Kotler v. American Tobacco Co.

• Citation: 981 F.2d 7
• Decision Date: 04 December 1992
• Docket Number: Nos. 90-1297,90-1400,s. 90-1297
• Parties: , Prod.Liab.Rep. (CCH) P 13,347 Joanne KOTLER, Individually and as Administratrix, etc., Plaintiff, Appellant, v. The AMERICAN TOBACCO COMPANY, et al., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 7

981 F.2d 7

24 Fed.R.Serv.3d 384, Prod.Liab.Rep. (CCH) P 13,347

Joanne KOTLER, Individually and as Administratrix, etc Plaintiff, Appellant, v. The AMERICAN TOBACCO COMPANY, et al., Defendants, Appellees.

Nos. 90-1297, 90-1400.

United States Court of Appeals First Circuit.

Submitted Nov. 3, 1992.

Decided Dec. 4, 1992.

Michael J. Traft, Diana Lumsden, Garry Van Inge, Eric Nissen, Carney & Bassil, and Nissen & Lumsden, Boston, Mass., on memoranda, for plaintiff, appellant.

Andrew F. Lane, Boston, Mass., Thomas E. Bezanson, Bruce G. Sheffler, Mary T. Yelenick, Warner & Stackpole, Boston, Mass., and Chadbourne & Parke, New York City, on memoranda for defendant, appellee American Tobacco Co.

Samuel Adams, Joseph J. Leghorn, Boston, Mass., James V. Kearney, New York City, Warner & Stackpole, Boston, Mass., and Mudge Rose Guthrie Alexander & Ferdon, New York City, on memoranda for defendant, appellee Liggett Group Inc.

Marshall Simonds, Thomas J. Griffin, Jr., Paul E. Nemser, Boston, Mass., Thomas E. Silfen, Washington, D.C., Goodwin, Proctor & Hoar, Boston, Mass., and Arnold & Porter, Washington, D.C., on memoranda for defendant, appellee, Philip Morris, Inc.

Before SELYA, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

SELYA, Circuit Judge.

This opinion promises to be the final trek in a long safari of a case. At journey's end, we reaffirm our earlier judgment, see Kotler v. American Tobacco Co., 926 F.2d 1217 (1st Cir.1990) [Kotler III ], and dismiss the vestiges of plaintiff's two appeals.

I. BACKGROUND

Our prior opinion memorializes much of this case's convoluted procedural history. See id. at 1219-20. We merely summarize and update here, highlighting the events that bear on the residuum of the litigation.

Plaintiff-appellant Joanne Kotler sued three cigarette manufacturers, American Tobacco Company (ATC), Philip Morris, Inc. (PMI), and Liggett Group Inc. (Liggett), in federal district court to recover damages for her husband's death from lung cancer. Plaintiff's claims fell into four general categories: negligence, misrepresentation, breach of warranty based on failure to warn, and breach of warranty based on design defects. During pretrial proceedings, the district court put to rest everything except plaintiff's pre-1966 claims against ATC for breach of warranty (failure to warn) and negligence. See Kotler v. American Tobacco Co., 685 F.Supp. 15, 18-20 (D.Mass.1988) [Kotler I ]; Kotler v. American Tobacco Co., 731 F.Supp. 50, 52-57 (D.Mass.1990) [Kotler II ]. ¹ Those claims went to trial. The lower court directed a verdict for ATC on the former claim and the jury returned a defendant's verdict on the negligence count. See Kotler III, 926 F.2d at 1220.

On appeal, we considered myriad assignments of error. These included plaintiff's challenge to the district court's May, 1988 ruling that the Federal Cigarette Labeling and Advertising Act, codified as amended, 15 U.S.C. §§ 1331-1341 (1988) [the Labeling Act], preempted her post-1965 misrepresentation claims. See Kotler I, 685 F.Supp. at 20. Inasmuch as the preemption question was clearly controlled by our earlier opinion in Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir.1987), we affirmed the district court's dismissal of these claims without deciding whether Kotler's notice of appeal adequately preserved the preemption issue for appellate review. See Kotler III, 926 F.2d at 1221-24. We did, however, express considerable skepticism about the existence of appellate jurisdiction. See id. at 1221.

Plaintiff also argued that the district court erred in failing to submit her breach of warranty (failure to warn) claim to the jury. We agreed with this assertion but determined that, under Massachusetts products liability law as explicated in Anderson v. Owens-Illinois, Inc., 799 F.2d 1 (1st Cir.1986), the error was harmless. See Kotler III, 926 F.2d at 1228-35. Hence, we affirmed the judgment.

Plaintiff petitioned for certiorari in respect to both the preemption and breach of warranty rulings. The Supreme Court withheld action on the petition pending its disposition of Cipollone v. Liggett Group, Inc., --- U.S. ----, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), a case that addressed the Labeling Act's preemptive effect. The Court decided Cipollone on June 24, 1992, and, in the process, narrowed Palmer 's sweep. Five days later, the Court vacated our judgment in the instant case and remanded "for further consideration in light of Cipollone v. Liggett Group, Inc....." See Kotler v. American Tobacco Co., --- U.S. ----, 112 S.Ct. 3019, 120 L.Ed.2d 891 (1992). Three weeks thereafter, the Massachusetts Supreme Judicial Court (SJC) issued an opinion that clarified, albeit in dicta, state breach of warranty law. See Simmons v. Monarch Machine Tool Co., 413 Mass. 205, 207 n. 3, 596 N.E.2d 318 (1992).

