Cipollone v. Liggett Group, Inc.

• Decision Date: 24 August 1988
• Docket Number: Civ. A. No. 83-2864.
• Citation: 693 F. Supp. 208
• Parties: Antonio CIPOLLONE, individually and as executor of the Estate of Rose D. Cipollone, Plaintiff, v. LIGGETT GROUP, INC., et al., Defendants.
• Court: U.S. District Court — District of New Jersey

693 F. Supp. 208

Antonio CIPOLLONE, individually and as executor of the Estate of Rose D. Cipollone, Plaintiff, v. LIGGETT GROUP, INC., et al., Defendants.

Civ. A. No. 83-2864.

United States District Court, D. New Jersey.

August 24, 1988.

COPYRIGHT MATERIAL OMITTED

Budd Larner Gross Picillo Rosenbaum Greenberg & Sade, Marc Z. Edell, Short Hills, N.J., Wilentz, Goldman & Spitzer, Alan M. Darnell, Woodbridge, N.J., for plaintiff.

Greenbaum, Rowe, Smith, Ravin, Davis & Bergstein, Alan S. Naar, Woodbridge, N.J., Webster & Sheffield, James V. Kearney, New York City, for defendant Liggett Group, Inc.

Brown & Connery, Raymond F. Drozdowski, Westmont, N.J., for defendant Philip Morris Inc.

Stryker, Tams & Dill, William S. Tucker, Newark, N.J., for defendant Lorillard, Inc.

OPINION

SAROKIN, District Judge.

Plaintiff Antonio Cipollone brought this action against Liggett Group, Inc., Philip Morris Incorporated, and Lorillard, Inc., three companies which manufactured the cigarettes smoked by his wife, Rose Cipollone. Mrs. Cipollone died of lung cancer in 1983. Plaintiff sought damages personally and on behalf of his wife's estate. After trial, the jury, responding to specific interrogatories, returned the following verdict.

The jury found that plaintiff had failed to establish defendants' liability on claims of fraud and civil conspiracy. The jury found that Liggett, prior to 1966, had failed to warn consumers of health risks of smoking and that this failure to warn proximately caused Mrs. Cipollone's lung cancer and death. The jury also found that Mrs. Cipollone had voluntarily and unreasonably encountered a known danger by smoking cigarettes and that this conduct by Mrs. Cipollone proximately caused her lung cancer and death. The jury attributed 80% of the responsibility for the injuries to Mrs. Cipollone, and 20% of the responsibility to Liggett. Under New Jersey law, the jury's attribution of 80% responsibility to Mrs. Cipollone barred plaintiff's recovery on the failure-to-warn claim.

With respect to plaintiff's claim for breach of express warranty against Liggett, the jury provided the following answers to specific interrogatories:

13. Did Liggett make express warranties to consumers regarding the health aspects of its cigarettes? YES

14.... Did any Liggett products used by Mrs. Cipollone breach that warranty? YES

15.... Was Mrs. Cipollone's use of these products a proximate cause of her lung cancer and death? YES

16.... What damages did Mrs. Cipollone sustain? $0.00

17.... What damages did Mr. Cipollone sustain? $400,000.00

The court entered a judgment in accordance with the jury verdict. Liggett moves, pursuant to Fed.R.Civ.P. 50(b), for a judgment notwithstanding the verdict and, in the alternative, pursuant to Fed.R.Civ.P. 59(a), for a new trial. Plaintiff moves, pursuant to Fed.R.Civ.P. 59(a), for a new trial "on the issue of the quantum of compensatory damages sustained by Rose Cipollone during her lifetime." Additionally, plaintiff moves, pursuant to Fed.R.Civ.P. 59(e), to correct the judgment to add prejudgment interest and to amend the judgment to add damages under the New Jersey Consumer Fraud Act.

DISCUSSION

I. Liggett's motion

A. Judgment notwithstanding the verdict

Liggett contends that the jury's finding of liability on plaintiff's express warranty claim cannot stand and that Liggett is entitled to judgment on that claim.

Initially, the court emphasizes that plaintiff's express warranty claim sounds in contract and is governed by the Uniform Commercial Code (UCC), as adopted by the New Jersey legislature. The parties treated the claim as being under the code in their trial briefs, see Trial Brief Submitted on behalf of Defendant Liggett Group, Inc. hereinafter Liggett's Trial Brief at 23-27; Plaintiff's Trial Brief at 47-58, and in their briefs on Liggett's motion for a directed verdict, see, e.g., Motion for Directed Verdict (Liggett) at 4-6.¹ The court, with this understanding, discusses Liggett's specific arguments.

This court must, deny Liggett's motion for judgment notwithstanding the verdict "unless the record is critically deficient of that minimum quantity of evidence from which the jury might reasonably afford relief." Simone v. Golden Nugget Hotel and Casino, 844 F.2d 1031, 1034 (3d Cir. 1988) (citation omitted).

1. Statute of limitations

Liggett argues that plaintiff's express warranty claim is barred by the four-year UCC statute of limitations, N.J.S.A. § 12A:2-725.² The court rejects Liggett's contention.

