926 F.2d 1217 (1st Cir. 1990), 90-1297, Kotler v. American Tobacco Co.

Docket Nº:90-1297, 90-1400.
Citation:926 F.2d 1217
Party Name:Joanne KOTLER, Individually and as Administratrix, Etc., Plaintiff, Appellant, v. The AMERICAN TOBACCO COMPANY, et al., Defendants, Appellees.
Case Date:December 19, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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926 F.2d 1217 (1st Cir. 1990)

Joanne KOTLER, Individually and as Administratrix, Etc.,

Plaintiff, Appellant,


The AMERICAN TOBACCO COMPANY, et al., Defendants, Appellees.

Nos. 90-1297, 90-1400.

United States Court of Appeals, First Circuit

December 19, 1990

Heard Sept. 11, 1990.

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[Copyrighted Material Omitted]

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Michael J. Traft and Diana Lumsden, with whom Beverly Weinger Boorstein, P.C., Gary Van Inge, Eric A. Nissen, Nissen & Lumsden, Alan M. Dershowitz, Joseph M. Lipner, and Cindy Leigh McAfee, were on brief for plaintiff, appellant.

Andrew F. Lane, with whom Stuart T. Rossman and Gaston & Snow, Thomas E. Bezanson, Bruce G. Sheffler, Mary T. Yelenick, and Chadbourne & Parke, were on brief, for defendant, appellee American Tobacco Co.

James V. Kearney, with whom Webster & Sheffield, Samuel Adams, Joseph J. Leghorn, and Warner & Stackpole, were on brief, for defendant, appellee Liggett Group, Inc.

Thomas E. Silfen, with whom Arnold & Porter, Marshall Simonds, Thomas J. Griffin, Jr., and Goodwin, Proctor & Hoar, were on brief, for defendant, appellee Philip Morris, Inc.

Before CAMPBELL, Circuit Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

Plaintiff-appellant Joanne Kotler, individually and as administratrix, filed suit in federal district court against The American Tobacco Company (ATC), Philip Morris, Inc. (PMI) and Liggett Group, Inc. (Liggett) seeking money damages in consequence of her husband's death. Having tasted defeat below, Kotler appeals. We affirm.


Appellant's husband, George Kotler, died of lung cancer which was thought to have been caused by cigarette smoking. The decedent was born in 1931, started smoking in his youth, and thereafter regularly used Pall Malls, an ATC product, until sometime after 1965. He then switched primarily to L & Ms, a Liggett brand. After a few years, he defected to Benson & Hedges, a PMI product. In October 1984, lung cancer was diagnosed. Death followed in early 1986.

Premising jurisdiction on 28 U.S.C. Sec. 1332 (1988) and invoking Massachusetts substantive law, the plaintiff filed a 21-count complaint (seven counts per defendant). Broadly described, the complaint proposed three theories of liability (negligence, breach of warranty, and misrepresentation), each pleaded primarily and derivatively (as loss of consortium claims) against each defendant, thus accounting

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for 18 statements of claim. The breach of warranty claims, as pleaded, implicated both express and implied warranties and were based upon the Massachusetts version of the Uniform Commercial Code. See Mass.Gen.L. ch. 106, Secs. 2-314-2-318 (1988). The last count in each grouping was for punitive damages.

Following our decision in Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir.1987), the district court dismissed substantial segments of appellant's claims. See Kotler v. American Tobacco Co., 685 F.Supp. 15 (D.Mass.1988) (Kotler I ). Appellant conceded, and the district court found, id. at 18, that "those ... claims which allege inadequacy or failure to warn after January 1, 1966" were preempted by the Federal Cigarette Labeling and Advertising Act, as amended, 15 U.S.C. Secs. 1331-1340 (1988) (the Labeling Act). The district court ruled, however, that preemption did not apply to matters predating January 1, 1966, Kotler I, 685 F.Supp. at 18--a ruling leaving only ATC at risk in respect to such claims inasmuch as the decedent, to all intents and purposes, had smoked nothing but Pall Malls prior to 1966. The court's other rulings comprised a mixed bag; plaintiff's claims for misrepresentation and deceit, alleged to have occurred after 1965, were foreclosed, id. at 20, but her pre-1966 misrepresentation claims against ATC and her breach of warranty claims against all defendants, to the extent based on a design defect independent of the duty to warn, were adjudged not preempted by federal law. Id. at 19-20. In the district court's view, the plaintiff could make out a design defect claim by proving that the defendants' tobacco was "bad," i.e., that defendants' cigarettes contained toxic or carcinogenic ingredients in addition to natural tobacco. Id. at 20.

