Insolia v. Philip Morris Inc.

Decision Date20 December 2000
Docket NumberNo. 97-C-0347-C.,97-C-0347-C.
Citation128 F.Supp.2d 1220
PartiesVincent INSOLIA and Karen Insolia, Billy Mays and Phyllis Mays and Lee Lovejoy, Plaintiffs, and Physicians Plus Insurance Corporation, Party joined pursuant Wis. Stat. § 803.03 v. PHILIP MORRIS INCORPORATED; R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation; Lorillard Tobacco Company; Liggett Group, Inc.; The Council for Tobacco Research — U.S.A., Inc.; and The Tobacco Institute, Inc., Defendants.
CourtU.S. District Court — Western District of Wisconsin

James A. Olson, Lawton & Cates, S.C., Madison, WI, for Insolia, Karen Insolia, Vincent.

Richard L. Schmidt, Boardman, Suhr, Curry & Field, Madison, WI, for Physicians Plus Ins.

Michael T. Graham, Jackson, Lewis, Schnitzler and Krupman, Chicago, IL, for Associates' Health and Welfare.

Mullen J. Dowdal, Asst U.S. Attorney, Madison, WI, for Shalala, Donna.

Michael L. Zaleski, Quarles & Brady, Madison, WI, for Philip Morris Incorporated.

James R. Clark, Foley & Lardner, Milwaukee, WI, for R.J. Reynolds Tobacco Company.

Michael P. Crooks, Peterson, Johnson, & Murray, S.C., Madison, WI, for Brown & Williamson Tobacco Corp.

Bruce A. Schultz, Attorney at Law, Madison, WI, for Lorillard Tobacco Company.

Robert B. Raschke, Lindquist & Vennum, Minneapolis, MN, for Liggett Group Inc.

John H. Schmid, Axley Brynelson, Madison, WI, for the Council for Tobacco Research.

John Koeppl, Attorney at Law, Madison, WI, for the Tobacco Institute, Inc.


CRABB, District Judge.

This civil suit for monetary relief was filed by persons seeking damages for injuries suffered as a result of smoking cigarettes. It is before the court after having been dismissed, appealed and remanded.

In an order entered in May 1999, I granted defendants' motion for summary judgment on all but one of the many claims raised by plaintiffs in their complaint, which fell into the categories of negligence, negligence per se (strict liability), intentional exposure to a hazardous substance and conspiracy. Shortly thereafter, the parties stipulated to dismissal of the one remaining claim and I entered final judgment on the entire suit. Plaintiffs appealed. The Court of Appeals for the Seventh Circuit upheld the grant of summary judgment in large part, but concluded that it was error to grant judgment to defendants on plaintiffs' claims of ordinary negligence. See Insolia v. Philip Morris Inc., 216 F.3d 596, 604 (7th Cir. 2000). The court agreed that plaintiffs could not make out a claim of strict liability because they were unable to show that tobacco products were "`dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it with the ordinary knowledge common to the community as to its characteristics.'" Id. at 599 (quoting Restatement (Second) of Torts § 402A, cmt. i). The court recognized that Wisconsin courts would find liable persons who sell unreasonably dangerous products, but it held that cigarettes did not fall into that category. It agreed with my conclusion that the ordinary consumer of cigarettes would have recognized in 1935 and afterward that smoking cigarettes was harmful to health and habit forming. See id. at 603. The court rejected plaintiffs' argument that consumers cannot be said to appreciate the full danger of cigarettes unless they know they are not merely habit forming but addictive.

After reaching the conclusion that cigarettes were not an unreasonably dangerous product, the court of appeals explained why the consumer contemplation test did not apply to claims of ordinary negligence. "[N]egligence per se [strict liability] is about effect, while negligence is about conduct leading to that effect. Negligence — unlike negligence per se — requires proving foreseeability." Id. at 604. The court made the point that a defendant could be found negligent but not negligent per se. "`[T]here may be recovery for the negligent design of a product even though it is not unreasonably dangerous in the 402A sense.'" (quoting Greiten v. LaDow, 70 Wis.2d 589, 603, 235 N.W.2d 677, 685 (1975)). Finding that plaintiffs' negligence claim "revolves around the tobacco companies' conduct in producing cigarettes," id. at 604, 235 N.W.2d 677, the court held that the claim of ordinary negligence should go to the jury.

