Carlisle v. Philip Morris, Inc.

• Decision Date: 06 February 1991
• Docket Number: No. 3-89-175-CV,3-89-175-CV
• Citation: 805 S.W.2d 498
• Parties: , Prod.Liab.Rep. (CCH) P 12,874 Weldon J. CARLISLE, et al., Appellants, v. PHILIP MORRIS, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 498

805 S.W.2d 498

59 USLW 2588, Prod.Liab.Rep. (CCH) P 12,874

Weldon J. CARLISLE, et al., Appellants, v. PHILIP MORRIS, INC., et al., Appellees.

No. 3-89-175-CV.

Court of Appeals of Texas Austin.

Feb. 6, 1991.

Rehearing Overruled April 3, 1991.

Mike Davis, Byrd, Davis & Eisenberg, Austin, for appellants.

Jack D. Maroney, Brown Maroney & Oaks Hartline, Austin, for Philip Morris, Inc.

John Coates, Clark, Thomas, Winters & Newton, Austin, for R.J. Reynolds Tobacco Co.

Ernest E. Figari, Jr., Figari & Davenport, Dallas.

Nancy Ebe, Matthews & Branscomb, Austin, for The American Tobacco Co. Robert Summers, Thornton, Summers, Biechlin, Dunham & Brown, San Antonio, for Liggett & Myers, Inc., et al.

Lea F. Courington, Gwinn & Roby, Dallas, for The Tobacco Institute, Inc.

William K. Wilde, Bracewell & Patterson, Houston, for The Council for Tobacco Research-U.S.A., Inc.

Michael Hendryx, Tucker, Hendryx & Gascoyne, Houston, for H.E. Butt Grocery Co.

Before POWERS, JONES and EARL W. SMITH, ^* JJ.

JONES, Justice.

This appeal presents the question of whether the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1341 (1982 & Supp.1990) ("Labeling Act"), preempts state common-law tort claims for injuries or death allegedly suffered as a result of smoking cigarettes. Plaintiffs below were two individuals alleging injuries and two widows alleging wrongful death. ¹ Defendants below were various cigarette manufacturers, wholesalers, and related entities. ² In four separate suits, plaintiffs alleged five causes of action: (1) failure to warn; (2) design defects; (3) manufacturing defects; (4) affirmative misrepresentation; and (5) civil conspiracy. After consolidating the four cases, the trial court granted the defendants' motions for summary judgment on the ground that the Labeling Act preempted all of the plaintiffs' claims. Plaintiffs perfected this appeal. We will reverse the trial court's judgment and remand the cause.

PLAINTIFFS' CLAIMS

Plaintiff Carlisle smoked for over sixty-five years. He now suffers from laryngeal cancer, which he alleges was caused by prolonged cigarette smoking. Plaintiff Woods, a cigarette smoker for fifty-three years, suffers from lung cancer, which he alleges was caused by prolonged smoking. The deceased spouses of plaintiffs Rothgeb and Dyer smoked cigarettes for forty-four and thirty-eight years, respectively; both died from lung cancer, which those plaintiffs also allege was caused by prolonged cigarette smoking.

Plaintiffs each alleged the same five theories of recovery. First, under the doctrine of strict liability, they alleged a defective design cause of action for marketing "a defectively designed product; a product which was unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use." Second, also under the strict liability doctrine, plaintiffs alleged a manufacturing defect cause of action for marketing "a defective and unreasonably dangerous product; a product that is dangerous to an extent beyond that which would be contemplated by the ordinary user of the product with the ordinary knowledge common to the community as to the product's characteristics." Third, under both strict liability and negligence, plaintiffs alleged a failure-to-warn cause of action for failing "to give adequate warnings of the danger or adequate instruction for safe use" of cigarettes. Fourth, based on the RESTATEMENT (SECOND) OF TORTS § 402B, plaintiffs alleged a misrepresentation cause of action for "affirmatively misrepresenting to the public that cigarette smoking did not involve significant health hazards." Fifth, plaintiffs alleged a cause of action for civil conspiracy, alleging that defendants had engaged in "both negligent Plaintiffs did not contend that defendants violated any provision of the Labeling Act itself.

and grossly negligent conduct in concert ... in an effort to nullify the overwhelming medical evidence that cigarette smoking is addictive and causes lung cancer and death."

