Spain v. Brown & Williamson Tobacco Corp.

Decision Date30 June 2003
Citation872 So.2d 101
PartiesPaul L. SPAIN, as administrator for the estate of Carolyn Watts Spain, deceased v. BROWN & WILLIAMSON TOBACCO CORPORATION et al.
CourtAlabama Supreme Court

M. Clay Ragsdale of Ragsdale & Wheeler, LLC, Birmingham, for plaintiff.

Vernon L. Wells II and Randall D. Quarles of Walston, Wells, Anderson & Bains, LLP, Birmingham; David S. Eggert and Heather A. Pigman of Arnold & Porter, Washington, D.C.; and Stephen E. Scheve, Steven R. Selsberg, and Peter M. Henk of Shook, Hardy & Bacon, L.L.P., Houston, Texas, for defendant Philip Morris Incorporated.

Samuel H. Franklin, William H. Brooks, and Stephen J. Rowe of Lightfoot, Franklin & White, L.L.C., Birmingham; Richard G. Stuhan, Paul D. Koethe, and Steven N. Geise of Jones, Day, Reavis & Pogue, Cleveland, Ohio; and Mark C. Cawley of Jones, Day, Reavis & Pogue, Washington, D.C., for defendant R.J. Reynolds Tobacco Company.

H. Thomas Wells, Jr., and William B. Wahlheim, Jr., of Maynard, Cooper & Gale, P.C., Birmingham; and Gordon A. Smith, W. Randall Bassett, and Daniel A. Hillman of King & Spalding, Atlanta, Georgia, for defendant Brown & Williamson Tobacco Company (individually and as successor by merger to the American Tobacco Company).

Ross Diamond III of Diamond, Hasser & Frost, Mobile; and Jere L. Beasley and R. Graham Esdale, Jr., of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for amicus curiae Brenda D. Tillman, as administratrix of the estate of Kalen O. Tillman, deceased, in support of the plaintiff.

David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, LLC, Mobile, for amicus curiae Alabama Trial Lawyers Association, in support of the plaintiff.

Allison L. Alford and Emily C. Marks of Ball, Ball, Matthews & Novak, P.A., Montgomery, for amicus curiae Alabama Defense Lawyers Association.


Carolyn Watts Spain ("Carolyn") was a cigarette smoker during most of her lifetime. After her death, her husband, Paul L. Spain ("Spain"), as administrator for Carolyn's estate, filed a wrongful-death action in the Jefferson Circuit Court against Brown & Williamson Tobacco Corporation; Philip Morris, Inc. (now Philip Morris USA Inc.);1 and R.J. Reynolds Tobacco Corporation (hereinafter referred to collectively as "the manufacturers"), alleging negligence, wantonness, breach of warranty, conspiracy, and liability under the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD"). Following the removal of the case to the United States District Court for the Northern District of Alabama, the manufacturers moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The federal district court granted the motion, and Spain appealed to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit certified to us the following questions of state law pursuant to Rule 18, Ala. R.App. P.:2

"1. 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?
"2. Does the Alabama rule of repose apply in a smoking products liability case?
"3. If so, when does the Alabama rule of repose begin to run in a smoking products liability case?
"4. Before the appearance of federally mandated warning labels on cigarettes packages, were cigarettes `unreasonably dangerous' under the AEMLD?
"5. Since the appearance of federally mandated warning labels on cigarettes packages, have cigarettes been `unreasonably dangerous' under the AEMLD?
"In addition to certifying the preceding questions to the Alabama Supreme Court, we also invite that Court to tell us if the conclusions we have reached about the following state law issues are incorrect:
"a. that the negligence and wantonness claims merge into an AEMLD claim;
"b. that the sale of cigarettes does not violate the implied warranty of merchantability under Code of Alabama 1975, § 7-2-314;
"c. that the fraudulent suppression claim, which is a basis for Spain's conspiracy claim, is not viable under Alabama law; and
"d. that, if cigarettes are not unreasonably dangerous as a matter of Alabama law, the fraudulent misrepresentation claim, which is a basis for the conspiracy claim, is not viable under Alabama law."

Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 1300, 1312 (11th Cir.2000).