II. ISSUES PRESENTED

Following remand, the defendants moved to dismiss the remnants of plaintiff's appeals on jurisdictional grounds. The plaintiff opposed this motion and simultaneously asked that we go beyond the letter of the High Court's remand order to reconsider the directed verdict in light of Simmons. In this posture of the case, two threshold questions loom:

1. Did Kotler's notice of appeal addressed to PMI and Liggett (No. 90-1400) preserve the preemption issue for appellate review? ² This is, of course, the very issue which we previously left open. See Kotler III, 926 F.2d at 1221-22. Only if this question warrants an affirmative response can we reach the merits of the preemption claim. ³

2. Do sufficient grounds exist to impel us to revisit our prior affirmance of the directed verdict in ATC's favor on the breach of warranty claim (notwithstanding that to do so would require us to surpass the scope of the Supreme Court's limited remand)? Only if this question warrants an affirmative response can we rework the decisional calculus in light of the SJC's statements in Simmons.

III. THE PREEMPTION ISSUE

PMI and Liggett argue that the preemption issue is not properly before us because plaintiff failed to direct her notice of appeal to the district court's May, 1988 order.

A

This point is governed by Fed.R.App.P. 3(c), which requires, inter alia, that a notice of appeal "designate the judgment, order or part thereof appealed from." The rule's commands are jurisdictional and mandatory. See Smith v. Barry, --- U.S. ----, ----, 112 S.Ct. 678, 682, 116 L.Ed.2d 678 (1992); Torres v. Oakland Scavenger Co., 487 U.S. 312, 315-16, 108 S.Ct. 2405, 2407-08, 101 L.Ed.2d 285 (1988). Its dictates, however, should be construed liberally. See Smith, --- U.S. at ----, 112 S.Ct. at 682; Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 228-30, 9 L.Ed.2d 222 (1962). Noncompliance with "mere technicalities" will not defeat appellate jurisdiction. Foman, 371 U.S. at 181, 83 S.Ct. at 230. Rather, an appeal survives so long as the litigant's filing "is the functional equivalent of what the rule requires." Torres, 487 U.S. at 317, 108 S.Ct. at 2409.

In deciding whether a notice of appeal confers appellate jurisdiction over a specific issue, we are cognizant that "the notice afforded by a document, not the litigant's motivation in filing it, determines the document's sufficiency as a notice of appeal." Smith, --- U.S. at ----, 112 S.Ct. at 682. Accordingly, we examine the notice of appeal addressed to PMI and Liggett, see supra note 2, in order to ascertain whether plaintiff sufficiently manifested an intention to appeal the May, 1988 preemption order, or stated another way, whether the notice adequately apprised the defendants of such an intention. See id. (stating that "a notice of appeal must specifically indicate the litigant's intent to seek appellate review"); Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir.1991) (similar); see also Foman, 371 U.S. at 181, 83 S.Ct. at 229 (deciding that petitioner's intention to appeal a particular order "was manifest"). However, we do not examine the notice in a vacuum but in the context of the record as a whole. See FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, ---- n. 6, 111 S.Ct. 648, 653 n. 6, 112 L.Ed.2d 743 (1991) (noting that compliance with Rule 3(c)'s judgment-designation requirement is to be scrutinized " 'in light of all the circumstances' ") (quoting Torres, 487 U.S. at 316, 108 S.Ct. at 2408); Foman, 371 U.S. at 181, 83 S.Ct. at 229 (considering the entire appellate record); Kelly v. United States, 789 F.2d 94, 96 (1st Cir.1986) (similar); see also Kotler III, 926 F.2d at 1221 (observing that the court of appeals is "not limited to the four corners of the notices [of appeal], but may examine them in the context of the record as a whole").

B

Upon careful perscrutation of the total record, we are persuaded that plaintiff failed to satisfy the requirements of Appellate Rule 3(c). The body of the relevant notice of appeal is reproduced in the appendix. It makes no reference to the district court's May, 1988 dismissal of plaintiff's failure to warn and negligent misrepresentation claims on preemption grounds. Instead, it specifically references the district court's entirely separate order of November 21, 1989, granting summary judgment on certain design defect claims. Omitting the preemption order while, at the same time, designating a completely separate and independent order loudly proclaims plaintiff's intention not to appeal from the former order. See, e.g., Mariani-Giron, 945 F.2d at 3; Pope v. MCI Telecommunications Corp., 937 F.2d 258, 266-67 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1956, 118 L.Ed.2d 558 (1992); Chaka v. Lane, 894 F.2d 923, 925 (7th Cir.1990); Spound v. Mohasco Indus., Inc., 534 F.2d 404, 410 (1st Cir.), cert. denied, 429 U.S. 886, 97 S.Ct. 238, 50 L.Ed.2d 167 (1976). As an ancient maxim teaches, "expressio unius est exclusio alterius." PMI and Liggett were entitled to rely on the plain language and apparent purport of the notice appellan...