Defendants filed motions for summary judgment, arguing (1) that the Labeling Act preempted all of plaintiffs' claims, and (2) that plaintiffs' claims were not viable as a matter of substantive law. The trial court granted summary judgment for defendants solely on preemption grounds.

MOTION TO STRIKE

Before discussing the merits of the plaintiffs' single point of error, we address defendants' motion to strike a portion of plaintiffs' brief. Under the subheading "An Overview of the Problem," the statement-of-facts section of plaintiffs' brief contains a lengthy dissertation on the dangers of smoking and the evils of the tobacco industry. Citing and quoting from a host of scientific and medical books, pamphlets, and journals--none of which is in the record--plaintiffs' brief sets forth twelve pages of "facts" interspersed with disparaging comments about the defendants. It is this portion of plaintiffs' brief that defendants ask this Court to strike.

It is elementary that, with limited exceptions not material here, an appellate court may not consider matters outside the appellate record. Sabine Offshore Service, Inc. v. City of Port Arthur, 595 S.W.2d 840 (Tex.1979); Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533 (Tex.App.1987, no writ). That record consists of the transcript and, where necessary, a statement of facts. Tex.R.App.P. 50(a). Material outside the record that is improperly included in or attached to a party's brief may be stricken. Henslee v. State, 375 S.W.2d 474 (Tex.Civ.App.1963, writ ref'd n.r.e.); Humble Oil & Refining Co. v. State, 158 S.W.2d 336, 338 (Tex.Civ.App.1942, writ ref'd).

Scientific and medical publications such as those referred to in plaintiffs' brief are outside the record unless they have been properly submitted to the trial court and included as part of the evidence. Indeed, in the trial court, statements from "learned treatises" are admissible only in conjunction with testimony by an expert witness, "even when the authority of the publication is otherwise established." Goode, Wellborn, & Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal 596 (1988); see Tex.R.Civ.Evid. 803(18).

Accordingly, we grant defendants' motion to strike. Given the present posture of this appeal, we will not require plaintiffs to rebrief; ³ however, in making our decision, we have not considered the offending portion of their brief.

For their part, defendants here have been guilty of a similar transgression. Attached as appendices to their briefs are copies of numerous orders, judgments, and other materials from a variety of state and federal trial courts purporting to reflect decisions upholding federal presumption in cigarette cases. As far as we can tell, these decisions are neither published nor scheduled for publication. They do not appear in the transcript as part of the summary judgment evidence. To the extent defendants intend for such rulings to be legal precedent, the Texas Rules of Appellate Procedure expressly prohibit the citation of unpublished opinions. Tex.R.App.P. 90(i). To the extent they are cited merely to show the existence of such decisions, they constitute facts outside the record. In either event, those portions of defendants' briefs are stricken sua sponte.

THE LABELING ACT

In 1964 the Surgeon General of the United States issued a widely publicized report implicating cigarette smoking as a cause of lung cancer and other diseases. In 1965 Substantially amended in 1970 and again by the Comprehensive Smoking Education Act of 1984, the Labeling Act contains a declaration of policy, which states that:

Congress responded to that report and the growing awareness of the health hazard posed by cigarettes by passing the Labeling Act. The most salient feature of the Act was a requirement that warning labels be placed on all cigarette packages and advertisements. ⁴

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 about any adverse health effects of cigarette smoking by inclusion of warning notices on each package of cigarettes and in each advertisement 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. § 1331.

The Act also contains a preemption provision, which reads as follows:

(a) No statement relating to smoking and health, other than the statement required by section 1333 of this title, shall be required on any cigarette package.

(b) No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.

15 U.S.C. § 1334. Other significant sections of the Labeling Act prohibit cigarette advertising on radio and television (§ 1335), require manufacturers to provide annually a list of ingredients added to tobacco in the manufacturing process (§ 1335a), require the Secretary of Health and Human Services and the Federal Trade Commission to report to Congress annually concerning various cigarette-related issues (§ 1337), require the Secretary of Health and Human Services to carry out a public information program about the dangers of cigarette smoking (§ 1341), and provide for criminal penalties for violations of the Act (§ 1338).

PRIOR COURT DECISIONS

Ten reported appellate court opinions, five federal and five state, have previously addressed the preemptive effect of the Labeling Act on common-law tort claims for injury...