876 F.2d 414 (5th Cir. 1989), 88-3442, Pennington v. Vistron Corp.

Docket Nº:88-3442.
Citation:876 F.2d 414
Party Name:Betty D. PENNINGTON, Plaintiff-Appellant, v. VISTRON CORPORATION, Defendant, R.J. Reynolds Tobacco Co., Inc., and American Tobacco Company, Defendants-Appellees.
Case Date:June 28, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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876 F.2d 414 (5th Cir. 1989)

Betty D. PENNINGTON, Plaintiff-Appellant,



R.J. Reynolds Tobacco Co., Inc., and American Tobacco

Company, Defendants-Appellees.

No. 88-3442.

United States Court of Appeals, Fifth Circuit

June 28, 1989

Page 415

Edward J. Walters, Jr., Baton Rouge, La., for plaintiff-appellant.

Kenneth J. Servay, Charles Chassaignac, Harry McCall, Jr., Carmelite Bertaut, New Orleans, La., for R.J. Reynolds Tobacco Co.

Curtis Boisfontaine, Sally A. Shushan, New Orleans, La., Neil E. Mellen, William M. Bradner, Jr., New York City, for American Tobacco Co.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, WILLIAMS and JONES, Circuit Judges.

Page 416

JERRE S. WILLIAMS, Circuit Judge:

Betty Pennington appeals a summary judgment in favor of the manufacturers of the cigarettes that her deceased husband had smoked for many years. In a products liability suit governed by Louisiana law, Mrs. Pennington contended that her husband contracted cancer of the esophagus as a result of his exposure to certain chemicals in the workplace, either alone or in conjunction with his consumption of alcohol and cigarettes.

We hold that the Federal Cigarette Labeling and Advertising Act preempts some, but not all, of Mrs. Pennington's claims against the cigarette manufacturers. We find that summary judgment is proper for Mrs. Pennington's non-preempted claims because she failed to introduce sufficient evidence in opposition to the appellee's motion for summary judgment to establish the existence of a substantial issue of material fact for trial. We affirm the district court's summary judgment in favor of R.J. Reynolds Tobacco Company and the American Tobacco Company.

I. Facts and Prior Proceedings

Appellant Betty Pennington's husband, Kenneth Pennington, was employed by Uniroyal, Inc. in Baton Rouge, Louisiana, from 1966 until May, 1981. During the course of his employment, Kenneth Pennington was allegedly exposed to the chemical acrylonitrile, a known carcinogen. 1 Mrs. Pennington contends that Kenneth Pennington was also exposed to the chemicals 1,3 butadiene and styrene while employed at Uniroyal. Kenneth Pennington allegedly smoked cigarettes manufactured by the appellees, R.J. Reynolds Tobacco Company and the American Tobacco Company (hereafter, "the tobacco companies"), since 1954. He also consumed alcohol.

In 1982, Kenneth Pennington was diagnosed as having cancer of the esophagus. He died on January 1, 1983.

On December 29, 1983, Mrs. Pennington filed a diversity jurisdiction suit against approximately twenty-five companies, alleging that their products caused or contributed to Kenneth Pennington's cancer and resulting death. Named as defendants were several chemical manufacturers who allegedly supplied acrylonitrile, 1,3 butadiene, and styrene to the Uniroyal facility in Baton Rouge; several brewers who manufactured beer allegedly consumed by Kenneth Pennington; and the appellee tobacco companies. The complaint alleged, in the alternative, that Mr. Pennington's esophageal cancer was caused by exposure to acrylonitrile; or exposure to acrylonitrile and other workplace chemicals; or exposure to the chemicals, alcohol, and cigarettes, acting individually or in concert with each other. Mrs. Pennington contended that the chemical manufacturers, brewers, and tobacco companies were strictly liable for causing or contributing to the esophageal cancer and resulting death of her husband.