First, the court concludes that Liggett cannot raise this contention on its Rule 50(b) motion. Prior to trial, plaintiff moved to strike defendants' statute of limitations defenses. Plaintiff, in his brief in support of that motion, asserted that N.J.S.A. § 2A:14-2, the two-year statute of limitations for personal injury actions, applied to his claims. Memorandum in Support of Motion to Strike Defendants' Affirmative Defenses Based on Statute of Limitations at 9. Defendants, in opposition, stated:

Plaintiff's motion addresses those causes of action with two year statutes of limitations deriving from the date when Mrs. Cipollone's lung cancer arose. Plaintiff's motion does not address defendants' statute of limitations defense respecting plaintiff's other claims with different periods of limitations. Thus, these claims are not now before this court.

Defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment Striking Defendants' Affirmative Defenses Based on Statute of Limitations at 2. The court, in granting plaintiff's motion, stated, "The parties agree that the timeliness of plaintiff's claims must be measured by New Jersey's two-year statute of limitations, N.J.S.A. 2A:14-2." The court's order granting the motion did not distinguish among plaintiff's claims. Liggett did not move for reconsideration of the court's ruling nor did it move prior to trial for summary judgment on this ground. Additionally, during trial, defendants made an offer of proof on its statute of limitations defense, making no reference to the application of the UCC provision to plaintiff's express warranty claim.³ Most tellingly, though, Liggett failed to raise this ground on its motion for directed verdict, despite raising several other arguments under the UCC. Motion for Directed Verdict (Liggett) at 4-6. Under these circumstances, Liggett may not raise this contention on its Rule 50(b) motion for judgment notwithstanding the verdict. See Orlando v. Billcon Int'l, Inc., 822 F.2d 1294, 1298 (3d Cir.1987).

Additionally, Liggett's contention fails on its merits. New Jersey has traditionally applied different statutes of limitation to claims for personal injury and claims for property damage. See Heavner v. Uniroyal, Inc., 63 N.J. 130, 143, 305 A.2d 412 (1973). The New Jersey Supreme Court has stated plainly that the adoption of the UCC was not intended to eliminate that dichotomy. Therefore, N.J.S.A. § 12A:2-725 does not apply to personal injury actions, even if arising out of a breach of contract for sale. See id. at 146, 305 A.2d 412. Plaintiff's claim, then, is not time-barred.

2. Notice

The court, for the reasons expressed in its prior opinion on defendants' motions for directed verdict, Cipollone v. Liggett Group, Inc., 683 F.Supp. 1487, 1498 (D.N.J. 1988), concludes that plaintiff's express warranty claim is not barred because of lack of notice under N.J.S.A. § 12A:2-607(3)(a).

3. Privity

Liggett contends that a personal injury action between a buyer and a manufacturer not in privity with the buyer cannot be brought under the provisions of the UCC, as interpreted by the New Jersey Supreme Court. See Heavner v. Uniroyal, Inc., 63 N.J. 130, 154, 305 A.2d 412 (1973); see also Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J. 555, 570, 489 A.2d 660 (1985).

Liggett raised this argument, for the first time, on this motion for judgment notwithstanding the verdict. Although this purely legal question requires no factual development, Liggett did not move to dismiss this claim prior to trial. Liggett's trial brief does not mention the privity issue. Liggett's Trial Brief at 23-27 (discussing the express warranty claim). Most significantly, Liggett failed to raise this privity argument on its motion for directed verdict. See Motion for Directed Verdict (Liggett) at 4-6 (discussing the express warranty claim). Due to this failure, Liggett may not raise this argument on its Rule 50(b) motion. See Orlando v. Billcon Int'l, Inc., 822 F.2d 1294, 1298 (3d Cir. 1987).⁴

The court, therefore, denies Liggett's motion on this ground, without consideration of the merits of Liggett's legal position.

4. Affirmation of fact

The court, for the reasons expressed in its prior opinion on defendants' motions for directed verdict, Cipollone, 683 F.Supp. at 1497, concludes that sufficient evidence exists to support the jury's finding that Liggett made "affirmations of fact" within the meaning of N.J.S.A. § 12A:2-313(1)(a). The jury found that Liggett made such affirmations "regarding the health aspects of its cigarettes." Jury Interrogatory No. 13. This answer must be interpreted in light of the court's instructions, which referred to the alleged warranties as being "that the cigarettes that Liggett sold to Rose Cipollone would not cause injury or harm," Jury Charge at 47, and "about the safety of Liggett's cigarettes," id. at 50. Plaintiff was not required to demonstrate that Liggett made affirmations that its cigarettes would not cause lung cancer.

5. "Part of the basis of the bargain"

Liggett objected to the following passage from the court's charge on plaintiff's express warranty claim:

The law does not require plaintiff to show that Rose Cipollone specifically relied on Liggett's warranties.

Ordinarily a guarantee or promise in an advertisement or other description of the goods becomes part of the basis of the bargain if it would naturally induce the purchase of the

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