Dewey v. R.J. Reynolds Tobacco Co.

• Citation: 577 A.2d 1239,121 N.J. 69
• Parties: , 59 USLW 2082, Prod.Liab.Rep. (CCH) P 12,548 Claire E. DEWEY, Individually and as Executrix of the Estate of Wilfred E. Dewey, Deceased, Plaintiff-Respondent and Cross-Appellant, v. R.J. REYNOLDS TOBACCO CO., Defendant-Intervenor, and R.J. Reynolds Industries, Inc., American Brands, Inc., (formerly the American Tobacco Company, Inc.), Defendants, and Brown & Williamson Tobacco Corporation, Defendant-Appellant and Cross-Respondent.
• Decision Date: 26 July 1990
• Court: New Jersey Supreme Court

Page 69

121 N.J. 69

577 A.2d 1239, 59 USLW 2082,

Prod.Liab.Rep. (CCH) P 12,548

Claire E. DEWEY, Individually and as Executrix of the Estate

of Wilfred E. Dewey, Deceased, Plaintiff-Respondent and Cross-Appellant, v. R.J. REYNOLDS TOBACCO CO., Defendant-Intervenor, and R.J. Reynolds Industries, Inc., American Brands, Inc., (formerly the American Tobacco Company, Inc.), Defendants,

and

Brown & Williamson Tobacco Corporation, Defendant-Appellant

and Cross-Respondent.

Supreme Court of New Jersey.

Argued Jan. 18, 1989.

Decided July 26, 1990.

Martin London, New York City, for defendant-appellant and cross-respondent (Norris, McLaughlin & Marcus, attorneys; William C. Slattery, Somerville, on the briefs).

Peter N. Perretti, Jr., for defendant-intervenor (Riker, Danzig, Scherer, Hyland & Perretti, attorneys; Peter N. Perretti, Jr. and Alan E. Kraus, Morristown, on the brief).

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

Adam S. Henschel, submitted a brief on behalf of amicus curiae, Ass'n of Trial Lawyers of America, New Jersey Chapter (Greenberg & Prior, attorneys; William S. Greenberg, of counsel; William S. Greenberg and Adam S. Henschel, Princeton, on the brief).

The opinion of the Court was delivered by

CLIFFORD, J.

This products-liability case poses two troubling questions: (1) whether the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-41 (1982 & Supp. III 1985) (hereinafter Cigarette Act), preempts plaintiff's claims, and (2) whether the recently-enacted New Jersey Products Liability Law, N.J.S.A. 2A:58C-1 to -7 (hereinafter Products Liability Law) is applicable retroactively and renders a surviving claim invalid as a matter of law. The Law Division entered an order of partial summary judgment in favor of defendant Brown & Williamson Tobacco Co. Dewey v. R.J. Reynolds Tobacco Co., 216 N.J.Super. 347, 358, 523 A.2d 712 (1986). On the parties' interlocutory appeal and cross-appeal the Appellate Division affirmed. Dewey v. Brown & Williamson Tobacco Co., 225 N.J.Super. 375, 542 A.2d 919 (1988). We granted both plaintiff's and Brown & Williamson's motions for leave to appeal, 113 N.J. 379, 550 A.2d 481 (1988). We now answer the two questions posed above in the negative.

I

In 1982 plaintiff, Claire Dewey, individually and as executrix of her husband's estate, sued R.J. Reynolds Tobacco Co., R.J. Reynolds Industries, Inc., American Brands, Inc., and Brown & Williamson Tobacco Co. Plaintiff's complaint alleged that her husband had developed lung cancer from smoking defendants' cigarettes from 1942 until eight months before his death in 1980. Count one asserted general theories of design defect, including a claim of inadequate warning, and count two alleged theories of fraud and misrepresentation in advertising. Counts three and four were derivative.

During discovery, plaintiff disclosed that her husband had not smoked defendant Brown & Williamson's cigarettes ("Viceroy") until 1977, thirty-five years after he had started to smoke and eleven years after Congress had enacted the Cigarette Act, which requires that each package of cigarettes carry a warning of the alleged health hazards of smoking. See 15 U.S.C. § 1333. Brown & Williamson then moved for summary judgment on two grounds: (1) that the Cigarette Act preempted all of plaintiff's claims, and, alternatively, (2) that the complaint was deficient as a matter of New Jersey substantive law because comment i of Section 402A of the Restatement of Torts (Second) (hereinafter Restatement) bars the imposition of strict liability for a product "whose danger is contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics * * *."

