Dewey v. Brown & Williamson Tobacco Corp.

CourtNew Jersey Superior Court – Appellate Division
Citation225 N.J.Super. 375,542 A.2d 919
Parties, Prod.Liab.Rep. (CCH) P 11,891 Claire E. DEWEY, Individually and as Executrix of the Estate of Wilfred E. Dewey, deceased, Plaintiff-Appellant, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Defendant-Respondent, and R.J. Reynolds Tobacco Company, R.J. Reynolds Industries, Inc., and American Brands, Inc. (formerly the American Tobacco Company, Inc.), Defendants. Claire E. DEWEY, Individually and as Executrix of the Estate of Wilfred E. Dewey, deceased, Plaintiff-Respondent, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Defendant-Appellant, and R.J. Reynolds Tobacco Company, R.J. Reynolds Industries, Inc., and American Brands, Inc. (formerly the American Tobacco Company, Inc.), Defendants.
Decision Date23 May 1988

Marc Z. Edell, Short Hills, for plaintiff-appellant and respondent Claire E. Dewey (Budd, Larner, Gross, Picillo, Rosenbaum, Greenberg & Sade, Short Hills, attorneys; Alan M. Darnell, Woodbridge, Wilentz, Goldman & Spitzer, Woodbridge, of counsel; Marc Z. Edell and Cynthia A. Walters, Short Hills, on the brief).

Martin London, New York City counsel, admitted pro hac vice, for defendant-respondent and appellant Brown & Williamson Tobacco Corp. (Norris, McLaughlin & Marcus, Somerville, attorneys; William C. Slattery, Somerville, on the brief).

Before Judges PETRELLA, BAIME and ASHBEY.

The opinion of the court was delivered by

ASHBEY, J.A.D.

In this cigarette product liability action, plaintiff sought damages from defendant cigarette manufacturer, Brown & Williamson Tobacco Corporation, for the death of her husband. Judge Lucchi granted defendant's motion for partial summary judgment, dismissing that count of plaintiff's complaint which asserted liability based upon defendant's failure to warn of the dangers of smoking its product, Viceroy cigarettes, but denied the balance of defendant's motion. By leave granted, the parties separately appealed from these rulings. For purposes of this opinion we consolidate these appeals and affirm, substantially for the reasons expressed by Judge Lucchi in his written opinion, reported at 216 N.J.Super. 347, 523 A.2d 712 (Law Div.1986), and subject to such modifications as intervening law makes necessary. 1

We are first satisfied, as was Judge Lucchi, that plaintiff's cause of action for failure to warn is preempted by the 1965 Cigarette Labeling and Advertising Act, 15 U.S.C.A. sec. 1331 et seq. (Labeling Act) (216 N.J.Super. at 350, 523 A.2d 712). We recognize that Judge Lucchi's ruling was grounded in his conviction that he was bound by the federal courts in their interpretation of federal statutes, particularly by the opinion of the Third Circuit in Cipollone v. Liggett Group, Inc., 789 F.2d 181 185-188 (3 Cir.1986), cert. den. 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987) (216 N.J.Super. at 351-352, 523 A.2d 712).

We need not rule, however, on whether Judge Lucchi was bound by the Third Circuit opinion. 2 Our independent review convinces us that the Labeling Act does preempt plaintiff's common law action for failure to warn. 15 U.S.C.A. sec. 1334. See Feldman v. Lederle Laboratories, 97 N.J. 429, 460, 479 A.2d 374 (1984); Andre v. Union Tank Car Co., Inc., 213 N.J.Super. 51, 65, 516 A.2d 277 (Law Div.1985), aff'd 216 N.J.Super. 219, 523 A.2d 278 (App.Div.1987).

Any preemption analysis begins with examining whether the preemption is "express." "Express preemption" is defined as created by Congress's declaration to preclude state regulation in the given area, and "implied preemption" occurs when Congress, "through the structure or objectives of federal law, has impliedly precluded state regulation in the area." L. Tribe, American Constitutional Law, sec. 6-25 at 481 n. 14 (2d ed. 1988).

Because all of the cases construing the preemptive effect of the Act have concluded that what is involved is "implied preemption", we consider Professor Tribe's further words apposite.

These ... categories of preemption are anything but analytically air-tight. For example, even when Congress declares its preemptive intent in express language deciding exactly what it meant to preempt often resembles an exercise in implied preemptive analysis. [Ibid.]

The specific preemptive language is:

(a) No statement relating to smoking and health, other than the statement required by [the Act], 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.A. sec. 1334].