After discovery was substantially completed, Liggett and PMI each moved for summary judgment on the design defect claims. The court below, finding that Kotler had produced no evidence that the cigarettes in question were defective in a manner which went beyond the inherent characteristics of tobacco, granted the motions. See Kotler v. American Tobacco Co., Civ. No. 86-0810-S, memorandum and order (D.Mass. Nov. 21, 1989), reprinted in Kotler v. American Tobacco Co., 731 F.Supp. 50, 55-57 (D.Mass.1990). 1 In roughly the same time frame, ATC moved for summary judgment on all surviving causes of action. Consistent with its rulings in favor of Liggett and PMI, the district court terminated the design defect claim. See Kotler II, 731 F.Supp. at 51-52. The court also granted summary judgment on the misrepresentation claim because appellant tendered no evidence to show that the allegedly tortious pre-1966 advertisements and statements were either health-related or untrue. See id. at 52. Finally, the court rejected Kotler's effort to impose strict liability. See id. at 52-54. Consequently, the case was allowed to go forward only against ATC and solely in respect of the pre-1966 claims for negligence and breach of warranty. See id. at 54-55. Trial began on February 13, 1990 and lasted for roughly three weeks. The court granted ATC's motion for a directed verdict with regard to breach of warranty, but sent the negligence claim to the jury. A defendant's verdict ensued.

With this preface, we turn directly to the issues presented on appeal, offering further facts and details when and as necessary to place particular assignments of error into realistic perspective.


Appellant insists that the court below was incorrect in ruling that the Labeling Act preempted her post-1965 claims of intentional misrepresentation. In response, appellees question our jurisdiction to entertain the argument; and tell us, in any event, that no error was committed.

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  1. Appellate Jurisdiction.

    Fed.R.App.P. 3(c) requires, inter alia, that a notice of appeal "shall designate the judgment, order or part thereof appealed from." The Supreme Court has construed Rule 3(c) as being mandatory and jurisdictional. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 315-16, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988). Nevertheless, in holding that the failure to name a party specifically in a notice of appeal constitutes a failure of that party to appeal, the Court took pains not to overrule Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962). Although Foman held that "the requirements of the rules of procedure should be liberally construed and that 'mere technicalities' should not stand in the way of consideration of a case on its merits," the Foman Court was addressing the "separate provision of Rule 3(c)" requiring that the judgments or orders appealed from be designated. Torres, 487 U.S. at 316, 108 S.Ct. at 2408. Thus, while all provisions of Rule 3(c) are mandatory and jurisdictional, the level of specificity required to satisfy the different provisions varies. Id.

    This case implicates the looser Foman specificity standard rather than the unyielding core standard of Torres itself. We are faced with the threshold issue of whether the two notices of appeal which Kotler filed sufficiently designated the lower court's preemption ruling as a subject for appellate inquiry. 2 The order in question was part and parcel of Kotler I, originally decided in March 1988 and entered on the docket in final form that May. Neither notice of appeal alluded specifically to the order.

    We start with basics. The general rule is that "[a] mistake in designating a judgment or part of a judgment in the notice of appeal ordinarily will not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice, and appellee is not misled by the mistake." Kelly v. United States, 789 F.2d 94, 96 n. 3 (1st Cir.1986). In determining whether appellant's notices of appeal, despite their obvious failure to mention the May 1988 order, sufficiently demonstrated an intent to appeal that order, we are not limited to the four corners of the notices, but may examine them in the context of the record as a whole. See McLemore v. Landry, 898 F.2d 996, 999 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 428, 112 L.Ed.2d 412 (1990); FTC v. Hughes, 891 F.2d 589, 590 (5th Cir.1990); Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1423 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990); Brandt v. Schal Associates, Inc., 854 F.2d 948, 954-55 (7th Cir.1988).

    In this case, the sufficiency of the notices of appeal is not easily proved or disproved. On the one hand, appellant's complete omission of any reference to the May 1988 order suggests abandonment of her quest; on the other hand, the papers contain intimations that appellant intended to fight the preemption ruling--indeed, in an earlier, untimely notice of appeal, now withdrawn, she mentioned it explicitly--and that appellees realized as much. While we tend to think that appellant fell short of meeting her burden in this respect, we hesitate to decide so bitterly contested a controversy by drawing conclusions about intent and reliance from an imperfectly delineated record. We take shelter instead under the familiar principle that where an appeal presents a difficult jurisdictional issue, yet the substantive merits underlying the issue are facilely resolved in favor of the party challenging jurisdiction, the jurisdictional inquiry may be avoided. See...

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