Rogers v. R.J. Reynolds Tobacco Co.
| Decision Date | 31 July 1990 |
| Docket Number | No. 49A02-8904-CV-164,49A02-8904-CV-164 |
| Citation | 557 N.E.2d 1045 |
| Court | Indiana Appellate Court |
| Parties | Prod.Liab.Rep. (CCH) P 12,572 Yvonne ROGERS, Individually, and as the Executrix of the Estate of Richard Rogers, Deceased, Appellants (Plaintiffs Below), v. R.J. REYNOLDS TOBACCO CO., Smith Harris, Inc., Hamilton Harris & Company, Smith Candy & Tobacco Co., Inc., Phillip Morris Incorporated, The American Tobacco Co., Inc., Liggett Group, Inc., Mi-Lo, Inc., and William D. Hamaker, d/b/a Hamaker Pharmacy, Appellees (Defendants Below). |
C. Warren Holland, Michael W. Holland, Holland & Holland, and Morris L. Klapper, Klapper & Isaac, Indianapolis, for appellants.
Stephen M. Terry, Baker & Daniels, Wayne C. Kreuscher, Barnes & Thornburg, David O. Tittle, Jon D. Krahulik, Bingham Summers Welsh & Spilman, Douglas J. Hill, Hill Fulwider McDowell Funk & Matthews, and Richard D. Wagner and James G. McIntire, Krieg DeVault Alexander & Capehart, Indianapolis, for appellees.
TABLE OF CONTENTS
FACTS ........................................................ 1047
ISSUES ....................................................... 1049
DISCUSSION ................................................... 1049
Introduction .................................... 1049
I. Strict Liability and Negligence Claims .......... 1050
A. Preemption ........................................ 1050
1. Failure to Warn ............................... 1050
2. Design Defect ................................. 1051
B. Statute of Limitations ...................... 1051
C. Open and Obvious Rule ....................... 1052
D. Sec. 402A Concept of "Unreasonably Dangerous" .. 1052
II. Fraud ........................................... 1055
III. Intentional Infliction of Emotional Distress .... 1056
IV. Punitive Damages ................................ 1056
CONCLUSION 1057
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Yvonne Rogers, individually and as Executrix of her late husband's estate, appeals an adverse grant of summary judgment on the wrongful death, loss of consortium, and intentional infliction of emotional distress claims against Defendant cigarette manufacturers and distributors (Defendants).
We affirm in part and reverse in part.
The evidence before the trial court at the summary judgment hearing was as follows: Richard Rogers, Yvonne's deceased husband, was born in 1935. He began smoking discarded cigarette butts when he was five or six years old. As a child he was prompted to smoke by seeing his father, his parents' friends, and movie heroes smoking. He also was aware of athletes promoting the use of cigarettes in advertisements. By the age of five he had heard smoking "stunts your growth." Record at 673. His high school coaches warned smoking affected breathing. Richard's father quit smoking when Richard was fifteen. His father told him he quit because he had experienced a "bad hacking fit." Record at 360.
By the sixth grade, Richard was smoking close to a pack of cigarettes a day. At the time he graduated from high school in 1953 and during the two years he was in the army, Richard smoked two packs of cigarettes a day. When he reached his mid-twenties he was smoking about three packs a day. He continued to smoke between two and three packs of cigarettes a day until June 24, 1986, when he was able to quit after receiving a short course of medical treatment consisting of hypnosis and drug therapy. Two months later Richard was diagnosed as having lung cancer.
As early as high school Richard smoked not for pleasure, but because it was a habit he could not break. By the age of twenty-one, he knew heavy smoking posed a greater health risk than moderate smoking. In 1960, when he made his first conscientious but unsuccessful attempts to quit smoking, he realized cigarettes were "more than just habit forming"; they were something he could not "get off of." Record at 671. Starting in 1970, Richard resorted several times to staying in bed all weekend as a method of quitting smoking.
[W]hat I was trying to do was take myself out of a situation where I did anything where I smoked. If I slept I didn't smoke. If I was in bed I didn't smoke. So the idea was get in bed, do nothing that would prompt you to get a cigarette. If I'd get up, I'd get a cup of coffee and light a cigarette; if I ate, I'd light a cigarette; get a newspaper, I'd light a cigarette. Everything I did was with a cigarette. So what I was hoping to do was immobilize myself for those three days. The idea was if you could go a week, maybe you could make it. I could never get that far.
