Cipollone v. Liggett Group Inc.
(Personal Injury, US Dist. Ct. NJ 1983 Withdrawn) Related Cases: Haines v. Liggett Citation: 593 F.Supp. 1146 (20 Sep 1984); 106 F.R.D. 573 (17 Jun 1985 protective order); 785 F2d 1108 (CA 3, 12 Mar 1986 amending protective order); 789 F2d 181 (CA 3, 7, 18 Apr 1986); 802 F2d 658 (CA 3, 29 Sep 1986 judge declined to recuse), 822 F2d 335 (CA 3, 8 Jun 1987 affirming protective order), 893 F2d 541 (CA 3, NJ, 5 Jan 1990); 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (24 Jun 1992)This individual personal injury suit was brought by Antonio Cipollone individually and as executor of the estate of Rose D. Cipollone against Liggett, Philip Morris, and Loew's Theaters on August 1, 1983. After both Rose and Antonio died, the case was maintained by their son Thomas Cipollone, the executor of both estates.
The plaintiff alleged that Rose Cipollone's cigarette smoking was a cause of her small cell lung cancer and death. She began to smoke at age 16 in 1942 and continued until 1983, even after having a lung removed. She was diagnosed with lung cancer in 1981 and died on October 21, 1984. The plaintiff alleged that the defendants together produced advertisements that misled the public. The defendants knew that cigarettes were addicting and used advertising to help smokers believe smoking was not harmful. They prevented the publication of research showing the danger of smoking. They withheld production on a safer cigarette despite having functional prototypes available. The plaintiff claimed strict liability and negligent failure to warn and design defect, suppression of research, misrepresentation and concealment. The plaintiff sought monetary damages for medical expenses and pain and suffering.
The defendants argued the mechanism that causes cancer is not known, and that the type of cancer Rose Cipollone had was atypical carcinoid, which is not caused by smoking. Regarding the issue of failure to warn, the defendants argued that the risks of smoking were common knowledge. They argued that animal tests did not translate to human risk of lung cancer and that no cigarette was produced that were less likely to cause lung cancer in human beings. They also argued that Rose Cipollone assumed the risk when she began smoking, that she was not addicted and could and did quit for a time.
The case was heard in the United States District Court for the District of New Jersey (Civil Action No. 83-2864(SA)) before the Honorable H. Lee Sarokin. On September 20, 1984, the judge (593 F.Supp. 1146) denied the defendants' motion for summary judgment. He found that the Federal Cigarette Labeling and Advertising Act did not expressly or impliedly preempt the claims. By establishing a uniform warning, Congress did not prevent an individual from taking on the difficult task of proving that warning inadequate under state common law claims. The Act did preempt the regulation of labeling and advertising, but did not bar litigation on the issue even if it may motivate the defendant to additional warnings. The judge held that Congress did not intend to occupy the field of common law products liability. Also, even if the defendants chose to put additional warnings on their package, that choice would not be in conflict with the Act.
The United States Court of Appeals, Third Circuit (789 F.2d 181) reversed the decision in part and remanded the case on April 7, 1986 (amended April 18, 1986). The court found no express preemption, instead relying on an implied preemption. It ruled that the Act did not create so pervasive a scheme to preempt all claims. The Act did preempt state law claims based on smoking and health challenging the adequacy of warning on packages or advertisements and claims where success depended on whether the defendant had a duty to provide warning to the consumers.
Following the remand, on December 9, 1986, the United States District Court, New Jersey (649 F.Supp. 664), in a joint opinion with Haines, clarified the effect of the Circuit Court's decision on its earlier opinion. The parties agreed that failure to warn and negligent advertising claims arising after 1965, but not before, were preempted by the Circuit Court's ruling. A claim that safer cigarettes could have been made was not preempted by the Act or by the plaintiff's answers to interrogatories. Strict liability claims based on a risk-benefit analysis could not be preempted at the pleadings stage. There was not sufficient evidence at this stage of the trial, however, to dismiss the defense of preemption. Arguments of state of the art were not preempted. A claim that the defect in cigarettes neutralized warnings was preempted regardless of the intentionality of the action. A claim for negligent testing was not preempted because it was based on the state-imposed duty to use reasonable care to provide a suitable product. Conspiracy claims to conceal scientific data was not preempted. An express warranty claim was preempted.
On October 27, 1987, the judge (F.Supp., 1987 WL 14666 (D.N.J.)) granted the defendants' motion for partial summary judgment on the "risk/utility" theory of strict liability following the passage of a state law concerning product liability. The judge indicated that under the new law, cigarettes could not be defective because their risks were already known to the general public. The law did not create a new rule and was intended to apply immediately to pending cases.
The judge reheard the arguments on December 28, 1987 (1987 WL 31763 (D.N.J.)) but held with its former decision. The law did not delegate the decision of whether a provision is a "new law" to the courts, so the judge had to look to legislative intent to decide the issue. The judge permitted limited discovery to determine the degree of the defendants' attorney's involvement in the state's committee statement. If too involved, the law might not have been applicable in this case. Cigarettes could not have been considered unreasonably dangerous simply because smoking was harmful. However, the plaintiff could make arguments as to adulterated cigarettes.
