Dewey v. R.J. Reynolds Tobacco Co.

Decision Date22 December 1986
Citation523 A.2d 712,216 N.J.Super. 347
PartiesClaire E. DEWEY, Individually and as Executrix of the Estate of Wilfred E. Dewey, Deceased, Plaintiff, v. R.J. REYNOLDS TOBACCO CO., R.J. Reynolds Industries, Inc., American Brands, Inc., and Brown & Williamson Tobacco Corporation, Defendants.
CourtNew Jersey Superior Court

Cynthia A. Walters, Short Hills, for plaintiff (Budd, Larner, Gross, Picillo, Rosenbaum, Greenberg & Sade, Short Hills, attorneys; Alan M. Darnell, Woodbridge, of counsel; Cynthia A. Walters and Marc Z. Edell, Short Hills, on the brief).

Martin London, New York City, admitted pro hac vice, for defendant Brown & Williamson Tobacco Corp. (Paul, Weiss, Rifkind, Wharton & Garrison, attorneys; Martin Flumenbaum, New York City, of counsel). William C. Slattery for defendant (Norris, McLaughlin & Marcus, Livingston, attorneys).

LUCCHI, J.S.C.

This matter comes before the court on a motion for summary judgment brought by defendant Brown & Williamson Tobacco Corporation (Brown & Williamson). The issue raised by Brown & Williamson is whether the federal Cigarette Labeling and Advertising Act, 15 U.S.C.A. §§ 1331-1340 (1982) (the act), preempts the state common law and statutory claims brought by plaintiff Claire E. Dewey in this court. The first count of the complaint alleges, in pertinent part, the failure of defendants, R.J. Reynolds Tobacco Co., R.J. Reynolds Industries, Inc., American Brands, Inc., and Brown & Williamson, to adequately warn of the hazardous nature of the cigarettes that they manufactured and sold. The second count of the complaint challenges the propriety of defendants' advertising and promotion of cigarettes. Brown & Williamson moves for summary judgment based upon the recent Third Circuit decision in Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3 Cir.1986), which held that the act preempts state law damage actions relating to smoking and health that challenge either the adequacy of the federally-mandated warning on cigarette packages or the propriety of a party's efforts respecting its promotion and advertising of cigarettes.

This motion presents questions of first impression in this State: first, whether this court is bound by the Third Circuit's interpretation of the federal Cigarette Labeling and Advertising Act and, second, whether plaintiff's claims under state law are preempted by the act.

I.
A. Factual and Procedural Background.

In her complaint and in papers submitted by her attorneys, Claire Dewey alleges that her husband, Wilfred, developed lung cancer as a result of smoking defendants' cigarette products from 1942 until 1980. Mr. Dewey died of lung cancer in November 1980. On August 20, 1982, Mrs. Dewey commenced this action as executrix of her husband's estate. An amended complaint was filed on October 19, 1982, and on June 28, 1983, Mrs. Dewey filed a second amended complaint that is the subject of this motion.

In 1966, Congress enacted the Federal Cigarette Labeling and Advertising Act which required imposition of the following warning label on cigarette packages: "Caution: Cigarette Smoking May Be Hazardous to Your Health." 15 U.S.C.A. § 1333 (1970). It is undisputed that Mr. Dewey continued to smoke after this warning label appeared. From 1977 until 1980, Mr. Dewey smoked Viceroy-brand cigarettes, a Brown & Williamson product. At her deposition, Mrs. Dewey indicated that her husband was aware of the alleged dangers of cigarette smoking and the federally-mandated warning on cigarette packages.

The second amended complaint contains four counts. The first count alleges that defendants are strictly liable for the manufacture of cigarette products "which were not reasonably fit, safe and suitable for human use at the time the products were placed in the stream of commerce." The first count further alleges that defendants "failed to warn the general public and/or Plaintiff's decedent of [the] deleterious, toxic, and hazardous nature of their products for numerous years. In recent years, minimal warnings conveyed by the Defendants ... were completely inadequate." The second count alleges fraud and misrepresentation through defendants' commercial advertising and marketing of their products. The third and fourth counts are derivative in nature. The third count alleges a cause of action pursuant to New Jersey's Wrongful Death Statute, N.J.S.A. 2A:31-1 et seq. The fourth count contains Mrs. Dewey's claim for loss of consortium resulting from her husband's death.

In answer to the complaint, Brown & Williamson pleaded that all of plaintiff's claims are preempted by the Federal Cigarette Labeling and Advertising Act and that the complaint failed to state a cause of action. Brown & Williamson moves to dismiss the complaint based upon the "preemption defense," i.e., that Wilfred Dewey began smoking this defendant's Viceroy product after the appearance of the federal warnings on cigarette packages in 1966.

