Leggett Group, Inc. v. Davis

Decision Date10 October 2007
Docket NumberNo. 4004-3811.,4004-3811.
Citation973 So.2d 467
PartiesLIGGETT GROUP, INC., Appellant, v. Beverly DAVIS, Appellee.
CourtFlorida District Court of Appeals

Denise B. Crockett and Alvin B. Davis, P.A., of Steel Hector & Davis, LLP, and Kelly A. Luther of Clarke Silverglate Campbell Williams & Montgomery, Miami, for appellant.

John F. Venable of Venable & Venable, P.A., Brooksville, and Angel M. Reyes and Daniel F. O'Shea of Reyes & O'Shea, P.A., Miami, for appellee.


Appellant, Liggett Group, Inc., appeals a jury verdict in favor of appellee, Beverly Davis,1 with respect to two legal theories: negligence and defective design of the cigarettes causing Davis' harm, lung cancer.2 The jury awarded damages in excess of $500,000 to Davis. Liggett appeals the jury's findings claiming first, federal preemption and second, that in spite of the two-issue interrogatory submitted to the jury on the second of Davis' verdicts, there was no evidence of an alternative safer design applicable to both theories which would have reduced or prevented Davis' injuries; thus, the trial court should have granted Liggett's motion for directed verdict. This error, Liggett claims, was compounded by erroneous instructions on the strict liability claim.

The first question raised is whether the trial court erred in permitting the jury to consider a "continuing to manufacture cigarettes" claim. We answer the question in the affirmative.

As to the second question, we hold that the trial court did not err in refusing to grant a directed verdict on Davis' strict liability design defect claim; and next, that there was no error in the"jury instructions on Davis' strict liability design defect claim.

Because the jury's verdict of damages may be sustained on the strict liability claim, we affirm.


Beverly Davis sued Liggett Group, Inc., for injuries she suffered as a result of smoking Chesterfield cigarettes, manufactured by Liggett, from 1951 to 1974. In 2001, Davis was diagnosed with lung cancer. Though she had continued, to smoke cigarettes after 1974, she had switched to a brand manufactured by another company. The jury awarded Davis over $500,000 finding in her favor on two of her claims, the "negligent continuing to manufacture" claim and the "strict liability defective design" claim.

The trial court instructed the jury that there were two distinct claims presented: negligence and product liability. In charging the jury on the negligence claim, the relevant part of the jury instruction told the jury that they should determine whether Liggett "was negligent in doing or failing to do one or more of the following," one of which was "continuing to manufacture Chesterfield cigarettes when it became known to [Liggett] that such cigarettes posed significant risk to the health of smokers of such cigarettes."

As to the strict liability claim, the trial court instructed the jury they must determine "whether the Chesterfield cigarettes manufactured by [Liggett] were defective when they left [Liggett's] possession;" and if so, whether the defect was the legal cause of the damage. The trial court further explained, "[a] product is unreasonably dangerous because of its design if the product fails to perform as safely as an ordinary consumer would expect, when used as intended or in a manner reasonably foreseeable by the manufacture, or the risk in the design outweighs the benefits." Liggett did not object to the this issue verdict form. Liggett did request a special jury instruction which the court refused to give.


Liggett argues that by allowing the jury to consider a negligence claim based merely on its continuing to manufacture cigarettes, the trial court violated federal conflict preemption, claiming Congress has rejected a ban on cigarette products and foreclosed the removal of cigarettes from the market. Liggett further argues that such a claim circumvented the elements of Florida products liability law. Davis responds that her negligence claim was not preempted and is a legally viable negligence claim.


Liggett claims that the trial court should have granted a directed verdict on the defective design claim because Davis did not prove that the cigarettes manufactured by Liggett were dangerous beyond that contemplated by the ordinary consumer; nor, Liggett claims, did Davis prove that an alternative design would have allowed her to avoid her injury. Davis responds that where the jury was instructed as to both the ordinary consumer test and the risk utility test and a general verdict form was used, reversal is not warranted under the "two issue rule." In addition, Davis argues that should this court decide to review this issue despite the "two issue rule," the trial court did not err in refusing to grant the directed verdict as to this claim. Finally, Davis claims, the court did not err in refusing to give a jury instruction as requested by Liggett because the instruction was not a correct statement of the law.


