Palmer v. Liggett Group, Inc.

• Decision Date: 25 April 1986
• Docket Number: Civ. A. No. 83-2445-MA.
• Citation: 633 F. Supp. 1171
• Court: U.S. District Court — District of Massachusetts
• Parties: Ann M. PALMER, Administratrix for the Estate of Joseph C. Palmer, and Ann M. Palmer, and Daphne S. Palmer, Plaintiffs, v. LIGGETT GROUP, INC. and Liggett & Myers Tobacco, Inc., Defendants.

633 F. Supp. 1171

Ann M. PALMER, Administratrix for the Estate of Joseph C. Palmer, and Ann M. Palmer, and Daphne S. Palmer, Plaintiffs, v. LIGGETT GROUP, INC. and Liggett & Myers Tobacco, Inc., Defendants.

Civ. A. No. 83-2445-MA.

United States District Court, D. Massachusetts.

April 25, 1986.

Robert S. Potters and Daniel A. Shapiro, Nix & Potters, Boston, Mass., for plaintiffs.

Samuel Adams and Joseph Leghorn, Warner & Stackpole, Boston, Mass., Donald J. Cohn, Webster & Sheffield, New York City, for defendants.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS

MAZZONE, District Judge.

The essential background of this motion is straightforward. Joseph C. Palmer died in 1980, allegedly from lung cancer caused by his smoking L & M cigarettes since 1957. His wife, on her own behalf and as administratrix of his estate, and his mother filed this suit against the defendants, Liggett Group, Inc. and Liggett & Myers Tobacco Co., Inc., cigarette manufacturers and distributors. Plaintiffs' primary claim is that the defendants were negligent in failing to provide adequate warnings about the harmful health effects of cigarette smoking and that this negligence proximately caused Joseph Palmer's death.¹ Defendants have filed a motion to dismiss all claims based upon failure to warn adequately of the health effects of cigarette smoking on the ground that these claims are preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1341 ("the Act"). Plaintiffs have opposed this motion and both sides have submitted extensive memoranda.

I.

The principles governing the doctrine of preemption are undisputed. The Supremacy Clause, U.S. Const. Art VI, cl. 2, authorizes Congress to pass laws that preempt state law. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-11, 6 L.Ed. 23 (1824). Congress may preempt state common law as well as statutes or regulations. See, e.g., Chicago & Northwestern Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981). Congress may indicate its intent to preempt state law in several ways. First, it may include express language of preemption in the statute. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Second, Congress may "occupy a given field," thereby preempting any state law within that field. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). Congress' intent to occupy a given field can be gleaned from the pervasiveness of the federal regulatory scheme, from the dominance of the federal interest, or from the objectives of, and obligations imposed by, the federal law. Fidelity Fed. Sav. & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982). Third, "if Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress." Silkwood, 464 U.S. at 248, 104 S.Ct. at 621 (citations omitted). When a court decides whether Congress intended to displace state law, in order not to disturb unnecessarily the federal-state balance, it must begin with the presumption that Congress did not so intend. Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128, 68 L.Ed.2d 576 (1981); Jones, 430 U.S. at 525, 97 S.Ct. at 1309; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947).

II.

Other federal courts have addressed the question of whether Congress intended the Act to preempt common law claims based upon the adequacy of the warnings on cigarette packages and advertising, so I do not write on a clean slate. The Court of Appeals for the Third Circuit, reversing the New Jersey District Court, recently held that such claims were preempted by the Act because they "actually conflict" with the Act. Cipolone v. Liggett Group, Inc., 789 F.2d 181 (3rd Cir.1986). The Court of Appeals agreed with the District Court that the Act did not expressly preempt common law claims, and that it did not impliedly preempt common law claims by "occupying the field." However, it concluded that such claims actually conflict with Congress' "carefully drawn balance between the purposes of warning the public of the hazards of cigarette smoking and protecting the interests of the national economy." Id., at 187.

