Cipollone v. Liggett Group, Inc.

Decision Date05 January 1990
Docket NumberNos. 88-5732,88-5770,88-5771,88-5784,s. 88-5732
Citation893 F.2d 541
Parties, 10 UCC Rep.Serv.2d 625, Prod.Liab.Rep.(CCH)P 12,329 Antonio CIPOLLONE, individually and as Executor of the Estate of Rose D. Cipollone, v. LIGGETT GROUP, INC., a Delaware Corporation; Philip Morris Incorporated, A Virginia Corporation, and Lorillard, Inc., A New York Corporation. Appeal of PHILIP MORRIS, INC. Appeal of LORILLARD, INC. Appeal of LIGGETT GROUP, INC.
CourtU.S. Court of Appeals — Third Circuit

Marc Z. Edell (argued), Cynthia A. Walters, Budd Larner Gross Picillo Rosenbaum Greenberg & Sade, P.C., Short Hills, N.J., Alan M. Darnell, Wilentz, Goldman & Spitzer, Woodbridge, N.J., for appellant Antonio Cipollone.

Thomas E. Silfen (argued), Brown & Connery, Westmont, N.J., Arnold & Porter, Washington, D.C., Shook, Hardy & Bacon, Kansas City, Mo., for appellant Philip Morris, Inc.

Robert E. Northrip (argued), Rhonda E. Fawcett, W. Edward Reeves, Shook, Hardy & Bacon, Kansas City, Mo., William S. Tucker, Jr., Stryker, Tams & Dill, Newark, N.J., for appellant Lorillard, Inc.

Donald J. Cohn (argued), James V. Kearney, Webster & Sheffield, New York City, Alan S. Naar, Greenbaum, Rowe, Smith, Ravin, Davis & Bergstein, Woodbridge, N.J., for appellant Liggett Group, Inc.

Before GIBBONS, Chief Judge, BECKER and NYGAARD, Circuit Judges.

                OPINION OF THE COURT
                       TABLE OF CONTENTS                                                   PAGE
                I.     Introduction ....................................................... 546
                II.    The Relevant Facts Adduced at Trial ................................ 548
                III.   Procedural History ................................................. 552
                IV.    Should Mrs. Cipollone's Post1965 Conduct Have Been Considered
                         in Deciding Her Comparative Fault on the Failure to Warn
                         Claim? ........................................................... 556
                V.     Did the District Court Otherwise Err in Instructing the Jury on
                         the Failure to Warn Claim? ....................................... 559
                VI.    Did the District Court Err in Failing to Instruct the Jury That
                         Mrs. Cipollone's Nonreliance on Liggett's Safety
                         Advertisements Would Prevent Her From Recovering on Her
                         Express Warranty Claim? .......................................... 563
                VII.   Did the District Court Err in Failing to Instruct the Jury That
                         Comparative Fault Principles Apply to an Express Warranty
                         Claim? ........................................................... 570
                VIII.  Was There Sufficient Evidence to Support a Jury Finding That
                         Mrs. Cipollone's Injury Was Caused By Liggett's Breach of
                         Express Warranty? ................................................ 574
                IX.    The RiskUtility Claim ............................................. 577
                X.     Prejudgment Interest ............................................... 578
                XI.    Did the District Court Err in Granting Partial Summary Judgment
                         for Mr. Cipollone With Respect to the Defendants' Statute of
                         Limitations Defense? ............................................. 579
                XII.   Did the District Court Err in Holding That Federal Law Preempted
                         Plaintiff's Intentional Tort Claims? ............................. 581
                XIII.  Conclusion ......................................................... 583
                

BECKER, Circuit Judge.

I. INTRODUCTION

This appeal is from a final judgment in a protracted products liability case in which the plaintiff, Antonio Cipollone, seeks to hold Liggett Group, Inc., Lorillard, Inc., and Philip Morris, Inc., three of the leading firms in the tobacco industry, liable for the death from lung cancer of his wife, Rose Cipollone, who smoked cigarettes from 1942 until her death in 1984. Jurisdiction is founded on diversity of citizenship, 28 U.S.C. Sec. 1332, and New Jersey law applies. In an earlier opinion in the case, Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987), we held that the Federal Cigarette Labeling and Advertising Act ("Labeling Act"), 15 U.S.C. Secs. 1331-1340 (1982 & Supp. II 1984), which became effective January 1, 1966, preempted claims arising from smoking after January 1, 1966 (hereinafter post-1965) based upon the cigarette companies' advertising or promotion of cigarettes or upon the adequacy of their warnings as to the hazards of smoking.

