to Marlboro

Lights after quitting for a period in 1979-1980. During this

time, and for years afterwards, Marlboro Lights were being

promoted as a smoking option with lower tar and nicotine, and

thus a healthier alternative to regular Marlboros. Reducing her

exposure to tar and nicotine was also Greene's motivation for
 24

switching to Lights. Further, there was evidence from internal

Philip Morris documents and expert testimony that smokers

regarded light cigarettes as an alternative to quitting. This

evidence as a whole supported the trial judge's determination

that Philip Morris's deceptive acts caused Greene to switch to

light cigarettes and continue smoking, rather than quit.

Finally, the trial judge trebled the damages, concluding

that "Philip Morris's conduct was indeed willful and knowing.

Philip Morris engaged in a systematic and sustained effort to

deceive consumers, including [Greene,] about the relative health

risks of Marlboro Lights." As there was ample evidence of a

willful and knowing deception, we affirm the trial judge's G. L.

c. 93A decision in full.

d. Statutory interest rate. On the matter of interest

imposed on awards of damages, two statutes are directly at issue

here: G. L. c. 231, § 6B (prejudgment interest); and G. L.

c. 235, § 8 (postjudgment interest). Section 6B provides the

fixed rate imposed:

"In any action in which a verdict is rendered or a finding
made or an order for judgment made for pecuniary damages
for personal injuries to the plaintiff or for consequential
damages, or for damage to property, there shall be added by
the clerk of court to the amount of damages interest
thereon at the rate of twelve per cent per annum from the
date of the commencement of the action even though such
interest brings the amount of the verdict or finding beyond
the maximum liability imposed by law" (emphasis added).

Section 8 complements this provision, stating in relevant part:
 25

"When judgment is rendered . . . upon the verdict of a jury
or the finding of a justice, interest shall be computed
upon the amount of the . . . verdict or finding from the
time when made to the time the judgment is entered. Every
judgment for the payment of money shall bear interest from
the day of its entry at the same rate per annum as provided
for prejudgment interest . . . ."

Philip Morris argues that the twelve percent pre- and

postjudgment interest rates, under current market conditions,

are excessive in violation of its due process rights under the

Federal and State Constitutions and cannot survive rational

basis judicial review. Demonstrating a lack of rational basis

is a high bar for Philip Morris to overcome. Under this

standard, the statute must only "bear a reasonable relation to a

permissible legislative objective" (quotation and citation

omitted). Klein v. Catalano, 386 Mass. 701, 707 (1982).

Furthermore, "it is well settled that a statute is presumed to

be constitutional and every rational presumption in favor of the

statute's validity is made" (quotation and citation omitted).

Gillespie v. Northampton, 460 Mass. 148, 152 (2011). "The

challenging party bears the burden of demonstrating beyond a

reasonable doubt that there are no conceivable grounds [that]

could support its validity" (quotations and citation omitted).

Id. at 152-153.

As we have explained, "[t]he purpose of prejudgment

interest under G. L. c. 231, § 6B, is 'to compensate a damaged

party for the loss of use or the unlawful detention of money'"
 26

(citation omitted). McEvoy Travel Bur., Inc. v. Norton Co., 408

Mass. 704, 717 (1990). The same is true for postjudgment

interest. Both are intended to make the injured party whole.

See id. The purpose of these statutes is "not to penalize the

wrongdoer" or provide punitive damages. See id.

Despite drawing a clear distinction between compensatory

and punitive damages, we have been somewhat less clear regarding

awards with interest that result in overpayment to the damaged

party. Although "[t]he damaged party is entitled to a return on

the money that the party would have had but for the other

party's wrongdoing[, t]o give the damaged party more than that

would go beyond the purpose of the statute." Id.

Counsel for Philip Morris essentially argues that "a

significantly above-market interest rate, i.e., a flat twelve

per cent rate," in today's much lower interest rate environment

as compared to when the rate was set in 198216 provides "a

windfall for plaintiffs, mak[ing] them 'more than whole,'" and

thus "run[s] contrary to the policy underlying interest awards."

See Secretary of Admin. & Fin. v. Labor Relations Comm'n, 434

16We have previously discussed and reviewed the limited
legislative history of the fixed interest rate in G. L. c. 231,
§ 6B: "In 1974, the Legislature fixed interest at eight per
cent per annum. St. 1974, c. 224, § 1. The rate was increased
to ten per cent in 1980, St. 1980, c. 322, § 2, and the present
twelve per cent . . . rate in 1982. St. 1982, c. 183, § 2."
Secretary of Admin. & Fin. v. Labor Relations Comm'n, 434 Mass.
340, 347 n.10 (2001).
 27

Mass. 340, 346-347 (2001) (Labor Relations Comm'n). This rate,

Philip Morris argues, provides "a strong incentive to settle

cases or to not appeal cases that would otherwise not be settled

and would otherwise be appealed," rendering it more punitive

than compensatory.

