Rivera v. Philip Morris, Inc.

• Decision Date: 04 June 2009
• Docket Number: No. 49396.,49396.
• Parties: Joe RIVERA, Individually and as Guardian Ad Litem for Joseph Rivera, V, and Jenica Rivera, Minors, and Joe Rivera as Special Administrator to the Estate of Pamela Rivera, Appellants, v. PHILIP MORRIS, INCORPORATED, a Virginia Corporation, Respondent.
• Court: Nevada Supreme Court

209 P.3d 271

Joe RIVERA, Individually and as Guardian Ad Litem for Joseph Rivera, V, and Jenica Rivera, Minors, and Joe Rivera as Special Administrator to the Estate of Pamela Rivera, Appellants, v. PHILIP MORRIS, INCORPORATED, a Virginia Corporation, Respondent.

No. 49396.

Supreme Court of Nevada.

June 4, 2009.

Certified question, pursuant to NRAP 5, regarding whether Nevada law recognizes a heeding presumption in strict product liability failure-to-warn cases. United States District Court, District of Nevada; David A. Ezra, Judge.¹

Gillock, Markley & Killebrew, PC, and Gerald I. Gillock, Las Vegas; Johnson Flora, PLLC, and Mark A. Johnson, Seattle, WA, for Appellants.

Jones Vargas and Clark V. Vellis and John P. Desmond, Reno; Munger, Tolles & Olson, LLP, and Gregory Stone, Los Angeles, CA; Shook, Hardy & Bacon, LLP, and Craig Proctor and William A. Yoder, Kansas City, MO, for Respondent.

Before the Court En Banc.²

OPINION

By the Court, SAITTA, J.

The United States District Court, District of Nevada, has certified the question of whether Nevada law recognizes a heeding presumption in strict product liability failure-to-warn cases. A heeding presumption is a rebuttable presumption that allows a fact-finder to presume that the injured plaintiff would have heeded an adequate warning if one had been given. Thus, it shifts the burden of proving the element of causation from the plaintiff to the manufacturer. We exercise our discretion to answer this question and conclude that Nevada law does not recognize a heeding presumption.

In Nevada, it is well-established law that in strict product liability failure-to-warn cases, the plaintiff bears the burden of production and must prove, among other elements, that the inadequate warning caused his injuries. Because a heeding presumption shifts the burden of proving causation from the plaintiff to the manufacturer, it is contrary to Nevada law. Rather than demanding that the plaintiff prove that the inadequate warning caused his injuries, a heeding presumption requires the manufacturer to rebut the presumption that the plaintiff would have heeded an adequate warning by demonstrating that a different warning would not have changed the plaintiff's actions. While other jurisdictions have permitted this shifting of the burden of production, we are unwilling to do so.

FACTS AND PROCEDURAL HISTORY

Appellant Joe Rivera brought a wrongful death suit against respondent Philip Morris, Inc., on behalf of the estate and family of his wife, Pamela Rivera. Pamela began smoking in 1969, before the federal government required cigarette labels to include warnings that specifically addressed the health risks of smoking, including its causing lung cancer. Rather, from 1966 until 1985, cigarette labels warned only of general health risks. Beginning in 1985, the warnings were required to be more explicit, expressly warning of smoking's connection to lung cancer, heart disease, and emphysema, as well as the risks of smoking during pregnancy. Pamela smoked until she died in 1999 of brain cancer, which her estate alleges was caused by lung cancer.

Rivera filed a complaint for damages against Philip Morris in the state district court, which Philip Morris removed to the federal district court. Rivera's initial complaint set forth strict product liability and fraud claims. Rivera based the strict product liability claim on his contention that, by producing and selling cigarettes, Philip Morris breached its duty to Pamela not to manufacture and sell a product that was defective and unreasonably dangerous to her. By selling a defective and unreasonably dangerous product to Pamela, Rivera claimed that Philip Morris caused her death. The federal district court granted summary judgment on all claims in favor of Philip Morris on the grounds that the strict liability claim was preempted by the Federal Cigarette Labeling and Advertising Act of 1965, and that the fraud claims were either preempted by the same Act or, alternatively, that there was a lack of evidence that Pamela would have stopped smoking if Philip Morris had disclosed material information regarding the health effects of smoking. Rivera appealed to the United States Court of Appeals for the Ninth Circuit.

