Insolia v. Phillip Morris

• Decision Date: 16 June 2000
• Docket Number: RESEARCH-U,No. 99-2654,N,99-2654
• Citation: 216 F.3d 596
• Parties: (7th Cir. 2000) VINCENT INSOLIA, BILLY MAYS, MAUREEN LOVEJOY, KAREN INSOLIA, PHYLLIS MAYS, and LEE LOVEJOY, Plaintiffs-Appellants, v. PHILIP MORRIS INCORPORATED, R.J. REYNOLDS TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO CORPORATION, B.A.T. INDUSTRIES P.L.C., LORILLARD TOBACCO COMPANY, LIGGETT GROUP, INC., HILL AND KNOWLTON, INC., THE COUNCIL FOR TOBACCOS.A., INC., and THE TOBACCO INSTITUTE, INC., Defendants-Appellees. PHYSICIANS PLUS INSURANCE CORPORATION, Plaintiff-Appellant, v. PHILIP MORRIS INCORPORATED, R.J. REYNOLDS TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO CORPORATION, B.A.T. INDUSTRIES P.L.C., LORILLARD TOBACCO COMPANY, LIGGETT GROUP, INC., HILL AND KNOWLTON, INC., THE COUNCIL FOR TOBACCOS.A., INC., and THE TOBACCO INSTITUTE, INC., Defendants-Appellees. o. 99-2693
• Court: U.S. Court of Appeals — Seventh Circuit

Page 596

216 F.3d 596 (7th Cir. 2000)

VINCENT INSOLIA, BILLY MAYS, MAUREEN LOVEJOY, KAREN INSOLIA, PHYLLIS MAYS, and LEE LOVEJOY, Plaintiffs-Appellants, v. PHILIP MORRIS INCORPORATED, R.J. REYNOLDS TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO CORPORATION, B.A.T. INDUSTRIES P.L.C., LORILLARD TOBACCO COMPANY, LIGGETT GROUP, INC., HILL AND KNOWLTON, INC., THE COUNCIL FOR TOBACCO RESEARCH-U.S.A., INC., and THE TOBACCO INSTITUTE, INC., Defendants-Appellees.

PHYSICIANS PLUS INSURANCE CORPORATION, Plaintiff-Appellant, v. PHILIP MORRIS INCORPORATED, R.J. REYNOLDS TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO CORPORATION, B.A.T. INDUSTRIES P.L.C., LORILLARD TOBACCO COMPANY, LIGGETT GROUP, INC., HILL AND KNOWLTON, INC., THE COUNCIL FOR TOBACCO RESEARCH-U.S.A., INC., and THE TOBACCO INSTITUTE, INC., Defendants-Appellees.

No. 99-2654, No. 99-2693

In the United States Court of Appeals For the Seventh Circuit

Argued January 19, 2000

Decided June 16, 2000

Appeals from the United States District Court for the Western District of Wisconsin. No. 97 C 347 C--Barbara B. Crabb, Judge. [Copyrighted Material Omitted]

Before BAUER, CUDAHY, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

If there were such a thing as moral estoppel, the outcome of this appeal would be plain. For decades tobacco companies have assured the public that there is nothing to fear from cigarettes, yet they now slough off lawsuits like this one by professing that everybody knew all along that smoking was risky.

In taking this litigation stance, the cigarette makers either are suffering from amnesia or are acknowledging that their propaganda over the years has been ineffectual. Judicial estoppel, however, applies only to inconsistent positions adopted in litigation, and punishing hypocrisy is something left to a court of another realm. The only issue for us is whether this case was properly snuffed out on summary judgment.

This appeal stems from a lawsuit filed against this country's major cigarette makers and industry trade groups by three former smokers who developed lung cancer that they blame on smoking. All three smokers began smoking long before the first health warnings appeared on cigarette packages in 1965 and all three smoked two to three packs every day for several decades. Vincent Insolia began smoking in 1935, at age 12, and smoked until 1974. Billy Mays began smoking in 1951, at age 13, and continued until 1994. Maureen Lovejoy began smoking in 1953, at age 15, and quit in 1996. The three were diagnosed with lung cancer in the 1990's.

The former smokers and their spouses, all Wisconsin citizens, filed suit in state court but the defendants removed the case to federal court under diversity jurisdiction, 28 U.S.C. sec. 1332. District Judge Barbara B. Crabb extinguished all but one of the plaintiffs' claims on summary judgment, 53 F. Supp. 2d 1032 (W.D. Wis. 1999), and the remaining claim subsequently was dropped. On appeal, the plaintiffs argue that their strict liability, negligence, misrepresentation, and intentional exposure to a hazardous substance claims should have survived summary judgment, and they ask us to certify several questions to the Wisconsin Supreme Court.

