NO. _____________ SHANNA SHIPMAN AS NEXT FRIEND OF § IN THE DISTRICT COURT OF SHANNON MOORE, A MINOR § § VS. § JOHNSON COUNTY, TEXAS § PHILIP MORRIS COMPANIES, INC.; § PHILIP MORRIS INCORPORATED; § PHILIP MORRIS U.S.A.; and § SHELLY MOORE § _______ JUDICIAL DISTRICT PLAINTIFF'S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, SHANNA SHIPMAN, AS NEXT FRIEND OF SHANNON MOORE, A MINOR, complaining of PHILIP MORRIS COMPANIES, INC.; PHILIP MORRIS INCORPORATED; PHILIP MORRIS U.S.A. (hereinafter referred to collectively as "Defendant Philip Morris"); and SHELLY MOORE, and for cause of action would respectfully show this Honorable Court the following: I. PARTIES (1) PLAINTIFF SHANNON MOORE is an individual residing in Johnson County, Texas. (2) DEFENDANT PHILIP MORRIS COMPANIES, INC. is a New York corporation which does business in Texas. Service of process may be had pursuant to the Texas Long-Arm Statute by having the Secretary of State mail process to its home office: Philip Morris Companies, Inc. 120 Park Avenue New York, New York 10017 (3) DEFENDANT PHILIP MORRIS INCORPORATED is a New York corporation which does business in Texas. Service of process may be had pursuant to the Texas Long-Arm Statute by having the Secretary of State mail process to its home office: Philip Morris Companies, Inc. 120 Park Avenue New York, New York 10017 (4) DEFENDANT PHILIP MORRIS U.S.A. is a New York corporation which does business in Texas. Service of process may be had pursuant to the Texas Long-Arm Statute by having the Secretary of State mail process to its home office: Philip Morris Companies, Inc. 120 Park Avenue New York, New York 10017 (5) DEFENDANT SHELLY MOORE is an individual residing in Johnson County, Texas. II. VENUE AND JURISDICTION (6) By reason of the facts set out below, Plaintiff Shannon Moore, a resident of Johnson County, Texas, has suffered losses and damages in a reasonable sum that exceeds the minimum jurisdictional limits of the District Court and for which they hereby sue. (7) Defendant, Philip Morris Company was, at the time of this occurrence, and is now engaged in the business of designing, manufacturing and packaging certain products, including the Marlboro 100 cigarette, for sale to and for use by members of the general public. Defendant Philip Morris placed the Marlboro 100 cigarette into the stream of commerce by selling the product to a supplier in the State of Texas. (8) Defendant Shelly Moore resides in Johnson County, Texas. Venue is proper in Johnson County, Texas pursuant to §§15.001, 15.033, 15.037, and 15.061 of the Tex. Civ. Prac. & Rem. Code. III. FIRST CAUSE OF ACTION: STRICT LIABILITY FACTS (9) On or about April 4, 1992, Defendant Shelly Moore, the minor Plaintiff's mother, purchased a pack of Marlboro 100 cigarettes. (10) On or about April 4, 1992, Plaintiff Shannon Moore, then a 21 month old child, was a passenger in a car driven by Defendant Shelly Moore. Late in the afternoon of that day, Defendant Shelly Moore inadvertently and unknowingly allowed a burning Marlboro 100 cigarette to come into contact with the carpeting or upholstery in said vehicle. At approximately 6:00 - 6:15 p.m., Defendant Shelly Moore drove Plaintiff Shannon Moore to the home of Vicki Stacks, Defendant Shelly Moore's aunt, for the purpose of taking Defendant Moore's grandmother a meal. Plaintiff Shannon Moore was left strapped into her child safety seat in the rear of the vehicle. While Defendant Shelly Moore was attending to her grandmother, the aforementioned cigarette ignited the vehicle's interior. At approximately 6:29 p.m., the fire was discovered and Defendant Shelly Moore pulled Plaintiff Shannon Moore from the burning car. As a result of the fire, Plaintiff Shannon Moore suffered third and fourth degree burns over 77% of her body. Also as a result of the fire, Plaintiff Shannon Moore's fingers required amputation. (11) The product in question, the Marlboro 100 cigarette, was defective and unsafe at the time it left the control of Defendant Philip Morris. The product was defectively designed so as to render it unreasonably dangerous to Plaintiff Shannon Moore. In particular, the design has a propensity to too easily ignite carpet and upholstery. A safer alternative design, which would have incorporated "fire-safe" technology, existed at the time the product was manufactured. (12) In 1984, the Cigarette Safety Act created a 15 member Technical Study Group (hereinafter referred to as TSG) to determine the technical and economic feasibility of a fire-safe cigarette. The TSG included representatives from Philip Morris U.S.A., American Tobacco Co., Lorillard, Inc., and R.J. Reynolds Tobacco. In 1987, the TSG's nine-volume final report, endorsed by all 15 members, was submitted to Congress. The report concluded that a safer alternative design was technologically feasible by the application of existing or reasonably achievable scientific knowledge. Specifically, the TSG determined that the ignition propensity of a cigarette can be lowered by: reducing the cigarette's circumference, use of lower density tobacco, use of less porous paper and by reduction of citrate addition to the paper. (13) The safer alternative design would, in reasonable probability, have prevented or significantly reduced the risk of Plaintiff Shannon Moore's injuries, without substantially impairing the product's utility. The TSG determined that "the per puff tar, nicotine, and carbon monoxide from some of the least ignition-prone experimental cigarettes were within the ranges of yields from the best-selling commercial cigarettes." Therefore, a fire-safe cigarette would be no more toxic than those already on the market. (14) Furthermore, the safer alternative design was, in reasonable probability, economically feasible at the time the product left the control of Defendant Philip Morris. When weighed against the untold human suffering which could have been prevented by use of the safer alternative design, there can be little doubt that the fire-safe cigarette was economically feasible. Plaintiff Shannon Moore is living