We begin with a few observations about this Court's response to a certified question from federal courts. This Court's promulgation of the rule that enables a federal court to seek assistance in ascertaining answers to unsettled questions of state law stands as a salutary example of cooperation between federal and state governments. But the practice is not without its limitations. When this Court, as is the case with any appellate court, decides questions presented on an appeal in which numerous issues are argued, the resolution of one or more of the questions presented quite often pretermits the necessity for considering the remaining issues. Sound considerations of judicial policy dictate resolution of only those questions necessary to a decision, without the inclusion of dicta. However, when a federal court certifies questions to us, quite understandably, it often tenders a variety of questions so that it will have ready answers to all questions before it in the event its further analysis of the record renders answers to some of the questions not useful, while the answer to one or more of the remaining questions might dispose of the appeal. Consequently, certified questions can present tension between the legitimate, yet competing, interests of this Court in avoiding answering questions not necessary to a decision and the interests of a federal court needing assistance in dealing with uncharted areas of state law.

A second consideration relates to the maxim often attributed to Albert J. Farrah, a former dean of the University of Alabama School of Law, who reportedly drilled into his students, "Out of facts the law arises."3 This Court permits a state trial court to certify to it controlling questions of law as to which there is substantial basis for difference of opinion. See Rule 5, Ala. R.App. P. We routinely decline to accept a Rule 5 petition when it appears that as yet undeveloped factual issues are essential to a determination of an abstractly presented question of law. However, quite often when asked to respond to a certified question from a federal court, in the interest of comity we put aside concerns as to unknown or uncertain facts that might affect our answer so as to assist the federal court in answering a question of state law. If the same questions were certified to us by a state trial court pursuant to Rule 5, we would decline to answer them based upon the presence of significant and unresolved factual issues.

Against this background, we will endeavor to assist the Eleventh Circuit to the extent practicable, focusing our attention primarily on the issue of when the statute of limitations in a "smoking products-liability case" begins to run. The Eleventh Circuit recited the following facts:

"Because the case is before us on a Rule 12(b)(6)[, Fed. R Civ. P.,] dismissal, we take the facts from the allegations in the complaint, assuming those allegations to be true. See Brown v. Crawford County, Georgia, 960 F.2d 1002, 1010 (11th Cir.1992).
"Carolyn Spain started smoking cigarettes in 1962, when she was `approximately 15 years of age and was a multi-pack per day smoker.' She became addicted to the nicotine in cigarettes early on and was unaware at the time that she was becoming addicted. She primarily smoked cigarettes manufactured by Philip Morris, Inc., R.J. Reynolds Tobacco Company, and Brown & Williamson Tobacco Corporation. Carolyn's smoking was the proximate cause of her lung cancer, which was diagnosed on August 15, 1998. Unable to stop, she, continued smoking until 1999. She has since died.1
1The complaint does not indicate whether Carolyn Spain continued to smoke until she died or the date of her death. About the date of her death, we know only that she died sometime between the diagnosis of lung cancer on August 15, 1998 and the filing of the complaint in this case on August 5, 1999."

230 F.3d at 1303.

The foregoing bare-bones facts are before us. Carolyn became a heavy smoker after beginning to smoke in 1962 when she was approximately 15 years old. We know that she became addicted to the nicotine in cigarettes. We know that she was unaware of her addiction at the outset. She alleges in her complaint that she was unable to stop smoking. She was diagnosed with lung cancer on August 15, 1998, and died within one year.

Facts not before us are legion. Spain points out that the federal district court dismissed his complaint before any discovery began. Presumably, as common sense suggests, Carolyn at some point became aware that she was addicted to cigarettes, but we do not know that for sure. We do not know whether Carolyn experienced any physical consequences of smoking before she was diagnosed with lung cancer in 1998. Reference was made at oral argument before this Court to Carolyn's experiencing shortness of breath, but nothing in the record thus far suggests that fact. Perhaps members of the Court could draw upon personal experience and surmise that Carolyn, as a multi-pack per day addicted smoker, experienced shortness of breath, periodic episodes of coughing, throat irritation, and reduction in gustatory and olfactory capacities, but we cannot so conclude with certainty. We do not know whether symptoms of cancer or cancer cells were present at any time before the diagnosis in August 1998. We know from matters generally regarded as public knowledge that the surgeon general of the United States has mandated the inclusion of warnings on packages of cigarettes since sometime in the 1960s. We further...

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