On April 21, 1988, the judge (683 F.Supp. 1487) granted in part and denied in part the defendants' motion for directed verdict. The judge ruled that the evidence of the safer palladium cigarette did not satisfy proximate cause for the design defect claim because there was insufficient evidence that Mrs. Cipollone would have tried the product if available. The judge granted summary judgment for this claim. The judge granted Philip Morris and Lorillard's directed verdict motion on failure to warn and express warranty claims because the plaintiff did not smoke these brands until after 1966. Liggett's duty to warn of health risks, and whether Liggett made express warranties prior to 1966 were jury questions precluding directed verdict. Any claim of negligent testing fell within the failure to warn or alternative design claims, so the judge granted the directed verdict on that claim. Also questions for the jury were whether the defendants intentionally concealed the consequences of smoking and whether the plaintiff justifiably relied on those representations. The judge also denied a directed verdict with regard to punitive damages.
The case went to trial. On June 13, 1988, the jury found for the defendants on the claims of fraud and conspiracy. It found that prior to 1966, Liggett had failed to warn of smoking risks and proximately caused Mrs. Cipollone's death (20% liability). It also found that Mrs. Cipollone had unreasonably encountered a known danger by continuing to smoke, proximately causing her own death (80% liability). This barred recovery on the failure to warn claim. It also found that Liggett breached an express warranty, awarding $400,000 to Mr. Cipollone.
On August 24, 1988, the judge (693 F.Supp. 208) denied the defendants motion for a new trial or judgment notwithstanding the verdict. The judge held that the express warranty claim was not barred by the four-year statute of limitations or lack of privity, since Liggett offered no proof of these issues in the case, and failed to raise the defense in its motion for directed verdict. Nor was the claim barred for lack of notice. Reliance was not a necessary element of the plaintiff's "basis of the bargain" argument. Without an instruction, the defendants could not raise contributory fault in its motion for judgment notwithstanding the verdict. The judge declined to grant Liggett a new trial since this trial had been fully briefed and argued and the defendants raised several new issues after the verdict. The award of no damages to Mrs. Cipollone was contrary to the evidence and the jury finding that she suffered $124,500 in medical expenses, but the plaintiff was not entitled to a new trial on damages because Mr. Cipollone's award was not inappropriate, and the new trial would necessarily include issues of liability. Prejudgment interest could not be awarded in non-tort product liability actions. The judge refused to add damages for violation of the Consumer Fraud Act because breach of warranty alone did not prove the violation.
The United States Court of Appeals, Third Circuit (893 F.2d 541) affirmed in part, reversed in part, and remanded the case on January 5, 1990. The court found that the jury should not have been allowed to consider post-1965 behavior for comparative fault. Instead it should have considered it as "avoidable consequence" mitigating damages. This entitled the plaintiff to a new trial on the failure to warn claim. The court found it was sufficient for the jury to find that cigarettes were a substantial factor in the plaintiff's injury. Express warranty claims allowed the defendant to prove the plaintiff did not believe the advertisements to refute the "basis of the bargain" claim. Because the lower court's instructions did not include this or require the plaintiff to show Mrs. Cipollone had actually seen the advertisements, the verdict was flawed and had to be set aside. The court found that comparative fault was not appropriate here since any cigarettes purchased after she knew the risks of smoking would not breech any express warranty. Evidence of broad assertions that the cigarettes were harmless was sufficient to show express warranty. The defendants' directed verdict on risk/utility claims should not have been granted, and the case should have proceeded against all three defendants because there was not sufficient evidence of common knowledge prior to 1966. Prejudgment interest was permissible on express warranty claims. The statute of limitations defense raised questions of material fact as to when Mrs. Cipollone first knew she had cancer, precluding summary judgment. The intentional tort claim was preempted by the Act because it was based on the propriety of the defendants' advertising.
The Supreme Court of the United States (505 U.S. 504) reversed in part, affirmed in part, and remanded the case on June 24, 1992. The Court dealt with the 1965 and 1969 versions of the law separately. The express preemption clauses in each implied that other matters were not preempted. The 1965 Act limited preemption to state regulations of warnings and advertisements. The 1969 Act amended the preemption to include any "requirement or prohibition," including common law damage claims. The Court held that the Acts did not preempt state law damage claims. The 1969 Acts did preempt failure to warn claims based on failure to warn based on advertising or promotion, but not those based on testing, research, or other actions. The amended Act did not preempt express warranty, because the requirements were dictated by the defendant in its statements; intentional fraud and misrepresentation, since they are based on a general duty not to deceive and many are based on material facts outside of advertising or promotion; or conspiracy, because it is not a prohibition based on smoking and health.
Despite the order for a new trial, the suit was withdrawn soon after the ruling due to exorbitant costs.