In Rivera v. Philip Morris, Inc., 395 F.3d 1142 (9th Cir.2005), the Ninth Circuit affirmed summary judgment on the fraud claims but reversed the district court on the strict product liability failure-to-warn claim. Id. at 1154-55. The Ninth Circuit first determined that none of Rivera's claims were preempted by federal law. Id. at 1146-50. The court decided that summary judgment was inappropriate on the strict product liability claim because the question of whether it was common knowledge when Pamela began smoking in 1969 that cigarette smoking caused lung cancer was a question of fact for a jury to decide. Id. at 1153. Further, the Ninth Circuit concluded that summary judgment was also inappropriate because whether a typical consumer in 1969 knew that cigarettes were addictive was also a question of fact for a jury. Id. at 1153-54. Accordingly, the Ninth Circuit affirmed in part and remanded the case for further proceedings solely on Rivera's strict product liability failure-to-warn claim. Id. at 1155.

On remand, Rivera filed a motion for partial summary judgment, asking the federal district court to recognize, as fact, certain assertions. Philip Morris filed a cross-motion for summary judgment on the strict product liability failure-to-warn claim. Philip Morris argued that Rivera could not prove that the alleged failure-to-warn caused Pamela's injuries because the record was void of any evidence that Pamela would have acted differently had Philip Morris provided additional information or warnings. In opposition, Rivera argued that the federal district court should apply a heeding presumption.

After the hearing on the parties' motions, the federal district court entered an order that granted, in part, Rivera's motion for partial summary judgment, by recognizing that Philip Morris cigarettes have been and are addictive and that they have caused and do cause cancer. The order also denied Philip Morris' motion for summary judgment, finding that Philip Morris had failed to overcome the presumption that Pamela would have heeded additional information and warnings had Philip Morris provided them.

Philip Morris moved for clarification and reconsideration of the federal district court's decision and for certification, pursuant to NRAP 5, of whether Nevada law recognizes a heeding presumption in strict liability failure-to-warn cases. The federal district court denied Philip Morris' motions. The parties then joined in a motion to certify the heeding presumption question to this court, which the federal district court granted.

DISCUSSION

NRAP 5 certification is appropriate

At the outset, we address the threshold issue of whether the certified question should be answered by this court. Pursuant to NRAP 5, this court has the discretion to answer questions certified by a federal court. To decide whether to exercise that discretion, this court looks at whether "(1) the certified question's answer may be determinative of part of the federal case, (2) controlling Nevada precedent exists, and (3) the answer will help settle important questions of law." Federal Ins. v. Am. Hardware Mut. Ins., 124 Nev. ___, ___, 184 P.3d 390, 392 (2008).

Whether Nevada law recognizes a heeding presumption is a matter of first impression. Our answer will determine whether plaintiffs in strict product liability failure-to-warn cases will continue to bear the burden of proving causation throughout the entire case or whether that burden will first shift to the manufacturers who must rebut it. In this case, our answer may also be determinative of the federal case. If this court declines to adopt a heeding presumption, it is unlikely that Rivera can prove causation because the only evidence he has presented that Pamela would have heeded a more specific warning is speculative and, therefore, likely inadmissible. Accordingly, we answer the certified question.

Nevada law and public policy do not support a heeding presumption

Nevada law

In Nevada, when bringing a strict product liability failure-to-warn case, the plaintiff carries the burden of proving, in part, that the inadequate warning caused his injuries. Sims v. General Telephone & Electronics, 107 Nev. 516, 524, 815 P.2d 151, 156 (1991), overruled on other grounds by Tucker v. Action Equip. and Scaffold Co., 113 Nev. 1349, 1356 n. 4, 951 P.2d 1027, 1031 n. 4 (1997), overruled on other grounds by Richards v. Republic Silver State Disposal, 122 Nev. 1213, 148 P.3d 684 (2006). Rivera admits that a heeding presumption would shift this burden from the plaintiff to the manufacturer, but argues that a heeding presumption is concordant with Nevada law because it is a rebuttable presumption that initially shifts the burden of proving causation to the manufacturer but shifts the burden back to the plaintiff upon the manufacturer rebutting the claim. We reject Rivera's argument. Instead, we conclude that shifting the burden of proving causation to the manufacturer in a strict product liability case, even if it is a temporary shift, is contrary to this state's law, as well as public policy.

At the outset, we note that cases are governed, in part, by evidentiary burdens and determining which party carries these burdens. The determination of which party caries a burden is critical because it can impact the outcome of a case. The term "burden of proof" is an umbrella phrase that describes two related, but separate, burdens. See Northwest Pipeline Corp. v. Adams County, 132 Wash.App. 470, 131 P.3d 958, 960 (2006). First, there is the burden of production. The party that carries the burden of production must establish a prima facie case. See Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 107 Cal.Rptr.2d 841, 24...