The trial court dismissed so much of the first count of plaintiff's complaint as alleged liability for failure to warn, and the entire second count, which alleged fraud and misrepresentation in advertising, on the ground that the Cigarette Act preempts all those claims. 216 N.J.Super. at 355, 523 A.2d 712. That result was compelled, according to the court, by the Third Circuit's interlocutory decision in Cipollone v. Liggett Group, 789 F.2d 181 (1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987), which held that the federal Cigarette Act impliedly preempted state-law damage actions that challenge "either the adequacy of the warning on cigarette packages or the propriety of a party's actions with respect to the advertising and promotion of cigarettes." 789 F.2d at 187 (footnote omitted). The Third Circuit reaffirmed its preemption decision in post-trial proceedings in Cipollone v. Liggett Group, 893 F.2d 541, 581-82 (1990), with Chief Judge Gibbons concurring "only because this panel is bound" by what he perceived as the court's previous "erroneous opinion." Id. at 583.

The trial court in this case, however, did not dismiss plaintiff's design-defect claim on preemption grounds. The court believed that "Cipollone made clear that the regulatory scheme of the [Cigarette] Act and the federal interest involved was not so pervasive as to preclude all tort remedies which a plaintiff in smoking and health-related litigation may have under state law." 216 N.J.Super. at 356, 523 A.2d 712. Plaintiff could pursue a design-defect claim by showing, under the "risk-utility" test for determining design defect, that the risks posed by cigarettes outweighed their utility. She did not have to prove the existence of an alternative, safer design. Ibid. The court made no mention of the impact of comment i of Restatement Section 402A on the claim that survived preemption.

The Appellate Division affirmed substantially for the reasons expressed by the trial court, subject to "such modifications as intervening law makes necessary," 225 N.J.Super. at 377, 542 A.2d 919. Specifically, the Appellate Division modified the trial court's decision regarding the design-defect claim by stating that the principles of comment i of the Restatement Section 402A were applicable to the case pursuant to N.J.S.A. 2A:58C-3a(2), the "defenses" section of the Products Liability Law. Id. at 385, 542 A.2d 919. Thus, the court had "no quarrel with defendant's proposition that plaintiff may not recover if a factfinder concludes that the death of her decedent was caused in large measure from exposure to the danger inherent in all cigarettes, a danger acknowledged to be within his contemplation as an ordinary consumer." Id. at 386, 542 A.2d 919. However, that proposition did not compel a legal conclusion that there was no material issue of fact regarding defendant's ability " 'to minimize the unavoidable [i.e. inherent] dangers attendant to cigarette smoking.' " Ibid. (quoting 216 N.J.Super. at 358, 523 A.2d 712). Plaintiff was therefore entitled to present to a factfinder evidence regarding alternative design or, as the Appellate Division described it, evidence "concerning defendant's cigarettes as defendant designed them and decedent smoked them." Ibid. The Appellate Division then summarized its holding by stating that although "the jury should not be asked to compare the risks and utility inherent in cigarette smoking nor to make findings of fact concerning whether decedent was adequately warned of those risks, plaintiff should be permitted to go forward with her cause of action." Id. at 388, 542 A.2d 919.

In addition to granting plaintiff and Brown & Williamson leave to appeal, we allowed defendant R.J. Reynolds Tobacco Company to file a brief and appear as intervenor.

II

Integral to our analysis is a preliminary determination of whether plaintiff's complaint states a claim for design defect. Although our Rules of Court require that "all pleadings must be construed liberally in the interest of justice, R. 4:5-7, a party's pleadings must nonetheless fairly apprise an adverse party of the claims and issues to be raised at trial." Miltz v. Borroughs-Shelving, 203 N.J.Super. 451, 458, 497 A.2d 516 (App.Div.1985); see also Hewitt v. Hollohan, 56 N.J.Super. 372, 377, 153 A.2d 371 (App.Div.1959) ("a vague complaint, full of generalities, frequently indicates that the pleader has not thought through his cause of action, and does not yet know precisely upon what theory he will present his case"). In Miltz for example, the allegation in a complaint that the plaintiff's injuries were proximately caused by the defendant's "failure to install stairs properly," 203 N.J.Super. at 458, 497 A.2d 516, was insufficient notice of a negligent-inspection theory of the case. In this case defendants similarly assert that they were not aware of plaintiff's claim for design defect until the summary-judgment motion because plaintiff's second amended complaint omitted the term "design defect."

Although the first count of the second amended complaint does not contain the words "design defect," the complaint does allege that defendants' tobacco products "were not reasonably fit, safe and suitable for human use at the time the products were placed in the stream of commerce"--the talismanic language of a strict-liability claim. See Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 176, 406 A.2d 140 (1979). Immediately following the foregoing language, the complaint asserts that "Defendants further failed to warn the general public and/or Plaintiff's decedent of deleterious, toxic and hazardous nature of their products for numerous years," and that "[t]he unfitness, unsuitableness and unsafeness of the Defendants' products, along with the failure of the Defendants to warn and/or convey an adequate warning caused the Plaintiff's decedent to suffer serious, severe,...