This court reviews a trial court's decision on a motion for directed verdict using the de novo standard. See Flagstar Cos. v. Cole-Ehlinger, 909 So.2d 320, 322 (Fla. 4th DCA 2005). "A motion for directed verdict should be granted when there is no evidence or reasonable inferences upon which a jury could legally predicate a verdict in favor of the nonmoving party." Wallent v. Fla. Power Corp., 852 So.2d 339, 342 (Fla. 2d DCA 2003).


Appellant argues that the trial court erred in allowing the jury to consider the continuing to manufacture claim relying primarily on Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000), for the proposition that Congress intends to keep cigarettes on the market and, therefore, to make the manufacture of cigarettes tortious conflicts with federal law. Appellant asserts that his position was recognized by the third district in Liggett Group Inc. v. Engle, 853 So.2d 434, 460 (Fla. 3d DCA 2003), reversed by Engle v. Liggett Group Inc., 945 So.2d 1246 (Fla.2006).

The doctrine of conflict preemption prevents state laws which conflict with federal statutes from being applied. De Jesus Rivera v. R.J. Reynolds Tobacco Co., 368 F.Supp.2d 148, 154 (D.Puerto Rico 2005) (citing FDA, 529 U.S. at 121, 120 S.Ct. 1291). Conflict preemption occurs where "a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively or when state law is in actual conflict with federal law." Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995) (internal citation omitted). Conflict preemption turns on the identification of "actual conflict and not an express statement of preemptive intent." Geier v. Am. Honda Motor Co., 529 U.S. 861, 884, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). "If Congress gives express sanction to an activity, the states cannot declare that activity tortious." Insolia v. Philip Morris Inc., 128 F.Supp.2d 1220, 1224 (W.D.Wis.2000) (citing Geier, 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914).

"Congress has foreclosed the removal of tobacco products from the market." De Jesus Rivera, 368 F.Supp.2d at 154 (citing Prado Alvarez v. R.J. Reynolds Tobacco Co., 313 F.Supp.2d 61, 72 (D.Puer to Rico 2004)). Insolia stands for the proposition that Congress' considered decision that sale of cigarettes was not only not illegal but part of the market that the government supported, preempted a state negligence claim against tobacco manufacturers based on their continuing to manufacture and sell cigarettes once they realized the danger that cigarettes posed, even though no statute or regulation explicitly preempts such claims. Such is the very claim in the case at hand.

Appellee argues that appellant has ignored Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). In that case, the Supreme Court addressed the issue of preemption and whether state law common law actions for failure to warn, breach of express warranty, fraudulent misrepresentation, and conspiracy to misrepresent or conceal material facts were preempted. Cipollone, 505 U.S. at 524-30, 112 S.Ct. 2608. Even though none of the opinions in Cipollone acquired a majority, the plurality has been treated as a majority opinion and the test articulated therein is "... whether the legal duty is the predicate of the commonlaw damages action constitutes a `requirement or prohibition based on smoking and health ... imposed under State law with respect to ... advertising or promotion.'" Id. at 523-24, 112 S.Ct. 2608. The Court therein addressed specific causes of action which are different from those dealt with here, but ultimately found that state laws which required a showing that warnings on cigarettes should have been more clearly stated, were preempted, and the state law claims based on the manufacturer's practices of testing or research unrelated to advertising were not preempted.

The Eleventh Circuit Court of Appeals in Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183 (11th Cir.2004), explained the Cipollone test stating that "under Cipollone whether a state law claim is preempted is dependent on the exact nature of that particular claim." Spain, 363 F.3d at 1193.

Our own Florida Supreme Court pointed out in Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932 (Fla.2000) that express warranty claims are not preempted because "liability for express warranty is not imposed under state law but rather by the warrantor's express actions." Carter, 778 So.2d. at 940. It would appear, therefore, that not all claims are preempted, only certain ones.

Appellant's position in this case, however, is more far-reaching than preemption and goes to the broader argument that where Congress clearly...

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