In August 1987, after over three and a half years of discovery, the tobacco companies moved for summary judgment. On December 22, 1987, the district court granted the motion for all claims of injury resulting from the decedent's smoking after 1965. The court concluded that these claims were preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Sec. 1331 et seq. (1982) ("the Act"), which went into effect on January 1, 1966. The court allowed Mrs. Pennington thirty days to file an additional complaint asserting possible claims that were not preempted. Mrs. Pennington filed an amended complaint, but did not change or supplement with additional claims her memorandum opposing the tobacco companies' motion for summary judgment. The district court then granted summary judgment on Mrs. Pennington's non-preempted claims, concluding that she had failed to offer sufficient evidence to show that there was a

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genuine issue of material fact for trial. The court certified for appeal pursuant to Fed.R.Civ.P. 54(b) its ruling granting summary judgment for the tobacco companies. Mrs. Pennington appeals.

II. Preemption

Mrs. Pennington first challenges the district court's ruling that all of her post-1965 claims are preempted by the Cigarette Labeling and Advertising Act. We hold that the Act preempts those claims that challenge the adequacy of the warning on cigarette packages after 1965, or suggest that the tobacco companies had a duty to provide warnings in addition to the warning mandated by Congress, or question the propriety of the tobacco companies' advertising and promotional activities. We also conclude, however, that the preemptive scope of the Act is not so broad to encompass every possible claim of injury arising from the smoking of cigarettes after 1965. We find that Mrs. Pennington's contention that cigarettes are unreasonably dangerous per se under Louisiana law is not preempted.

  1. Preemption Analysis

    The Supreme Court has laid out a well-worn path for us to follow in preemption cases. California v. ARC America Corp., --- U.S. ----, ----, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86 (1989). First, we must determine whether Congress has stated expressly its intent to supersede state law through its enactment of the statute in question. Even in the absence of express preemptive language, Congress may legislate in a given area so comprehensively that federal law occupies an entire field, leaving no room for state regulation. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983). Finally, even when Congress has not occupied an entire field, state law is nevertheless preempted when it actually conflicts with federal law. Such a conflict may occur when compliance with both state and federal law is impossible, Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or when the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objects of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Throughout this inquiry, "the critical question ... is always whether Congress intended that federal regulation supersede state law." Louisiana Public Service Comm'n v. Federal Communications Comm'n, 476 U.S. 355, 369, 106 S.Ct. 1890, 1899, 90 L.Ed.2d 369 (1986).

    While the path of analysis is clear, we must nevertheless tread cautiously. Preemption should not be inferred from every Congressional enactment that overlaps state regulation. Instead, "we start with the assumption that the historic police powers of the State [are] not to be superseded by [a federal statute] unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). This presumption against preemption applies to state or local regulation of matters of health and safety. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715, 105 S.Ct. 2371, 2376, 85 L.Ed.2d 714 (1985). In addition, we are concerned only with an actual conflict between federal and state law; "[t]he existence of a hypothetical or potential conflict is insufficient to warrant preemption." Rice v. Norman Williams Co., 458 U.S. 654, 659, 102 S.Ct. 3294, 3299, 73 L.Ed.2d 1042 (1982).

  2. The Labeling Act

    The starting point of our inquiry is, of course, the Federal Cigarette Labeling and Advertising Act. Originally enacted in 1965, the Act was a response to a growing awareness of the health threat posed by cigarettes. Congress was also concerned, however, with protecting the national economy and in particular with avoiding a multiplicity of different state-mandated warning labels. See Palmer v. Liggett Group, Inc., 825 F.2d 620, 622-23 (1st Cir.1987); Cipollone v. Liggett Group, Inc., 789 F.2d

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    181, 187 (3rd Cir.1986),cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987). The Act's declaration of policy and purpose clearly reflects these competing interests. It states:

    It is the policy of the Congress, and the purpose of this chapter, to establish a comprehensive Federal Program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby--

    (1) the public may be adequately informed that cigarette smoking may be hazardous to health by inclusion of a warning to that effect on each package of cigarettes; and

    (2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.

    15 U.S.C. Sec. 1331. 2

    In the Act, Congress dictates the exact warning to be placed on every package of cigarettes sold in the United States. Originally, the warning stated: "Caution: Cigarette Smoking May Be Hazardous To Your Health." Pub.L. No. 89-92, Sec. 4, 79 Stat. 283 (1965). In 1969, this warning was strengthened to read: "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous To Your...

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