Recent Development by C.F. Fenswick
Rose Cipollone began to smoke in 1942 at the age of sixteen. For the first few years, she smoked Chesterfield cigarettes, manufactured by Liggett. She later said she had admired the “pretty girls and movie stars” depicted in the Chesterfield advertisements and had begun smoking to appear “glamorous.” An additional inducement to Mrs. Cipollone to choose Chesterfield cigarettes was Liggett's description of them as “mild.” Mrs. Cipollone interpreted this statement to mean “safe.”
In reality, Rose Cipollone harbored a deep concern for her safety as a smoker from the very beginning. This concern prompted her to switch brands several times during her life. In 1955, she began to smoke L&M filter cigarettes, also manufactured by Liggett. Mrs. Cipollone selected this brand because the filter tip looked fashionable and because she recalled seeing an advertisement in which doctors claimed the filter made the cigarette safer. She switched to Virginia Slims, made by Philip Morris, in 1968 “‘because it was very glamorous and very attractive ... and it was a nice looking cigarette.”’ Safety concerns again prompted her to change brands in the early 1970s, when she began to smoke Philip Morris's Parliament cigarettes. This time Mrs. Cipollone believed that the recessed filter made the cigarette less damaging to her health. Mrs. Cipollone made her final change in 1974, choosing True brand cigarettes manufactured by Lorillard, Inc. These cigarettes were advertised as “low tar.” Regardless of the brand, however, Mrs. Cipollone smoked two packs of cigarettes each day from 1942 until 1982.
Rose Cipollone was diagnosed with lung cancer in 1981, yet she continued to smoke. After one of her lungs was removed in 1982, she began to smoke in secret. She testified that she was addicted to tobacco and could not give it up. Mrs. Cipollone finally stopped smoking in 1983. She died on October 21, 1984.
Before Rose Cipollone's death, Mr. and Mrs. Cipollone filed suit in the Federal District Court of New Jersey seeking damages against Liggett, Philip Morris, and Lorillard. They claimed that smoking the defendants' cigarettes caused Mrs. Cipollone's lung cancer. The complaint prayed for damages on several theories of recovery, including: (1) strict liability and negligence for failing to adequately warn of the health risks of smoking; (2) strict liability for marketing defectively designed cigarettes rather than alternatively designed, safer cigarettes; (3) strict liability because the health risks of cigarettes exceed their social utility; (4) breach of express warranty regarding the effects of smoking on health; (5) fraud and misrepresentation in the advertising and promotion of cigarettes from 1940 to 1983; and (6) conspiracy to defraud the public regarding the health risks of smoking. The defendants filed a motion for summary judgment and asserted that the Federal Cigarette Labeling and Advertising Act, which requires health warnings on tobacco products, preempted the plaintiffs' claims. The district court denied the motion, holding that “the Act did not expressly or impliedly preempt any of plaintiffs' causes of action.”
However, the Third Circuit Court of Appeals disagreed. After examining the language and legislative history of the Act, the court determined that some of the state tort claims were preempted:
[W]e hold that the Act preempts those state law damage actions relating to smoking and health that challenge either the adequacy of the warning on cigarette packages or the propriety of a party's actions with respect to the advertising and promotion of cigarettes. We further hold that where the success of a state law damage claim necessarily depends on the assertion that a party bore the duty to provide a warning to consumers in addition to the warning Congress has required on cigarette packages, such claims are preempted as conflicting with the Act.
Nonetheless, the Third Circuit did not hold that all the Cipollones' claims were preempted. The court therefore remanded the case so the district court could determine which claims were preempted.
District Judge Sarokin decided that the plaintiffs' failure to warn, express warranty, fraudulent misrepresentation, and conspiracy to defraud claims were preempted as of January 1, 1966, the effective date of the Labeling Act. He sustained only the risk-utility and design defect claims. Yet, because the judge had decided in a pretrial ruling that the risk-utility claim was barred by the retroactive application of the New Jersey Products Liability Act, he had to dismiss that claim.
The Cipollone case finally went to trial in 1988. During the trial, the district court judge also struck down the design defect claim because Mr. Cipollone had failed to show that the defendants' failure to market an alternatively designed, safer cigarette was a proximate cause of Rose Cipollone's cancer and death. After deliberation, the jury ruled in favor of all the defendants on the pre-1966 fraudulent misrepresentation and the conspiracy to defraud claims. The jury did find, however, that Liggett had breached its duty to warn of the risks of smoking before 1966 and that this breach was a proximate cause of Mrs. Cipollone's smoking and death. Unfortunately for the plaintiffs, because the jury found Mrs. Cipollone more than fifty percent at fault, New Jersey's comparative fault statute barred damage recovery. Finally, the jury found that Liggett had breached an express warranty made to consumers prior to 1966. For this breach, Mr. Cipollone received $400,000 in damages.
Both parties appealed the judgment to the Third Circuit. Although they raised many issues, their appeals focused primarily on alleged errors in the district court's jury instructions, the district court's grant of summary judgment to the defendant on the risk-utility claim, and the Third Circuit's previous preemption decision. For example, the district court permitted the jury to consider Mrs. Cipollone's post-1965 behavior for comparative fault analysis, despite the circuit court's previous interpretation that the Labeling Act precluded Liggett's post-1965 conduct from figuring into the determination of its degree of fault. That finding by the district court, among others, caused the circuit court to grant a new trial.
The Third Circuit also set aside its express warranty verdict favoring the plaintiff, since Liggett had not been allowed to prove that Rose Cipollone had not believed the pre-1966 advertisements. The court decided that if Rose Cipollone had not believed the advertisements, then they could not have created a bargain or contract between her and the tobacco company. Finally, the Third Circuit overturned the district court's summary judgment motion favoring the defendants on the risk-utility claim. While noting that the New Jersey Supreme Court had the issue before it at that time, the court said that the defendants remained potentially liable on that claim because it “does not implicate advertising, promotion or warnings.”
Despite these numerous changes, the previous decision that the defendants' post-1966 conduct was immune from failure to warn, express warranty, and intentional tort claims remained intact. The Third Circuit therefore remanded only the newly created issues for a new trial. The United States Supreme Court was not convinced, however, that the preemption issue had been correctly decided. Accordingly, the Court granted certiorari to address the preemptive effect on state common-law tort claims brought against cigarette manufacturers.
About the Author
C.F. Fenswick.
Citation
67 Tul. L. Rev. 787 (1993)