Prado Alvarez v. R.J. Reynolds Tobacco Co., Inc

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Coffin
• Citation: Prado Alvarez v. R.J. Reynolds Tobacco Co., Inc, 405 F.3d 36 (1st Cir. 2005)
• Decision Date: 21 April 2005
• Docket Number: No. 04-1695.,04-1695.
• Parties: Virginia PRADO ALVAREZ; Mayra Janette Garcia Prado; Edgardo Garcia Prado; Orlando Garcia Prado; Ivellise Garcia Prado; Francisco Garcia Prado; Javier Garcia Prado; Carmen Rosa Adorno; Joham Garcia Adorno, Plaintiffs, Appellants, v. R.J. REYNOLDS TOBACCO COMPANY, INC., Defendant, Appellee.

405 F.3d 36

Virginia PRADO ALVAREZ; Mayra Janette Garcia Prado; Edgardo Garcia Prado; Orlando Garcia Prado; Ivellise Garcia Prado; Francisco Garcia Prado; Javier Garcia Prado; Carmen Rosa Adorno; Joham Garcia Adorno, Plaintiffs, Appellants, v. R.J. REYNOLDS TOBACCO COMPANY, INC., Defendant, Appellee.

No. 04-1695.

United States Court of Appeals, First Circuit.

Heard March 10, 2005.

Decided April 21, 2005.

Herbert Muriel with whom Amarilys Arocho-Maldonado was on brief for appellants.

Robert H. Klonoff with whom Paul R. Reichert, Jones Day, Salvador Antonetti Zequeira, Luis A. Oliver, Rosalie Irizarry Silvestri, and Fiddler, Gonzalez & Rodriguez, P.S.C. were on brief for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.

COFFIN, Senior Circuit Judge.

Francisco Garcia Lopez began smoking in 1960, at age 25, and continued the habit for the next 42 years, ultimately smoking three packs of Winston cigarettes each day. He died in October 2002, three months after being diagnosed with lung cancer. His surviving family members brought this diversity action against the cigarette manufacturer, R.J. Reynolds Tobacco Co., claiming that smoking was a substantial factor in his illness and death. Plaintiffs sought to recover damages based on a variety of tort and other Commonwealth law theories, including failure to warn and defective design. The district court dismissed a failure to warn claim and granted summary judgment for defendant Reynolds on all other claims. After careful scrutiny of the record, we affirm substantially for the reasons articulated by the court.

I. Background

Decedent Garcia had only a sixth grade education and could read little Spanish and no English. Although he did not watch much television, several family members testified in depositions that he did regularly view the evening news. His wife and at least four of his children also testified that, at various points during the years Garcia smoked, they urged him to stop because of the health risks posed by cigarettes. According to the undisputed facts the parties jointly submitted to the district court, Garcia's wife and daughter had "years ago... talked about how the Decedent was smoking too much." His wife acknowledged that, when she first saw him smoking, she warned him that it could be bad for his health.

The family reported one or two attempts by Garcia to stop smoking by using nicotine gum as a substitute. His son, Javier Garcia Prado, testified that he gave his father one pack of the gum, and that the attempt lasted about two days and resulted in reduced smoking during that time. A daughter, Ivellise Garcia Prado, said she bought him both nicotine gum and patches once he had developed a cough and was feeling ill; she said he used the gum and it reduced his smoking "a little," but he refused to use the patches. Another daughter, Mayra Janette Garcia Prado, testified that her father stopped using the gum given to him by her sister because "there were no results." Decedent's grandson, Joham Garcia Adorno, who lived with his grandparents, testified that his grandfather used the patches once and that he stopped smoking, but he did not remember for how long.

Another son, Edgardo Garcia Prado, also noted his father's use of the nicotine gum, but said that he never completely stopped smoking. Edgardo testified that he "would tell [his father] to stop smoking every day and he would pay no attention." Still another son, Orlando, testified that, when family members or friends would tell his father that smoking was harmful, he would say "that we all have to die some time from something.... He always had the same answer." Decedent's brother, Demetrio Garcia Lopez, testified that he had been telling his brother that smoking was harmful since about 1970. Demetrio said he did not know his brother's perception of the health risks of smoking, noting, "[t]he thing is that he would not pay any attention to anybody, so it just didn't matter to him."