Admittedly, section 1334 does not expressly prohibit state tort actions which are predicated on asserting that the cigarette manufacturer's required warning on the package is inadequate. In construing the congressional meaning, we look to the nature of the subject. Tort claims are an area traditionally reserved to the states. We acknowledge the presumption against preemption. The United States Supreme Court has repeatedly emphasized that, " 'the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' " Puerto Rico Dep't of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. ----, ----, 108 S.Ct. 1350, 99 L.Ed.2d 582 (1988), quoting Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715, 105 S.Ct. 2371, 2376, 85 L.Ed.2d 714 (1985).

On the other hand, although the extent of the preemption in the Act requires statutory construction, the fact of preemption is express. Not only does the Act say that no "State law" may require a different cigarette warning, it also says that one object of the Act is to prevent "diverse, nonuniform, and confusing cigarette labeling and advertising regulations," 15 U.S.C.A. sec. 1331. Our task, therefore, is to construe this specific preemptive language and to give effect to the Congressional intent there expressed. Cf. California Federal Sav. & Loan Ass'n. v. Guerra, 479 U.S. 272, ----, 107 S.Ct. 683, 697, 93 L.Ed.2d 613, 632-633 (1987) (Scalia, J., concurring). Is the term "State law" in the Act intended to be limited to state statutes or state regulations? We think not. 3

Substantial federal authority construing the preemption provisions accords with Cipollone and is persuasive on this point. See Palmer v. Liggett Group, Inc., 825 F.2d 620 (1 Cir.1987); Stephen v. American Brands, Inc., 825 F.2d 312 (11 Cir.1987); Gunsalus v. Celotex Corp., 674 F.Supp. 1149, 1159 (E.D.Pa.1987). Much of the analysis focuses on the Congressional scheme, implying preemption because the objectives of the federal law are so clear that a contrary result would present an obstacle to their attainment, a principle of ascertaining implied preemptive congressional intent. As the Palmer court said,

It is these policies [health protection and trade protection], and more importantly, the balance fixed between them that is our focus. The language of sec. 1331 even measures the relative weight of the policies: the federal warning should protect commerce "to the maximum extent" consistent with its health policy. Thus, we consider now the effect of the introduction of a state tort claim into this congressionally calibrated system. As discussed earlier, Congress ran a hard-fought, bitterly partisan battle in striking the compromise that became the Act. It is inconceivable that Congress intended to have that carefully wrought balance of national interests superseded by the views of a single state, indeed, perhaps of a single jury in a single state. Contrary to the District Court's view, we therefore hold that a suit for damages on a common law theory of inadequate warning--if the warning given complies with the Act--disrupts excessively the balance of purpose set by Congress, and is thus preempted. [Palmer v. Liggett Group, Inc., supra, 825 F.2d at 626].

Respecting the specific preemption language, we are also satisfied that upholding plaintiff's challenge to the federally mandated warning is necessarily in conflict with the Act's express terms. Either the federally prescribed warning is adequate under our law or it is not. As the Palmer court further said,

... Once a jury has found a [federally mandated] label inadequate under state law, and the manufacturer liable for damages for negligently employing it, it is unthinkable that any manufacturer would not immediately take steps to minimize its exposure to continued liability. The most obvious change it can take, of course, is to change its label. Effecting such a change in the manufacturer's behavior and imposing such additional warning requirements is the very action preempted by sec. 1334 of the Act. Indeed, it arrogates to a single jury the regulatory power explicitly denied to all fifty states' legislative bodies. [Palmer v. Liggett Group, Inc., supra, 825 F.2d at 627-628].

We agree. It is clear to us that the preservation of plaintiff's failure to warn claim is necessarily in conflict with the Act's express limitations on conflicting state law and with the Congressional purpose of preventing diversity in the cigarette labeling requirements of the several states. 4

Although we also agree with Judge Lucchi that plaintiff's submissions were otherwise sufficient to withstand defendant's summary judgment motion, we consider more discussion necessary concerning the viability of plaintiff's remaining cause of action. In support of its contention that plaintiff had no remaining cause of action, defendant first urged that it was entitled to summary judgment because the Labeling Act precluded any theory of liability, in addition to precluding one based upon a failure to warn. Judge Lucchi reasoned that a manufacturer's strict liability for product defect consequences can take one of three forms: manufacturing...

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    ...on substantive law grounds. Id. at 420-21. 9. Dewey v. R.J. Reynolds Tobacco Co., 577 A.2d 1239 (N.J.1990), rev'g in part 225 N.J.Super. 375, 542 A.2d 919 (1988), aff'g 216 N.J.Super. 347, 523 A.2d 712 In Dewey, the widow of a smoker who had died of lung cancer sued under theories of design......
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