We review a grant of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party. Bragg v. Navistar Int'l Transp. Corp., 164 F.3d 373, 376 (7th Cir. 1998). Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) if there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the party moving for summary judgment uncovers a hole in the opponent's case, the nonmoving party that bears the ultimate burden at trial must show that there is evidence creating a genuine issue of material fact. Id. at 323-25. Material facts are those which might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine if a reasonable trier of fact could find in favor of the nonmoving party. Id. The judge must ask whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The existence of a mere scintilla of evidence supporting a plaintiff's position is insufficient; there must be evidence on which a jury could reasonably find for the plaintiff. Id. at 252.

We begin with the strict liability claim. Wisconsin law, which governs this case, relies on the Restatement (Second) of Torts in this area. Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 230 N.W.2d 794, 797 (Wis. 1975); Dippel v. Sciano, 155 N.W.2d 55, 63 (Wis. 1967). Section 402A of the Restatement says that one who sells an unreasonably dangerous product is liable for physical harm caused by the product. However, the section's "comment i" explains that this rule "applies only where the defective condition of the product makes it unreasonably dangerous to the consumer . . . . The article sold must be 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." Wisconsin courts have restated the Restatement as follows: "If the average consumer would reasonably anticipate the dangerous condition of the product and fully appreciate the attendant risk of injury, it would not be unreasonably dangerous and defective. This is an objective test and is not dependent upon the knowledge of the particular injured consumer." Sumnicht v. Toyota Motor Sales, 360 N.W.2d 2, 16 (Wis. 1984), quoting Vincer, 230 N.W.2d at 798.

The plaintiffs contend that the average consumer at the time in question did not fully appreciate the health risks of smoking, in particular the addictive nature of smoking. We must first define this imaginary "average consumer" and pin down the time in question. The plaintiffs propose that in this context the "average consumer" should be a beginning smoker, maybe even a beginning teenage smoker. The Restatement incorporates the common-sense notion that if a consumer knows ahead of time that a product might be dangerous but goes ahead and uses it anyway, the consumer takes the risk upon himself and the manufacturer will not be held strictly liable. Nicotine's addictive grip makes it difficult to quit smoking. Consequently, the state of knowledge of the average consumer must be measured before the average person is hooked and is no longer capable of making a rational choice. We agree with the plaintiffs that, when it comes to an addictive product like cigarettes, the "average consumer" is the beginning smoker.

The plaintiffs also believe the average consumer should be a teenager because that is when many people begin smoking and become addicted. The defendants argue that Todd v. Societe Bic, S.A., 21 F.3d 1402, 1408 (7th Cir. 1994) (en banc), holds that children may never be the standard to measure consumer expectations. Todd interpreted Illinois law, which, like Wisconsin, adopted the Second Restatement of Torts, Section 402A. Id. at 1405. In Todd, a 22-month-old child was killed by a fire started by a 4-year-old child using a cigarette lighter that belonged to one of the adults in the household. Id. at 1404. The estate of the deceased child sued the manufacturer of the cigarette lighter, arguing that though the ordinary adult consumer would have appreciated the lighter's danger, children--who were foreseeable users--would not have understood the product's hazards. Id. at 1407-08. The court refused to expand the Restatement's consumer contemplation test from ordinary consumers to foreseeable users. Id. at 1408.

Contrary to the defendants' interpretation, Todd does not mean there is a universally fixed definition of the ordinary consumer that bears no relationship to the product in question. Because the primary consumers, users, and purchasers of cigarette lighters are adults, gauging the perceived risks of cigarette lighters from the average adult's viewpoint makes sense. The same logic holds true even for a product--like diapers--that is used primarily by children but that is purchased and the use of which is supervised by adults. But suppose there was a product-- say, bubble gum--of which children were not only the primary users, but also the primary purchasers, independent of any parental control. It would defy reason to excuse bubble gum manufacturers for bubble-gum-related injuries to children on the grounds that adults who rarely use the product would have appreciated bubble gum's hazards. Likewise, if the facts demonstrate that the ordinary beginning smoker is a teenager, then the consumer contemplation test should be measured from the average pre-smoking teenager's perspective.

Most smokers do begin smoking in their teens, but the record does not reflect this. The plaintiffs failed to introduce evidence that 82 percent of those who have ever smoked daily began smoking before age 18. Centers For Disease Control and Prevention, Morbidity and Mortality Weekly Report, Nov. 8, 1996, Volume 45, No. 45, citing U.S. Department of Health and Human Services, Preventing Tobacco Use Among Young People: A Report Of The Surgeon General (1994). Instead, the plaintiffs pointed to the 1988 Surgeon General's Report on Nicotine Addiction that said tobacco addiction "almost always begins during childhood or early adolescence" and to statistics indicating that about 23 percent of all high school students and 30 percent to 35 percent of high school seniors in 1958 and 1966 smoked. The Surgeon General's remark is imprecise, and statistics about what percentage of teenagers smoke are not pertinent to the question of what percentage of smokers began smoking as teenagers. Confined by the evidence in this record, we must view the ordinary consumer of cigarettes as a beginning adult smoker.

The second component of the consumer contemplation test we must consider is the time frame. The plaintiffs, oddly, suggest using 1...