Garcia's wife, Virginia Prado Alvarez, testified that, in May 2002, her husband stopped smoking because the price of cigarettes increased,¹ and he could no longer afford to buy them. He became bedridden, and, according to his wife, "[h]e was feeling very sick because he wasn't smoking." He was experiencing both abdominal pain and a dry cough, and medical tests ultimately revealed a right upper lung mass that was diagnosed as inoperable cancer. He deteriorated rapidly and died in October 2002 at the age of 68.

Appellants filed suit in June 2003, claiming that Garcia's illness and death were caused by his smoking Winston cigarettes, which are manufactured by appellee R.J. Reynolds. They alleged negligence and strict liability claims under Puerto Rico law for failure to warn and design defect, claims for fraudulent misrepresentation and concealment, and a claim for violation of Article 189 of the Puerto Rico Penal Code, 33 P.R. Laws Ann. § 4307, which prohibits "[f]raud in [the] delivery of [a] thing."

The district court dismissed the post-1969 failure-to-warn claims based on preemption by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1341, and it subsequently granted summary judgment on the remaining claims. The court concluded that plaintiffs had failed to establish that ordinary consumers were unaware of the health risks of cigarette smoking during the relevant time period, undermining both the design defect and the pre-1969 failure-to-warn claims. The court further ruled that plaintiffs failed to adduce evidence of a design defect or to offer evidence that the decedent's injuries were proximately caused by Reynolds' failure to warn. The court rejected the fraud claims, inter alia, for lack of evidence of false statements heard or reasonably relied on by decedent, and it concluded that the Article 189 claim suffered from dispositive deficiencies.

On appeal, appellants challenge each of the district court's summary judgment rulings.²

II. Discussion

We review the district court's grant of summary judgment de novo. Cruz Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271, 280 (1st Cir.2003). Although we draw all reasonable inferences in favor of the nonmoving party, id., that party must respond to a properly supported motion with sufficient evidence to allow a reasonable jury to find in its favor "with respect to each issue on which [it] has the burden of proof," DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997). See also Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir.2002). With that standard in mind, we turn to our examination of appellants' claims.

A. The Role of Common Knowledge

As the district court observed, appellants may not prevail on either the common law failure to warn or the design defect claims unless they can show that the ordinary consumer was unaware of the dangers of smoking. See Cruz-Vargas, 348 F.3d at 275 ("[A] manufacturer cannot be held liable under either strict liability or negligence for failure to warn of a danger commonly known to the public."); Aponte Rivera v. Sears Roebuck, 44 P.R. Offic. Trans. 1, 7, 144 D.P.R. 830 (1998) ("[A] manufacturer need not warn of a hazard if the average consumer ordinarily has knowledge of the dangers of the product."); Aponte Rivera, 44 P.R. Offic. Trans. at 6, 144 D.P.R. 830 (citing § 402A of the Restatement (Second) of Torts, comment i, which states that a product is defective only if it is "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").

Both parties sought to establish their position on common knowledge through expert evidence, but Reynolds filed a motion to exclude the testimony of plaintiffs' proposed expert, Marly Ferrer Montalvo, claiming inter alia, that she lacked the requisite education and experience to qualify as an expert. Although the district court did not explicitly rule on this motion, it did not refer to Ferrer's report in its summary judgment decision, relying entirely on the common knowledge conclusions of Reynolds' expert, Luis Martinez-Fernandez. The court's silence seems to us to imply rejection of plaintiffs' expert evidence, a ruling that would be subject to review only for abuse of discretion. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Currier v. United Techs. Corp., 393 F.3d 246, 251 (1st Cir.2004). In any event, as we shall explain, even under de novo review we would conclude that Ferrer's presentation is inadequate, particularly in light of Martinez' detailed affidavit, to permit a jury to find for plaintiffs on the issue of common knowledge.

In Cruz-Vargas, we observed that the "common knowledge" defense is assessed objectively and, "despite the nomenclature, it is a technical question involving methods, financing, and sources of research beyond the competence of lay determination, at least when pertaining to history forty or fifty years removed from the time of trial." 348 F.3d at 277. In performing its gatekeeping function in assessing proffered expert evidence, a court must consider "whether the putative expert is `qualified by "knowledge, skill, experience, training, or education."'" Ed Peters Jewelry Co. v. C & J Jewelry Co., 124 F.3d 252, 259 (1st Cir.1997); see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ("relaxation of the usual requirement of first-hand knowledge ... is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline"); Poulis-Minott v. Smith, 388 F.3d 354, 359-60 (1st Cir.2004); Fed.R.Evid. 702. Ferrer's qualifications to serve as an expert were marginal, at best.

At the time of her report,...