Marlboro cigarettes. Marlboro cigarettes. Photo: Wikimedia Commons

The U.S. Court of Appeals for the Second Circuit, holding that a surviving spouse could represent her husband’s estate in federal court, has reinstated products liability and other claims in a wrongful death lawsuit against Philip Morris on behalf of the estate of a longtime smoker.

In the same decision though, the three-judge panel agreed with the dismissal of claims under the Connecticut Unfair Trade Practices Act and the common-law tort of negligent infliction of emotional distress.

James Pappas had smoked Philip Morris‘ Marlboro cigarettes for more than 60 years until his death at the age of 79 in June 2013, according to a complaint filed by Hazel Pappas, his surviving spouse.

In an opinion handed down Tuesday, a Second Circuit panel reversed a U.S. District Court in Connecticut, which said Hazel Pappas could not represent the estate on a pro se basis.

The federal appellate court, saying that the district court misapprehended rules on pro se representation, reinstated Pappas’ claims for loss of spousal consortium, and the loss of parental consortium claim on behalf of Cassandra and Markos, two of the couple’s five children. In addition, the Second Circuit let stand Pappas’ claims under Connecticut’s Product Liability Act.

The Second Circuit did affirm the district court’s dismissal of claims made under the Connecticut Unfair Trade Practices Act and common-law claims for negligent infliction of emotional distress.

Writing for a unanimous three-judge Second Circuit panel, Judge Gerard Lynch said those claims were dismissed on statute of limitations grounds.

Lynch wrote that the district court misread precedent when it concluded that Connecticut’s rule controlled the circumstances in which a party may appear pro se in federal court.

“Connecticut’s substantive law will not be affected by permitting Pappas to file motions, conduct depositions, or represent the estate at trial,” Lynch wrote,

Lynch did say that “a pro se plaintiff may have difficulty navigating the complex legal process and that it may pose an extra burden on the court.”

Hazel Pappas, the lawsuit says, was informed in March 2016 by a medical professional that her husband’s cigarette smoking caused and aggravated the respiratory and heart disease that killed him.

Hazel Pappas, who lives in New Haven, said her husband began smoking at 12 years old and was unaware of the dangers smoking caused. The lawsuit says James Pappas “was lured into cigarette smoking by a marketing strategy and conspiracy among tobacco companies to glamorize and portray it as normal and a non-dangerous part of American culture.”

“My husband did not know the dangers of smoking when he started smoking,” Hazel Pappas, 83, told the Connecticut Law Tribune Friday. “People need to know that smoking is dangerous. Once they know the dangers, they might not smoke.”

Pappas, who said she did not hire an attorney because she could not afford one, said her husband of 54 years “told me before he died that maybe I should file a lawsuit. He talked to everyone about his death and let them know that he did not want people moaning and groaning and be sad. He wanted them to go on with their lives and remember the happy times.”

Hazel Pappas is seeking an undetermined amount of monetary damages.

Representing Philip Morris are Keri Arnold and Paul Rodney, both with Arnold & Porter Kaye Scholer. Neither attorney responded to a request for comment. Arnold is based in New York and Rodney in Denver.

In court papers, Philip Morris argued that a nonlawyer could not serve as counsel for an estate under Connecticut law.

But the Second Circuit said Connecticut’s procedural law did not have to be applied in the federal case, even when issues of Connecticut substantive law were contested.