The plaintiffs disagree, explaining that, because the time

periods during which interest accrues have highly variable

market rates, the statutory rate avoids such fluctuations and

promotes administrative ease in calculating the loss of use of

money -- all of which, the plaintiffs claim, provide reasonable

legislative purposes. See Charles D. Bonanno Linen Serv. v.

McCarthy, 708 F.2d 1, 12 (1st Cir.), cert. denied, 464 U.S. 936

(1983) ("Section 6B establishes a simple, mechanical rule").

They further note that the twelve percent interest rate is not

out of line when compared to the rate of return on the S&P 500

stock market index.

In response, Philip Morris references two statutes that set

interest rates based on the "[w]eekly average one-year constant

maturity Treasury yield," based on "the calendar week preceding

the date of the judgment." See G. L. c. 231, § 6I (judgments

against Commonwealth);17 G. L. c. 231, § 60K (medical

17In Labor Relations Comm'n, we addressed the fixed twelve
percent rate in G. L. c. 231, § 6B, as applied to remedial
orders issued by the Labor Relations Commission after the
 28

malpractice). While § 6I caps the interest rate, as calculated

by the aforementioned Treasury yield, at "ten percent per

annum," § 60K applies an interest rate of the "Treasury yield

plus [two] per cent," which is then capped at the interest rate

set forth in § 6B -- i.e., twelve percent.18 Pegged to

fluctuating securities, these statutes demonstrate, according to

passage of G. L. c. 231, § 6I. That case is distinguishable
from the facts at hand because our decision there hinged on
changes in the statutory scheme. "Prior to 1993, judgments
against the Commonwealth accrued prejudgment interest at the
rate of twelve per cent per annum." Labor Relations Comm'n, 434
Mass. at 344. That year, however, the Legislature moved away
from the application of the twelve percent fixed interest rates
when the Commonwealth pays the award of damages, and instead
adopted an interest rate based on the "weekly average one-year
constant maturity Treasury yield." See id. at 344, 345-346
(noting amendment of eminent domain statute in same manner). We
concluded that the express language of § 6I now controlled the
Labor Relations Commission's remedial orders, not the more
expansive statutory language in § 6B previously used, and so to
apply § 6B after the passage of § 6I was an error of law. Id.
at 347. We went on to note that "[t]he Legislature's decision
to maintain the twelve per cent rate in certain contexts (e.g.,
tort judgments against private parties) despite fluctuating
conditions [was] undoubtedly its prerogative" (emphasis added;
footnote omitted). Id.

18The Legislature enacted G. L. c. 231, § 60K, in 2004 and
set the total interest rate at "the weekly average [one]-year
constant maturity Treasury yield plus [four] per cent."
St. 2004, c. 149, § 207. The Legislature amended that rate in
2012 to add only two, instead of four, percent to the Treasury
yield. St. 2012, c. 224, § 220. Both the 2004 and 2012
versions, the latter being current, capped the interest rate as
that set forth in G. L. c. 231, § 6B, which has been steady at
twelve percent since 1982, St. 1982, c. 183, § 2 (increasing
rate in § 6B from ten to twelve percent), suggesting that the
Legislature still found a rate of twelve percent acceptable in
the medical malpractice context.
 29

Philip Morris, the absence of any administrative difficulty in

employing a floating rate. Philip Morris further argues that

the stock market involves risk to the investor, while the

statutory interest rate does not, rendering the comparison

inapt.

Although we have found a floating rate of interest to be

"tailored to [fulfill] the public policy goals underlying

interest awards," Labor Relations Comm'n, 434 Mass. at 346, and

the higher fixed interest rate at issue here appears to have a

"baggier" fit, especially in a persistent low-interest economy,

as explained supra, interest rate legislation need not be so

tailored to survive rational basis review. There is no

contention that the challenged statute implicates fundamental

rights or raises equal protection concerns, thus requiring

strict scrutiny review. "Under strict scrutiny review, a

challenged statute may only survive when it is 'narrowly

tailored to further a legitimate and compelling governmental

interest'" (citation omitted). Gillespie, 460 Mass. at 153.

Other statutes, such as this one, however, need only be

"reasonably related to the furtherance of a valid State

interest." Id. "[T]he Legislature's decision to maintain the

twelve per cent rate in certain contexts (e.g., tort judgments

against private parties) despite fluctuating conditions" is
 30

entitled to deference when it has any such rational basis.

Labor Relations Comm'n, supra at 347.

