363 F.3d 1183 (11th Cir. 2004), 99-15021, Spain v. Brown & Williamson Tobacco Corp.

Docket Nº:99-15021.
Citation:363 F.3d 1183
Party Name:Paul L. SPAIN, as Administrator of the Estate of Carolyn Watts Spain, Deceased, Plaintiff-Appellant, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Inc., et al., Defendants-Appellees.
Case Date:March 29, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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363 F.3d 1183 (11th Cir. 2004)

Paul L. SPAIN, as Administrator of the Estate of Carolyn Watts Spain, Deceased, Plaintiff-Appellant,

v.

BROWN & WILLIAMSON TOBACCO CORPORATION, Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, Inc., et al., Defendants-Appellees.

No. 99-15021.

United States Court of Appeals, Eleventh Circuit

March 29, 2004

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M. Clay Ragsdale, IV, Birmingham, AL, for Plaintiff-Appellant.

H. Thomas Wells, Jr., Maynard, Cooper & Gale, P.C., Samuel H. Franklin, William H. Brooks, Lightfoot, Franklin, White & Lucas, Vernon L. Wells, II, Randall D. Quarles, Walston, Wells, Anderson & Bains, Birmingham, AL, Peter M. Henk, Stephen E. Scheve, Steven R. Selsberg, Shook, Hardy & Bacon, L.L.P., Houston, TX, Gordon A. Smith, W. Randall Bassett, King & Spalding, Atlanta, GA, Paul D. Koethe, Steven N. Geise, Richard G. Stuhan, Jones, Day, Reavis & Pogue, Cleveland, OH, David Stewart Eggert, Arnold & Porter, Heather Ann Pigman, Washington, DC, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before CARNES, MARCUS and FARRIS[*], Circuit Judges.

CARNES, Circuit Judge:

After briefing and oral argument in this cigarette product liability case, we certified issues of state law to the Alabama Supreme Court. Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 1300, 1312 (11th Cir. 2000). That Court has now issued its opinion in response to our certification request, an opinion which addresses three of the most important state law issues. Spain v. Brown & Williamson Tobacco Corp., 872 So.2d 101, 2003 WL 21489727 (Ala. June 30, 2003). The unsettled nature and difficulty of those issues of state law, and the correctness of our decision to certify them, is evidenced by the division of the Alabama Supreme Court that is reflected in a multitude of separate concurring and dissenting opinions and statements. We are grateful to the Alabama Supreme Court for the valuable guidance that it has provided us both in the decision it issued in this case and also in the other decision it released on the same day in a similar tobacco case where related state law issues had been certified by another panel of this Court. See Tillman v. R.J. Reynolds Tobacco Co., 871 So.2d 28, ----, 2003 WL 21489707, at *2 (Ala. June 30, 2003). Before applying that guidance to the issues in this appeal, a brief background statement and discussion of some general matters will be helpful.

I. BACKGROUND

Because we are reviewing a dismissal pursuant to Fed.R.Civ.P. 12(b)(6), we take the facts from the allegations in the complaint, assuming those allegations to be true. See Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam). Those alleged facts are that Carolyn Watts Spain started smoking cigarettes as a teenager in 1962. She became addicted to nicotine early on and was unaware at the time that she was becoming addicted. She primarily smoked cigarettes manufactured by defendants Philip Morris USA, Inc., R.J. Reynolds Tobacco Company, and Brown & Williamson Tobacco Corporation. Smoking was the proximate cause of her lung cancer, which was diagnosed on August 15, 1998. Unable to stop, she continued smoking until 1999 and died sometime during that year. See Spain, 230 F.3d at 1303.

Less than one year after Carolyn Spain died, her widower Paul L. Spain brought this lawsuit pursuant to Alabama's Wrongful Death Act, Ala.Code § 6-5-410. That act authorizes lawful representatives of a decedent to bring claims on the decedent's behalf within two years of death, provided that the statute of limitations had not run

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on the claims before the date of death. See Hall v. Chi, 782 So.2d 218, 221 (Ala.2000). This means that for a period of two years after her death Spain may bring whatever claims his wife could have brought on the date of her death. It also means that Spain himself is barred from bringing any claim that she would have been barred from bringing.

