685 F.Supp. 15 (D.Mass. 1988), Civ. A. 86-0810, Kotler v. American Tobacco Co.

Docket Nº:Civ. A. 86-0810
Citation:685 F.Supp. 15
Party Name:Kotler v. American Tobacco Co.
Case Date:May 02, 1988
Court:United States District Courts, 1st Circuit, District of Massachusetts
 
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685 F.Supp. 15 (D.Mass. 1988)

Joanne KOTLER, Individually and as the Administratrix of the Estate of George P. Kotler, Plaintiff,

v.

The AMERICAN TOBACCO COMPANY, Philip Morris, Inc., and Liggett Group, Inc., Defendants.

Civ. A. No. 86-0810-S.

United States District Court, D. Massachusetts.

May 2, 1988

As Amended May 25, 1988.

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Nissen & Lumsden, Boston, Mass., for plaintiff.

Samuel Adams, Warner & Stackpole, Andrew F. Lane, Gaston Snow, Marshall Simonds, Goodwin, Procter & Hoar, Boston, Mass., for defendants.

AMENDED MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS

SKINNER, District Judge.

Plaintiff Joanne Kotler, individually and as administratrix of the estate of her husband, George P. Kotler, brought this tobacco products liability action against defendants American Tobacco Company (Division of American Brands, Inc.), Philip Morris, Inc., and Liggett Group, Inc. Plaintiff claims that her husband contracted lung cancer and died as a result of smoking cigarettes manufactured by defendants. The complaint charges each defendant with negligence, breach of warranty, and negligent misrepresentation and deceit.

Following Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir.1987), I held a hearing on October 5, 1987 to question the effect of Palmer on this case. Pursuant to a scheduling order, all three defendants have moved in effect to dismiss for failure to state a claim upon which relief can be

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granted, Fed.R.Civ.P. 12(b)(6), although Liggett Group has titled its pleading a motion for judgment on the pleadings, Fed.R.Civ.P. 12(c). 1 For reasons set forth in this opinion, defendants' motions are allowed in part and denied in part.

Background

Plaintiff filed the action on March 6, 1986 claiming that defendants were liable to plaintiff for manufacturing cigarettes which allegedly caused her husband to develop lung cancer. Counts I, VIII, and XV claim that plaintiff's decedent started smoking defendants' cigarettes as a proximate result of aggressive and negligently designed advertising campaigns, that defendants negligently failed to warn or adequately warn of the dangers of their cigarettes, that defendants knew or should have known with the exercise of reasonable care of their products' dangers, and that defendants negligently failed to adequately test, design, market, distribute and sell their products. Counts II, IX, and XVI claim that defendants warranted that the cigarettes purchased and smoked by the decedent were safe, merchantable, and fit for the use for which they were intended, that plaintiff's decedent relied on these warranties, and that defendants breached their express and implied warranties by selling cigarettes which were defective and whose risk outweighed their utility. Counts III, X, and XVII claim that defendants negligently or intentionally misrepresented the qualities and detrimental effects of cigarette smoking through their failure to provide warnings or adequate warnings and through their diverse marketing and advertising efforts, and that plaintiff's decedent detrimentally relied on these representations. The remaining counts are for loss of consortium and for punitive damages.

Defendants each answered, generally denying all substantive claims and asserting the affirmative defense, inter alia, that all of plaintiff's claims are barred by the Supremacy Clause and are preempted by the Federal Cigarette Labeling and Advertising Act, as amended, 15 U.S.C. §§ 1331-1340 (the "Act"). Subsequently, our Court of Appeals decided Palmer, supra.

In Palmer, the court narrowly framed the issue as whether the Act preempted plaintiff's smoking and health related claims that challenged either the adequacy of the federal warning on cigarette packages or the propriety of the defendant's advertising and promotion of cigarettes. The district court and both parties agreed that determination of the Act's preemptive effect controlled the disposition of virtually the entire case. The court held that the Act impliedly but not expressly preempted the Palmers' claims.

The court recognized that Congress explicitly...

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