State and Federal courts have upheld similar interest rate

provisions in other States. In 2016, the Vermont Supreme Court

considered nearly identical arguments as those raised by Philip

Morris when reviewing its twelve percent prejudgment and

postjudgment interest statutes. See Concord Gen. Mut. Ins. Co.

v. Gritman, 2016 VT 45 (Gritman). Although the court agreed

that the rate was "incongruous in the context of today's market

conditions," it "conclude[d] that the [twelve percent] rate

[was] reasonably related to the purpose of the statute" -- that

is, to "encourage defendants to settle claims and make prompt

payments after judgment, and ensure that a plaintiff is made

whole." Id. at ¶¶ 32-33. Furthermore, "[t]he Legislature could

reasonably conclude that a fixed rate of simple interest is a

more efficient and predictable way to calculate prejudgment and

postjudgment interest than a floating rate pegged to the

national prime rate." Id. at ¶ 34.19

Similarly, the Rhode Island Supreme Court concluded ten

years ago, in a medical malpractice case, that a twelve percent

prejudgment interest rate "rationally serves a legitimate

19 The Vermont Supreme Court also suggested that adjusting
the interest rates "in periods like the present when market
interest rates are low" is a question "more appropriately
presented to the Legislature." Gritman, 2016 VT 45, ¶ 35.
 31

government interest." Oden v. Schwartz, 71 A.3d 438, 457 (R.I.

2013).20 The court reiterated the same rational purpose that our

jurisprudence has recognized: prejudgment interest

"compensate[s] an injured plaintiff for delay in receiving

compensation to which he or she may be entitled." Id. Again,

contrary to Philip Morris's arguments that such rates have an

improper chilling effect on litigation, the Rhode Island Supreme

Court noted that these statutes "encourage early settlement of

claims" and that such settlement is "a legitimate [S]tate

interest." Id. Moreover, the court concluded that a uniform

rate "is both an expedient and efficient use of judicial

resources." Id.

Also in 2013, in a breach of contract case, the United

States District Court for the Southern District of New York

addressed a due process challenge to New York's statute setting

prejudgment interest at nine percent. Citibank, N.A. v.

Barclays Bank, PLC, 28 F. Supp. 3d 174, 183 (S.D.N.Y. 2013).21

Recognizing that the statute "rationally serves a legitimate

government interest," the court noted the same rationale our

case law provides: compensation to make the prevailing party

20The Vermont Supreme Court cited to this decision in its
reasoning. Gritman, 2016 VT 45, ¶ 33.

21The Vermont Supreme Court also cited to this decision in
its reasoning. Gritman, 2016 VT 45, ¶ 34.
 32

whole while "not [imposing] a penalty against [the] defendant"

(citations omitted). Id. at 184. The court went on to address

the discrepancy between market rates and the higher fixed

statutory rate, explaining that "there is no constitutional

mandate that the statutory interest rate follow market rates

point for point. The appropriate interest rate is not measured

by particular fluctuations in categories of interest rates for

public or private securities lending" (quotation and citation

omitted). Id.

We cannot conclude that the twelve percent interest rate is

either irrational or punitive, as it ensures that plaintiffs who

have won in the trial court are fully compensated for the loss

of the time value of their money during often lengthy periods of

appeal, while the fixed rate makes the final award of damages

particularly easy to calculate. Despite the arguable windfall

this rate provides in a low-interest economy, the interest

amount is comparable to stock market returns over the same

period; the money at issue, whether in the hands of plaintiffs

or defendants, may very well have been so invested, despite the

risk. Furthermore, that this high rate may encourage settlement

does not violate a defendant's due process rights. See, e.g.,

Citibank, N.A., 28 F. Supp. 3d at 184; Oden, 71 A.3d at 457;

Gritman, 2016 VT 45, ¶ 33.
 33

For these reasons, we cannot conclude that the twelve

percent interest rate imposed by G. L. c. 231, § 6B, and G. L.

c. 235, § 8, lacks a rational basis or constitutes punitive,

rather than compensatory, damages.22

3. Conclusion. For the foregoing reasons, we conclude

that the jury's verdict and the trial judge's G. L. c. 93A

findings were supported by the evidence and that Philip Morris

has waived its argument regarding the jury instructions on

conspiracy. We further conclude that the fixed prejudgment and

postjudgment interest rates in G. L. c. 231, § 6B, and G. L.

c. 235, § 8, are not excessive in violation of Philip Morris's

due process rights under the Federal and State Constitutions.

We, therefore, affirm the judgments of the Superior Court and

the orders denying Philip Morris's posttrial motions.

So ordered.

22Prejudgment interest is calculated on the compensatory --
not the punitive multiple -- amount of an award of damages under
G. L. c. 93A. McEvoy Travel Bur., Inc., 408 Mass. at 716-717
("The multiple damage provisions of [G. L.] c. 93A are designed
to impose a penalty . . . . To add prejudgment interest to
these penal damages would compound the penalty and would violate
the purpose of G. L. c. 231, § 6B" [citation omitted]).

As for postjudgment interest, in a case such as this,
"where the amount of actual damages to be multiplied due to a
[willful] or knowing violation of G. L. c. 93A . . . is based on
the amount of an underlying judgment," the judgment amount that
is multiplied "does not include postjudgment interest."
Anderson v. National Union Fire Ins. Co. of Pittsburgh PA, 476
Mass. 377, 378, 385-386 (2017).