Spain's complaint asserts claims against a number of defendants, three of whom, all cigarette manufacturers, are the appellees in this case. (He also raised claims against individuals and retailers, but they are not involved in this appeal.) The claims against these three manufacturers are organized around five causes of action: (1) liability under the Alabama Extended Manufacturer's Liability Doctrine (AEMLD); (2) negligence; (3) wantonness; (4) breach of implied warranty; and, (5) conspiracy. The defendant manufacturers have responded with three defenses that potentially cut across all of Spain's claims: statute of limitations; rule of repose; and, federal law preemption. They also raise other defenses specific to certain claims.

II. GENERAL MATTERS

Before we start addressing the individual claims and related defenses, it will be helpful to get a few general matters out of the way. The first is the standard of review, which is well settled. "We review de novo the district court's grant of a motion to dismiss under [Rule] 12(b)(6) for failure to state a claim, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff." Hill, 321 F.3d at 1335. "The standard of review for a motion to dismiss is the same for the appellate court as it was for the trial court." Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). A motion to dismiss is granted only when the movant demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see also Flint v. ABB, Inc., 337 F.3d 1326, 1328-29 (11th Cir. 2003).

Another general matter involves the decision of state law issues. With the exception of the federal law preemption questions, the issues in this case all involve matters of state law. "In rendering a decision based on state substantive law, [we] must decide the case the way it appears the state's highest court would." Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1290 (11th Cir. 2001) (internal quotation marks and citation omitted).

Because the resolution of the state law issues could have avoided the need to decide the federal law preemption questions in this case, we thought it a good idea to certify the former to the Alabama Supreme Court before deciding the latter. See Spain, 230 F.3d at 1305. Now that we have the Alabama Supreme Court's answers to some of the state law issues, it is apparent that federal preemption questions must be decided. After having worked through the remaining questions a number of ways, we believe that the clearest way to explain the results we reach is to begin our analysis with the three defenses that potentially cut across all of Spain's claims, including the federal one, and then deal with each individual claim in turn. We will address the three broad defenses in this order: the statutes of limitation, the rule of repose, and federal law preemption.

III. THE STATUTES OF LIMITATIONS

As for the statutes of limitations, the defendants contend that all of Spain's claims are barred by them, while Spain argues that none of the claims is barred. The exact date of Carolyn Spain's death in

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1999 and whether she continued to smoke until her death are facts not explicitly addressed in the complaint. It does allege that she continued to smoke "until 1999" and that she died sometime before the filing of the complaint on August 5, 1999. The most we can tell from the complaint about the date of her death is that it was sometime between January 1, 1999 and August 5, 1999.1 That is enough to determine whether the claims survive the statutes of limitations and rule of repose. To the extent that a more specific date of death is needed on remand, the district court can determine it.

The parties agree that the AEMLD, negligence, wantonness, and conspiracy claims are subject to a two year statute of limitations, Ala.Code § 6-2-38, and that the breach of implied warranty claim is subject to a four year statute of limitations, Ala.Code § 7-2-725. What was not clear, prior to the Alabama Supreme Court's decision in this case, was when the statutes of limitations began to run. That is why we certified the following question: "When does the Alabama statute of limitations for claims brought under the AEMLD, and claims premised on negligence, wantonness, breach of warranty and conspiracy begin to run in a smoking products liability case?" Spain, 230 F.3d at 1312. We will now apply the Alabama Supreme Court's answer to the claims in this case, beginning with the tort claims: AEMLD, negligence, wantonness, and conspiracy. Then we can apply it to Spain's breach of implied warranty claim.

A. THE AEMLD, NEGLIGENCE, WANTONNESS, AND CONSPIRACY CLAIMS

In response to our certified question asking when the statute of limitations began to run on Spain's AEMLD, negligence, wantonness, and conspiracy claims, the Alabama Supreme Court held that "[t]he date Carolyn became addicted to nicotine is the date the statutory limitations period began to run as to Spain's tort claims."2 Spain, at ----, 2003 WL 21489727 at *11.

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A plurality of the Alabama Supreme Court also concluded that the continuing-tort doctrine causes a new limitations period to run every time a defendant commits a new tortious act which causes injury to the plaintiff. Id. As a result: "[w]here multiple acts are involved, subsequent damages have been recognized as flowing from subsequent acts, and the fact that a limitations period may have expired as to an earlier act does not bar an action for the subsequent injury." Id...

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