proof of that fact. The design defects set forth above and Defendant Philip Morris' refusal to incorporate the safer alternative design, were the producing cause of Plaintiff Shannon Moore's injuries and damages. As a producing and proximate result of the foregoing, Plaintiff Shannon Moore has suffered the injuries and damages set forth below. IV. DAMAGES (15) As a result of the injuries herein set out, Plaintiff Shannon Moore has suffered damages including, but not limited to the following: A. Physical pain and suffering in the past; B. Physical pain and suffering which, in all reasonable probability, will continue in the future; C. Mental pain and anguish in the past; D. Mental pain and anguish which, in all reasonable probability, will continue in the future; E. Physical impairment in the past; F. Physical impairment which, in all reasonable probability, will continue in the future, including but not limited to loss of bodily function, and the loss of the ability to attend to the activities of daily living; G. Disfigurement in the past; H. Disfigurement which, in all reasonable probability, will continue in the future; I. Reasonable and necessary medical expenses in the past; J. Reasonable and necessary medical expenses which, in all reasonable probability, will continue in the future; K. Lost wages and earning capacity in the past; L. Lost wages and earning capacity which, in all reasonable probability, will continue in the future; M. Loss of enjoyment of life in the past; N. Loss of enjoyment of life which, in all reasonable probability, will continue in the future. V. SECOND CAUSE OF ACTION: BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY (16) Plaintiff incorporates paragraphs 1 through 14 of this Petition herein. (17) Defendant Philip Morris impliedly warranted to the general public and specifically to the Plaintiff's mother Shelly Moore, that Marlboro 100 cigarettes were of merchantable quality and were safe and fit for the purpose intended when used under ordinary circumstances and in an ordinary manner. Defendant Philip Morris was a merchant with respect to the product in question and the goods were not merchantable as warranted. More specifically, Marlboro 100 cigarettes lack the features necessary to adequately reduce the risk of igniting upholstered furniture. In this connection, Defendant Philip Morris did not incorporate the fire-safe technology recommended by the TSG into the design of the Marlboro 100 cigarette. Defendant Philip Morris failed to: reduce the circumference of the cigarette, lower the tobacco density, use less porous paper and reduce the citrate addition to the paper. (18) As a proximate result of Defendant Philip Morris' breach of the foregoing warranty, Plaintiff Shannon Moore has suffered the injuries and damages previously set forth. VI. THIRD CAUSE OF ACTION: NEGLIGENCE (19) Plaintiff incorporates paragraphs 1 through 17 herein. (20) Defendant Philip Morris violated the duty owed to Plaintiff Shannon Moore to exercise ordinary care and diligence in designing the Marlboro 100 cigarette, and was negligent in the following particulars: A. In failing to design the product in a manner which reduced the cigarette's propensity to ignite upholstered furniture. A safer alternative design existed and would have been incorporated by a reasonable and prudent manufacturer under the same or similar circumstances. B. In failing to reduce the circumference of the Marlboro 100 cigarette. C. In failing to lower the density of the tobacco in the Marlboro 100 cigarette. D. In failing to use less porous paper in the Marlboro 100 cigarette. E. In failing to reduce the amount of citrate in the Marlboro 100 cigarette. F. In failing to utilize a combination of the above mentioned safety measures. G. In failing to incorporate any other available alternatives, known by the industry in general and Defendant Philip Morris in particular, to reduce the cigarette's propensity to ignite upholstered furniture. Each and every one of the foregoing acts and omissions, taken separately and collectively, constitute a direct and proximate cause of the injuries and damages previously set forth. (21) Defendant Shelly Moore was negligent in not properly attending her child, and in inadvertently allowing a cigarette to contact the interior of her vehicle. This negligence was a proximate cause of Shannon Moore's injuries and damages. VII. EXEMPLARY DAMAGES (22) Defendant Philip Morris' actions constitute a heedless and reckless disregard for Plaintiff Shannon Moore's rights, and were, therefore, of such a character as to make Defendant Philip Morris guilty of gross negligence. In particular, Defendant Philip Morris knew of the product's propensity to ignite upholstery and automobile interiors and deliberately decided not to incorporate a technologically and economically feasible alternative design. Their actions involved such entire want of care as could have only resulted from actual conscious indifference to the right, safety, or welfare of Plaintiff Shannon Moore and Plaintiff therefore sues for exemplary damages as allowed by law. VIII. PREJUDGMENT INTEREST (23) The above and foregoing acts and/or omissions of Defendants have caused damages to Plaintiff that entitle Plaintiff to prejudgment interest on the damages sustained. WHEREFORE, Plaintiff requests that Defendants be cited to appear and answer, and that on final trial Plaintiff have a judgment against Defendants for an amount in excess of the minimum jurisdictional limits of the Court, together with interest and costs of court, and for such other and further relief to which Plaintiff may be justly entitled. Respectfully submitted, WALTMAN & ASSOCIATES ________________________________ Lynn A. Grisham State Bar No. 08505500 3833 South Texas Avenue Suite 150 Bryan, Texas 77802 Telephone 409/846-2040 Facsimile 409/846-7914 MACLEAN & BOULWARE John MacLean State Bar No. ___________ 116 E. Henderson Street Cleburne, Texas 76031 Telephone 817/645-3700 Facsimile 817/645-3788 ATTORNEYS FOR PLAINTIFF A JURY TRIAL IS DEMANDED MOORE\PLEADING\POP