731 F.Supp. 50 (D.Mass. 1990), Civ. A. 86-0810, Kotler v. American Tobacco Co.

Docket Nº:Civ. A. 86-0810
Citation:731 F.Supp. 50
Party Name:Kotler v. American Tobacco Co.
Case Date:January 12, 1990
Court:United States District Courts, 1st Circuit, District of Massachusetts

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731 F.Supp. 50 (D.Mass. 1990)

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


AMERICAN TOBACCO CO. et al., Defendants.

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

United States District Court, D. Massachusetts.

Jan. 12, 1990

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

Bruce G. Sheffler, John Delli Venneri and Thomas B. Bezanson, Chadbourne & Park, and Francis K. Decker, Jr., Webster & Sheffield, New York City, for American Tobacco Co.

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Samuel Adams, Joseph J. Leghorn and Janice Kelley Rowan, Warner & Stackpole, Boston, Mass., for Liggett Group, Inc.

Daniel B. Bickford, Andrew F. Lane, Martha J. Koster and Stuart T. Rossman, Gaston Snow & Ely Bartlett, Boston, Mass., for The American Tobacco Co.

Marshall Simonds, Thomas J. Griffin, Jr., Goodwin, Procter & Hoar, Boston, Mass., for Philip Morris Co., Inc.


SKINNER, District Judge.

In this action the plaintiff seeks to recover damages for the death of her husband from lung cancer, allegedly caused by his smoking of cigarettes manufactured by the defendants. In prior proceedings I have disposed of a number of the claims asserted in the Amended Complaint. On May 25, 1988, I dismissed all claims for failure to warn of the risks of smoking cigarettes after January 1, 1966 as having been preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1340, in accordance with Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987). Kotler v. American Tobacco Co., 685 F.Supp. 15 (D.Mass.1988). I ruled that claims for breach of warranty by reason of the addition of toxic or carcinogenic substances were not preempted. Claims for failure to warn and for misrepresentation and deceit prior to January 1, 1966 also survived the motion to dismiss, but these claims apply only to the defendant American Tobacco Co., because Mr. Kotler did not smoke the products of the other defendants, Philip Morris, Inc. and Liggett Group, Inc., until after January 1, 1966. After completion of the depositions of the plaintiff's experts in the summer of 1989, Philip Morris, Inc. and Liggett Group, Inc. moved for summary judgment on the plaintiff's claim of defective design, the only remaining claim against them. On November 21, I allowed their motions for reasons stated in the memorandum annexed hereto as Appendix A.

The remaining claims against American Tobacco Co., sounding in both negligence and breach of warranty, are for failure to warn of the risks of cigarette smoking, improper design and failure to test, and false advertising leading the public to believe that there were no risks in smoking cigarettes. The defendant has moved for summary judgment on all of these claims. In cases such as this one, where the plaintiff asserts that there are genuine issues of fact, summary judgment for the defendant may be granted only if, after accepting the plaintiff's version of the contested facts and viewing all inferences therefrom in the light most favorable to the plaintiff, the court concludes that no reasonable jury could return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Miller v. Brown & Williamson Tobacco Corp., 679 F.Supp. 485, 487-8 (E.D.Pa.), aff'd, 856 F.2d 184 (3d Cir. 1988).

It is undisputed that Mr. Kotler died of lung cancer in 1986. There is evidence which would clearly warrant a finding that the lung cancer was caused by Mr. Kotler's lifelong habit of smoking several packs of cigarettes a day, a habit which commenced in 1942, when he was eleven years old.

With respect to her claim that the defendant's cigarettes were defectively manufactured and marketed, the plaintiff has produced evidence that the defendant dusted its cigarette tobacco with a toxic pesticide called DDVP. Her experts, however, are not prepared to testify what concentration of DDVP, if any, remained in the cigarettes or whether DDVP in any likely concentration in cigarette smoke would be carcinogenic for humans. Furthermore, the plaintiff's evidence on this branch of the case is subject to the same deficiency as her evidence against the other two defendants, as described in my order of November 21. The plaintiff's experts do not ascribe any causal connection between the use of DDVP (or any other identified additive) and the death of Mr. Kotler. On

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the contrary, they uniformly identify the tobacco itself as the efficient cause of death. There has been more than adequate time for discovery. Cf. Miller v. Brown & Williamson Tobacco Corp., supra, at pp. 488-9. Accordingly, the defendant is entitled to summary judgment on this claim.