Defendants have now moved for judgment on the pleadings, contending that as a matter of law plaintiffs have no viable claims of negligence. Oral argument was held on the motion on December 14, 2000. One might think defendants' motion frivolous in light of the court of appeals' decision. Plaintiffs do; they assert that defendants' motion is barred by the law of the case doctrine, which prohibits re-argument of issues that have been decided in the same case, and is based on the sound public policy that litigation should come to an end. "The gist of the doctrine is that once an appellate court either expressly or by necessary implication decides an issue, the decision will be binding upon all subsequent proceedings in the same case." Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir. 1991). Defendants agree that the law of the case prohibits re-visiting an issue that has been decided. Their contention is that the court of appeals never reached the precise issue they believe plaintiffs are raising, which is that defendants should be held liable merely for continuing to manufacture and sell a product they knew was dangerous.

At oral argument in this court, plaintiffs disavowed any argument that defendants could be found negligent solely because they continued to sell and manufacture tobacco products. Indeed, plaintiffs maintained that they had never made such an argument. This latter assertion is puzzling in light of the arguments they made in their appellate brief and in their brief in opposition to the present motion. For example, plaintiffs state at page 10 of their brief in opposition, dkt. # 391, that once defendants appreciated the dangers of cigarettes, "they could have quit selling cigarettes." See also id. at 11 ("The Defendants failed to use reasonable care by continuing to manufacture a product that was addicting and...."); Pls Appellants' Initial Br. at 14 ("The evidence establishes that defendants reasonably foresaw both the addiction and the lung cancer yet continued to market and sell cigarettes....") Indeed, my understanding that this was the core of plaintiffs' claim of ordinary negligence underlay the statements in my order granting summary judgment to the effect that plaintiffs' negligent manufacture and negligent marketing claims fit squarely within the negligence per se category. See Insolia, 53 F.Supp.2d at 1039 (plaintiffs are alleging that "defendants breached a duty of care to plaintiffs by manufacturing and marketing an unreasonably dangerous and defective product").

It is prudent for plaintiffs to abandon their argument that a seller or manufacturer could be found negligent simply for continuing to sell and manufacture a dangerous product. First, I am persuaded that the court of appeals did not hold that such an assertion would state a claim. Although there is language in the opinion that suggests it did, see Insolia, 216 F.3d at 604-05 ("The plaintiffs argue that by going forward with the product despite that knowledge [of its harmful properties], the tobacco companies breached their duty of ordinary care and thus are liable for negligence."), closer examination reveals that the court of appeals never gave express consideration to the question whether plaintiffs could state a claim of negligence without alleging some specific fault "during the process." Id. at 605. Implicit in the court of appeals' decision is its assumption that plaintiffs' negligence claim rests on allegations of fault. See id. ("[Plaintiffs'] negligence theory that the defendants were at fault during the process is independent of their strict liability claim regarding the final result." (emphasis added). See also id. ("Throughout the [district court's] opinion, the plaintiffs' negligence claim is consistently called a `negligence' claim. The former smokers' claim of negligent design and manufacture in this case is analogous to the ... plaintiffs' negligence claim [in Howes v. Deere & Co., 71 Wis.2d 268, 238 N.W.2d 76 (1976)], not to their strict liability claim.")). In Howes, the plaintiffs had alleged that the defendant had both manufactured and sold an unreasonably dangerous riding mower and had been negligent in designing and manufacturing the mower with an inadequately guarded blade and negligent in other specific respects. The supreme court held that the trial court erred when it required the plaintiffs to choose between their two theories, negligence per se and ordinary negligence.

The court of appeals' citation to Howes is evidence of its assumption that plaintiffs' negligence claim rested on specific allegations of lack of ordinary care at some stage of the manufacturing and marketing stages. Had the court understood plaintiffs' claim as resting solely on their allegation that defendants knew they were manufacturing and selling a product that was not dangerous beyond the contemplation of the ordinary consumer, the court would not have held that the claim could go to the jury without explaining its justification for working such a sea change in the common law of torts. To use an analogy: it would be commonplace for a court to allow a jury to decide the negligence of a manufacturer that made a knife that fractured unexpectedly under ordinary use; it would be unprecedented to allow a jury to decide the negligence of a manufacturer whose knives worked exactly as an ordinary consumer would expect and whose alleged fault was solely that the plaintiff had been cut while using the knife.

Furthermore, in its opinion in Insolia, the court of appeals considered the viability of another claim asserted by plaintiffs that was based on intentional exposure to a hazardous...

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