Rivera v. Philip Morris, Inc.

Decision Date28 January 2005
Docket NumberNo. 03-16100.,03-16100.
Citation395 F.3d 1142
PartiesJoe 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, Plaintiff-Appellant, v. PHILIP MORRIS, INC., a Virginia corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Mark Johnson, Esq. and Sims Weymuller, Esq., Johnson-Flora, PLLC, Seattle, WA, for the plaintiff-appellant.

John P. Desmond, Esq., Jones Vargas, Reno, NV, Daniel P. Collins, Esq., Munger Tolles & Olson, Los Angeles, CA, for the defendant-appellee.

Appeal from the United States District Court for the District of Nevada; James C. Mahan, District Judge, Presiding. D.C. No. CV-01-00601-JCM.

Before: FARRIS, D.W. NELSON, and GOULD, Circuit Judges.

FARRIS, Senior Circuit Judge.

Joe Rivera brought a wrongful death action against Philip Morris Inc., a tobacco manufacturer, asserting state law claims for strict product liability, fraud, and conspiracy. Summary judgment in favor of Philip Morris was granted. We affirm in part and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts

Joe Rivera initiated this action individually, as Guardian ad Litem for his children and as executor of his deceased wife's estate. He filed suit in Nevada state court, alleging strict product liability based on theories of failure-to-warn and design-defect, fraud based on theories of both fraudulent concealment and fraudulent misrepresentation, and conspiracy. He contended that his late wife, Pamela Rivera, smoked Marlboro cigarettes manufactured by Philip Morris beginning in the summer of 1969 until her death from lung cancer in 1999.

B. District Court Proceedings

This action was timely and properly removed from state to federal court under diversity jurisdiction. The district court subsequently granted summary judgment in favor of Philip Morris, on grounds that (1) the strict product liability claim was preempted by the Federal Cigarette Labeling and Advertising Act of 1965, 15 U.S.C. §§ 1331 et seq., or alternatively, as a matter of law, the claim failed under Nevada's common knowledge test; (2) the fraudulent concealment claim was preempted by the same federal statute, or alternatively, evidence was lacking that the decedent would have acted differently if Philip Morris had disclosed material information concerning the health effects of smoking; (3) the fraud claim was not preempted under federal law but evidence was absent that the decedent saw, heard, or read and relied upon any misrepresentation by Philip Morris; and (4) the conspiracy claim necessarily failed because it was a derivative of other underlying claims. Rivera does not appeal the dismissal of his strict liability design-defect claim. He has not presented any argument with regard to the dismissal of his conspiracy claim and has therefore waived that issue on appeal.

II. DISCUSSION
A. Standard of Review

We review a grant of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party. Lindsey v. Tacoma-Pierce County Health Dep't, 195 F.3d 1065, 1068 (9th Cir.1999). A grant of summary judgment is appropriate only where the moving party has demonstrated that there is no genuine issue of material fact. Id. Material facts are those which might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine if a reasonable trier of fact could find in favor of the nonmoving party. Id. Once the moving party demonstrates the absence of a genuine issue of material fact, the nonmoving party that bears the ultimate burden at trial must show that there is evidence creating a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A mere scintilla of evidence supporting the non-moving party's position is insufficient; there must be evidence on which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

B. Federal Preemption

As a threshold issue, we first determine whether any of Rivera's state law claims are preempted by federal law. Under the Supremacy Clause of the United States Constitution, Congress may preempt state common law as well as state statutory law through federal legislation. U.S. CONST. art. VI. § 2; Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 325-27, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981). The district court concluded that Rivera's strict liability and fraudulent concealment claims were preempted by the Federal Cigarette Labeling and Advertising Act of 1965, as amended by the Public Health Cigarette Smoking Act of 1969, because both claims necessarily attacked the sufficiency of federally-mandated cigarette health warnings.