B. The Cipollone Decision.

In Cipollone, the Third Circuit became the first federal appellate court to determine whether the act preempts state common law damage claims. Plaintiffs in Cipollone, like Mrs. Dewey, alleged that a spouse's death was caused by defendant cigarette companies' marketing of an unsafe and defective product and that defendants failed to warn of the hazards of cigarette smoking. 789 F.2d at 184. The Cipollone defendants contended that those claims were preempted by the act. The district court held that none of plaintiff's claims were expressly or impliedly preempted by the act and therefore granted plaintiff's motion to strike the preemption defense. 593 F.Supp. 1146 (D.N.J.1984) (Sarokin, J.)

The question was then certified for appeal to the Third Circuit. In reversing the district court, the Third Circuit relied upon principles of implied preemption to determine that Congress, in enacting a comprehensive scheme regulating cigarette labeling and advertising relative to smoking and health, "intended to occupy a field" in order to avoid diverse, non-uniform state regulations. 789 F.2d at 186 (citing Cipollone, 593 F.Supp. at 1164). The Third Circuit specified, however, that it was adopting a "restrained view" in evaluating whether Congress intended to entirely supercede state tort law claims such as those presented here, recognizing the overriding presumption against the preemption of state law by Congress. Id. at 185-186. The court held, therefore, that only those state law claims in conflict with the act's dual objectives of warning the public of the hazards of cigarette smoking and protecting national economic interests through a uniform cigarette labeling regulation would be preempted.

The court identified three types of state law damage claims ripe for preemption: those which predicate liability upon the adequacy of the warning labels imprinted on cigarette packages, those which challenge the propriety of a manufacturer's promotion or advertising of its cigarette products, and those claims whose success "necessarily depends on the assertion that a party bore the duty to provide a warning to consumers in addition to the warning Congress has required on cigarette packages." Id. at 187. The Third Circuit declined to rule on the merits of the Cipollone's claims and thus remanded the case to the district court to determine which claims would be subject to preemption.

Before turning to the merits of the within motion, this court must determine the extent to which it is bound by the Cipollone decision. In Cipollone, the Third Circuit was called upon to construe a federal statute, the Cigarette Labeling and Advertising Act. New Jersey courts have long adhered to the principle that when confronted with the interpretation and application of a federal statute, federal decisional law is binding upon the state court. Southern Pacific Co. v. Wheaton Brass Works, 5 N.J. 594, 76 A.2d 890 (1950), cert. den. 341 U.S. 904, 71 S.Ct. 614, 95 L.Ed.2d 1343 (1951); Urban League of Greater New Brunswick v. Borough of Carteret, 170 N.J.Super. 461, 406 A.2d 1322 (App.Div.1979), rev'd on other grounds 92 N.J. 158, 456 A.2d 390 (1983); Penbrook Hauling Co. v. Sovereign Construction Co., 128 N.J.Super. 179, 319 A.2d 277 (Law Div.1974); aff'd 136 N.J.Super. 395, 346 A.2d 433 (App.Div.1975).

This principle is of particular significance here in the novel context of a products liability action against a cigarette manufacturer. We note that there is a conflict among federal district courts around the country in interpreting the preemptive effect of the act on state law damage actions, some of whom have declined to follow the Third Circuit's decision in Cipollone. 1 There is authority in New Jersey to the effect that a state court, when confronted with the interpretation of a federal statute, is not bound by federal decisional law where there are conflicting opinions in the district courts. See Rollins Environmental Services v. Logan Twp., 199 N.J.Super. 70 (Law Div.1984), rev'd on other grounds, 209 N.J.Super. 556, 508 A.2d 271 (App.Div.1986) (interpreting the federal Toxic Substances Control Act, 15 U.S.C.A. § 2601 et seq.). That is not the situation here, however. There is no conflict among the federal circuit courts on the preemption issue since Cipollone is the sole federal appellate decision and the highest judicial authority to date to have construed the act with respect to common law tort claims. For these reasons, we consider ourselves bound by the Third Circuit's construction of the act.

II.

In considering Brown & Williamson's motion for summary judgment, we accept, as we must, all the evidence supporting plaintiff's position and accord her the benefit of all inferences reasonably and legitimately deducible therefrom. Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706 (1969). Further, since the Third Circuit did not specify which common law claims were subject to preemption in Cipollone, we must evaluate...

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6 cases
  • Carlisle v. Philip Morris, Inc.
    • United States
    • Texas Court of Appeals
    • February 6, 1991
    ...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 (1986). In Dewey, the widow of a smoker who had died of lung cancer sued under theories of design defect, failure to warn, and misrepre......
  • Dewey v. R.J. Reynolds Tobacco Co.
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    • July 26, 1990
    ...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. De......
  • Dewey v. Brown & Williamson Tobacco Corp.
    • United States
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    • May 23, 1988
    ...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. We are first satisfied, as was Judge Lucchi, that plai......
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