Following that opinion, which stemmed from an interlocutory appeal, see 28 U.S.C. Sec. 1292(b), the case proceeded to a four-month long trial. At the conclusion of the trial, the jury, answering a series of special interrogatories, returned a verdict in the sum of $400,000.00 for the plaintiff in his individual capacity on the breach of express warranty claim. The jury also found the defendants strictly liable for failing to warn adequately of the hazards of their products, but returned a verdict in their favor on that claim because of Mrs. Cipollone's comparative fault. More precisely, the jury apportioned 80% of the responsibility for Mrs. Cipollone's injuries to her because of its finding that she knew and appreciated the damages of cigarette smoking and voluntarily chose to smoke.

Both sides have appealed, raising a plethora of issues. The prime defendant is Liggett Group, Inc. ("Liggett"), whose cigarettes Mrs. Cipollone smoked from 1942 to 1968. The briefs focus primarily on alleged errors in the district court's charge to the jury and on specific jury findings that may have preclusive effect. Considerable attention was also devoted to ancillary issues: the viability of the plaintiff's generic risk-utility theory of liability (the district court granted summary judgment for the defendants thereon); the failure of the district court to award plaintiff prejudgment interest; the district court's grant to plaintiff of partial summary judgment on defendants' statute of limitations defense; and the effect of our preemption decision on plaintiff's intentional tort claims (the district court held them to be preempted).

The most problematic issue on this appeal lies in the skewing effect on the trial of our interlocutory preemption decision, which created an artificial (although legally binding) time constraint on the determination of causation and liability. Under the aegis of that decision, the jury was forbidden to consider the effect of the defendants' post-1965 conduct and, concomitantly, could only consider whether a pre-1966 breach of warranty and failure to warn were the proximate cause of Mrs. Cipollone's smoking and death. However, the district court allowed the jury to consider Mrs. Cipollone's post-1965 smoking, on the theory that her post-1965 behavior was relevant to a comparative fault defense.

We conclude that the district court erred in permitting the jury to make a comparative fault determination based on Mrs. Cipollone's post-1965 behavior. Rather, the jury should have been instructed that Mrs. Cipollone's post-1965 conduct bore only on the apportionment of damages, but not on her comparative fault for her own injuries. Although in some respects the fairest and most natural approach would be to let the jury consider both sides' post-1965 conduct to the extent that it bears on apportionment of damages, that result would impermissibly impinge on the immunity from suit afforded the cigarette companies by the Labeling Act. Still, permitting the defendants to take advantage of Mrs. Cipollone's post-1965 conduct to escape liability altogether, particularly in the face of plaintiff's allegations that defendants engaged in post-1965 conduct designed to reassure smokers, creates an unacceptable imbalance.

The only way to give effect to our preemption decision and yet ensure fairness in the trial is to limit the evidence going to Mrs. Cipollone's comparative fault to her pre-1966 conduct. We find this result to be consistent with, and indeed compelled by, the New Jersey Supreme Court decision in Ostrowski v. Azzara, 111 N.J. 429, 545 A.2d 148 (1988). Thus, Mr. Cipollone is entitled to a new trial on his failure to warn claim.

Liggett's appeal on the express warranty claim presents an abstruse question about the nature of the reliance interest required by U.C.C. section 2-313, N.J.S.A. Sec. 12A:2-313. The attention we pay to this issue on appeal is somewhat ironic, given that the extensive trial focused on other theories of liability, particularly strict liability. The jury's verdict for the plaintiff on an express warranty theory makes our analysis necessary, however.

We conclude that the express warranty charge was flawed and that that portion of the verdict must also be set aside. Primarily, the district court erred to the extent that it prevented Liggett from proving, by a preponderance of the evidence, that Mrs. Cipollone did not believe the advertisements. The advertisements constitute an express warranty as long they constitute a basis of the bargain, that is, as long as Mr. Cipollone can prove that Mrs. Cipollone was aware of the advertisements and as long as Liggett does not prove that she disbelieved them.

We conclude that the district court did not err in barring a comparative fault defense to the express warranty claim because, on the facts of this case, it would have been impossible for Mrs. Cipollone to have known of the dangers of smoking and still have believed enough in Liggett's advertisements for them to constitute a warranty. In essence, the comparative fault issue collapses into the basis of the bargain issue. We further conclude that the district court did not err in denying Liggett's motion for judgment n.o.v., because there was sufficient evidence in the record to support conclusions that a warranty existed and was breached and that breach of that warranty proximately caused Mrs. Cipollone's cancer.

We reverse the district court's grant of summary judgment to ...

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