In 1965, Congress enacted the Federal Cigarette Labeling and Advertising Act, which required all cigarette packages to contain a warning that smoking was hazardous. The purpose of the Labeling Act was to adequately inform the public of the dangers associated with smoking cigarettes and to protect the national economy from the burden imposed by diverse, non-uniform, and confusing cigarette labeling and advertising regulations. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 514, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). A few years later, Congress passed the Public Health Cigarette Smoking Act of 1969, which amended the Labeling Act by including a preemption clause that states: "No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the 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(b).

In Cipollone, the Supreme Court addressed preemption as applied to several state common law claims against cigarette manufacturers. In interpreting the preemption provision, a four-member plurality of the Court found that the Labeling Act's broad language preempted some, but not all, common law claims. Cipollone, 505 U.S. at 520-21, 112 S.Ct. 2608. To determine whether a particular common law claim fell within the express preemption clause, the plurality performed the following "central inquiry": "we ask whether the legal duty that is the predicate of the common-law damages action constitutes a `requirement or prohibition based on smoking and health ... imposed under State law with respect to ... advertising or promotion,' giving that clause a fair but narrow reading." Id. at 523-24, 112 S.Ct. 2608. Applying this test, four Justices agreed that the Labeling Act preempted the petitioner's failure-to-warn claims "insofar as claims under ... [a] failure-to-warn theory require a showing that... post-1969 advertising or promotions should have included additional, or more clearly stated, warnings...." Id.

As to the claims before us, a majority of the Court, including two dissenting Justices, agreed that failure-to-warn claims based on allegations that post-1969 advertising or promotional materials should have included additional, or more clearly stated, warnings are preempted by the Labeling Act. However, a plurality of the Court found that certain claims were not preempted, including (1) failure-to-warn claims based solely on negligent testing, research practices, or other actions unrelated to advertising or promotion, (2) fraudulent concealment claims based on a state-law duty to disclose material facts through channels other than advertising or promotion (e.g., state agency), (3) misrepresentation claims based on false statements of material fact made in advertising, and (4) conspiracy to misrepresent material facts, provided a claim for misrepresentation can be maintained.

(1) Strict Liability Failure-to-Warn Claim

The plaintiff advances two arguments to save his strict liability claim from the preemptive effect of the Labeling Act's Section 1334(b) and the Supreme Court's holding in Cipollone: (1) that Cipollone is not binding authority and may be disregarded by this Court, and (2) even if Cipollone is binding, his failure-to-warn claim still survives because it is not based on "advertising or promotion."

Although courts are not bound to follow the preemption test adopted by the four-Justice plurality opinion, other federal courts of appeal have applied the holding in Cipollone as binding precedent. See, e.g., Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183 (11th Cir.2004); Glassner v. R.J. Reynolds Tobacco Co., 223 F.3d 343 (6th Cir.2000); Philip Morris, Inc. v. Harshbarger, 122 F.3d 58 (1st Cir.1997); Michael v. Shiley, Inc., 46 F.3d 1316 (3d Cir.1995), overruled on other grounds, Medtronic, Inc. v. Lohr, 518 U.S. 470, 492, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); MacDonald v. Monsanto Co., 27 F.3d 1021 (5th Cir.1994). Additionally, we have repeatedly relied upon Cipollone in our jurisprudence. See, e.g., Lindsey, 195 F.3d at 1069 (interpreting and relying upon Cipollone in holding a ban on outdoor tobacco advertising preempted); Harris v. Ford Motor Co., 110 F.3d 1410, 1413 (9th Cir.1997) (relied on plurality opinion in Cipollone in determining that product liability claim was preempted); Taylor AG Indus. v. Pure-Gro, 54 F.3d 555, 560 (9th Cir.1995) (recognizing that "[w]e look to Cipollone for guidance in order to determine whether Appellants' failure to warn claim is preempted").

Looking to Cipollone for guidance we must conclude that Rivera's failure-to-warn claim is not preempted by the Labeling Act. A claim is expressly preempted if the predicate duty underlying the claim constitutes: (1) a requirement or prohibition, (2) based on smoking and health, (3) imposed under state law, (4) with respect to the advertising or promotion of cigarettes. Cipollone, 505 U.S. at...

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