A district court in Tennessee concluded similarly that the Act preempts common law claims based upon the adequacy of cigarette warnings. Roysdon v. R.J. Reynolds Tobacco Co., 623 F.Supp. 1189 (E.D. Tenn.1985). It held that the Act did not expressly preempt such common law tort actions, and that the imposition of tort damages would not be inconsistent with one of the two congressional objectives: informing the public of the health hazards relating to smoking. However, it held that exposing a manufacturer to potential tort damages would be inconsistent with Congress' second purpose: insuring uniformity of labeling. Id., at 1190-91.

These opinions have provided welcome guidance on this difficult issue. However, after careful consideration of the doctrine of preemption, the Act, and the exhaustive and scholarly opinion by Judge Sarokin in Cipolone, 593 F.Supp. 1146 (D.N.J.1984), I must respectfully disagree with the views of congressional intent expressed by the Third Circuit and Eastern District of Tennessee. As is explained more fully below, I cannot conclude that Congress meant, by its silence on the issue of common law claim preemption, to do away with all means of obtaining compensation for those hurt by inadequate cigarette warnings and advertising. Having come to this conclusion, and recognizing the risk of some repetition, I am obligated to set out the analysis by which I reach that conclusion.

III.

In 1965 Congress responded to a growing concern about the adverse health effects of cigarette smoking by passing the Act, which required the following warning on each package of cigarettes: "Caution: Cigarette Smoking May Be Hazardous to Your Health." 15 U.S.C. § 1333. In 1969 Congress strengthened the required warning: "Warning: The Surgeon General Has Determined That Cigarette Smoking is Dangerous to Your Health." Id. Finally, in 1984, Congress replaced this warning with four others that are to be used on a rotational basis:

SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy.

SURGEON GENERAL'S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.

SURGEON GENERAL'S WARNING: Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight.

SURGEON GENERAL'S WARNING: Cigarette Smoke Contains Carbon Monoxide.

Id.

In fashioning the Act, Congress was cognizant of a competing concern: the economic wellbeing of the tobacco industry. In section 1331 of the Act, entitled "Congressional declaration of policy and purpose," Congress articulated these two somewhat inconsistent goals of public health and the economy. Section 1331, as amended in 1970, provides:

It is the policy of the Congress, and the purpose of this chapter, to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby —

(1) the public may be adequately informed that cigarette smoking may be hazardous to health by inclusion of a warning to that effect on each package of cigarettes; and

(2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.

15 U.S.C. § 1331.²

Congress included a preemption provision in the Act. It provides:

(a) No statement relating to smoking and health, other than the statement required by section 1331 of this title, shall be required on any cigarette package.

(b) No requirement or prohibition based on smoking and health shall be imposed under State law with respect to advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.

15 U.S.C. § 1334.

I now address each of the arguments presented by the defendants in this case.

A. Express Preemption

The defendants argue that this section expressly preempts plaintiffs' common law claims based upon the adequacy of the warning. They assert that the effect of a successful suit of this nature would be to "require" the defendants to supplement their warning labels. A successful suit would operate as an "imposition" under state law of a "requirement or prohibition" with respect to advertisements.

I disagree with the defendants and I agree with Cipollone, at 185-186, and Roysdon, at 1190, that the Act does not expressly preempt this tort action. First, there is a strong presumption against preemption. Second, section 1334 does not specifically prohibit damage suits based upon the adequacy of the warning. Congress knew how to expressly bar common law suits when it so desired. See, e.g., Domestic Housing and International Recovery and Financial Stability Act, 12 U.S.C. §§ 1715z-17(d), 1715z-18(e), Copyright Act of 1976, 17 U.S.C. § 301(a), and Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1144(a) & (c)(1). Although Congress could have included a "savings clause" in which it explicitly preserved common law actions as it did in other statutes, see, e.g., the Occupational Safety and Health Act of 1970, 29 U.S.C. § 653(b)(4), its omission of a savings clause is not as probative as its omission of a specific prohibition of common law claims because of the presumption against preemption.

Finally, it...