Record at 720. This method proved unsuccessful for Richard; the first place he would go on the following Monday morning was to a drugstore. In his words, "I had to have that cigarette." Record at 567.
Sometime between 1960 and 1978, Richard attended a meeting sponsored by the American Cancer Society. He described the experience and his reaction to it.
A. ... [I]t was kind of like an Alcoholics Anonymous format where you'd be teamed up with somebody that you could call if you wanted to get some help, one of those things.
Q. .... Why was it that you determined that the program that they offered was not for you?
A. Because I have great willpower [sic]. I can quit smoking any time I want to. That was my thought. But I couldn't.
In 1964 Richard learned of the link between cigarette smoking and cancer from the widely-disseminated conclusion of the Surgeon General's report on Smoking and Health. 1
[T]he surgeon general was saying there was a risk of cancer, and that from the first warning, his warnings kept getting stronger and stronger. And the doctors were starting to tell you, don't smoke. Publications were telling you, don't smoke. Newspaper articles were telling you what the surgeon general was saying. He was appearing on television. Hospitals and doctors and clinics were appearing on television saying there was a danger.
I recall the initial warning coming out saying that they have discovered that cancer was caused by smoking....
I think the first word was there was a link between cigarette smoking and cancer.
....
This is not just TV reports. I mean, it's blasted. When something like that comes out, it's TV, newspapers, people by word of mouth talking about it. It's a widely discussed subject. We're not talking about one isolated newspaper. We're talking about a social concept.
Finally, Richard acknowledged the cigarettes he had purchased since the January 1, 1966 effective date of the Federal Cigarette Labeling and Advertising Act 2 bore the required warning labels.
Richard and Yvonne filed their initial complaint on March 7, 1987. Richard died on October 2, 1987. The complaint was subsequently amended to state a wrongful death claim based on the theories of strict liability, negligence and fraud. In her individual capacity, Yvonne sought damages for loss of Richard's consortium prior to his death and for the intentional infliction of emotional injury. Finally, the amended complaint contained allegations of both intentional and wanton and willful misconduct as a basis for punitive damages. The trial court granted summary judgment against Yvonne individually and as personal representative on all counts.
Restated, the issues are: 3
I. Whether summary judgment in favor of Defendants on the strict liability theory of failure to warn and on the strict liability and negligence theories of failure to design safer cigarettes was appropriate as a matter of law because:
A. the theories are preempted by the Federal Cigarette Labeling and Advertising Act;
B. the causes of action based upon the theories are barred by the applicable statute of limitations;
C. the alleged defects are open and obvious; and
D. cigarettes are not unreasonably dangerous.
II. Whether Defendants are entitled to summary judgment on the fraud, constructive fraud, and fraudulent concealment claims.
III. Whether Defendants are entitled to summary judgment on Yvonne's individual claim for intentional infliction of emotional distress.
IV. Whether Defendants are entitled to judgment on the claims for punitive damages.
Defendants argue, "[i]n response to Defendants' motion for summary judgment, plaintiffs have failed to meet their burden of producing specific facts to show that cigarettes are defective and unreasonably dangerous." Appellees' Brief at 11 (emphasis added). Defendants cite Hinkle v. Niehaus Lumber Co. (1988), Ind., 525 N.E.2d 1243 for the proposition that "the party opposing summary judgment must 'come forth with specific facts showing there is a genuine issue for trial.' " Appellees' Brief at 11 (citing Hinkle at 1246). Defendants overlook the well-established rule of Indiana law that such a burden is triggered only when a moving party defendant has first met his or her burden to negate, by material deemed competent by Ind.Trial Rule 56(C), the existence of any issues of fact material to the non-moving plaintiff's claim. This was true in Hinkle where the burden had shifted to the non-moving party plaintiff to demonstrate a genuine issue of material fact because deposition testimony established the moving party defendant was unaware of the use to which the allegedly defective product was put, thus negating that essential element of plaintiff's case.
Ind.Trial Rule 56 states:
(C) .... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits filed pursuant to Trial Rule 5(D), together with any testimony show that there is no genuine issue as to any material fact, and that the...
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