The evidence proffered by the plaintiff in support of her claim that the defendant misrepresented the effect of cigarette smoking on health consists of a series of advertisements concerning the defendant's product, Pall Mall cigarettes, which was the only brand that Mr. Kotler smoked before January 1, 1966. These advertisements assert that the extra length of Pall Mall cigarettes gave them a more sophisticated appearance and a cooler smoke (at least during the incineration of the extra millimeters), that the tobacco was "bulked" and that smart people smoked Pall Malls. There is no showing that these statements were either related to health or untrue. In marked contrast to some other cigarette cases, such as Cipollone v. Liggett Group, Inc., 683 F.Supp. 1487, 1500 (D.N.J.1988), aff'd in part and rev'd in part, 893 F.2d 541 (3d Cir. 1990), and Rogers v. R.J. Reynolds Tobacco Co., 761 S.W.2d 788 (Tex.Ct.App.1988), writ denied, the plaintiff has not alleged any general conspiracy to falsely represent the facts concerning the consequences of smoking, nor has she proffered any evidence from which this defendant's involvement in such a conspiracy could be inferred.

The plaintiff persists in her assertion that under the law of Massachusetts she would be entitled to recover damages for breach of warranty on the ground that even unadulterated cigarettes are unreasonably dangerous. Liability for breach of warranty has been held to be congruent in nearly all respects with the principles of strict liability expressed in Restatement (Second) of Torts § 402A (1965). Hayes v. Ariens Co., 391 Mass. 407, 462 N.E.2d 273 (1984); Back v. Wickes Corp., 375 Mass. 633, 378 N.E.2d 964 (1978). For liability to attach under § 402A, the product must be defective and unreasonably dangerous:

The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.

Gianitsis v. American Brands, Inc., 685 F.Supp. 853, 856 (D.N.H.1988), quoting (with added emphasis) from comment i to the Restatement section.

Plaintiff correctly states that the application of comment i has never been expressly decided by a Massachusetts court, but I think it is fair to say that all of the cases in which the Massachusetts courts have applied the principles of § 402A have entailed evidence of a defect in the product. This would appear to be the general rule except in jurisdictions in which the courts have adopted the "risk/utility analysis," e.g., (initially) Cipollone v. Liggett Group, Inc., 649 F.Supp. 664, 670-1 (D.N.J.1986). This is a theory invented by Professor John W. Wade which requires the court to assess the social utility of the product in comparison to the risks attendant on its use. If the court deems the risks to be greater than the utility of the product, applying a seven part formula, the product is held to be unreasonably dangerous and the manufacturer or seller strictly liable for any harm resulting from its use. The theory was explained in some detail by Judge Loughlin in Gianitsis, supra, at 857-9, who then held that this theory was not part of the law of New Hampshire, at least as applied to cigarettes. Judge Bechtle arrived at the same conclusion with respect to the law of Pennsylvania in Miller, supra, at 489. In Pennington v. Vistron Corp., 876 F.2d 414, 424-5 (5th Cir. 1989), the court determined that the risk/utility theory had been adopted by the state

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courts of Louisiana, but refused to decide the "unsettled question" whether cigarettes were unreasonably dangerous per se as a matter of Louisiana law. Initially Judge Sarokin, who supports the theory, concluded that the risk/utility theory was part of the common law of New Jersey, Cipollone, supra, 649 F.Supp. at 670-1, but eventually reluctantly yielded to a contrary interpretation by the New Jersey legislature. Cipollone v. Liggett Group, Inc., No. 83-2864 (D.N.J. Oct. 27, 1987) (1987 U.S.Dist. LEXIS 9936) (1987 WL 14666). Last Friday, January 5, 1990, the Court of Appeals for the Third Circuit reversed that decision and declared that the risk/utility theory was part of the common law of New Jersey prior to the enactment of a recent statute. Cipollone v. Liggett Group, Inc., 893 F.2d 541, 577-578 (3d Cir. 1990). The court held that the statute relied upon by Judge Sarokin was not a codification of the law of New Jersey, despite a legislative committee report to the contrary. See O'Brien v. Muskin...

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