Spain v. Brown & Williamson Tobacco Corp.

• Decision Date: 18 October 2000
• Docket Number: No. 99-15021,99-15021
• Citation: 230 F.3d 1300
• Parties: (11th Cir. 2000) Paul L. SPAIN as Administrator for the Estate of Carolyn Watts Spain, Deceased, Plaintiff-Appellant, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Philip Morris, Inc., et al., Defendants- Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1300

230 F.3d 1300 (11th Cir. 2000)

Paul L. SPAIN as Administrator for the Estate of Carolyn Watts Spain, Deceased, Plaintiff-Appellant, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Philip Morris, Inc., et al., Defendants- Appellees.

No. 99-15021.

United States Court of Appeals, Eleventh Circuit.

October 18, 2000.

October 30, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Alabama. (No. 99-02424-CV-AR-S), William M. Acker, Jr., Judge.

Before CARNES, MARCUS and FARRIS^*, Circuit Judges.

CARNES, Circuit Judge:

This is a cigarette product liability case initially brought in the Alabama state courts by Paul Spain, as administrator of the estate of Carolyn Spain, against Phillip Morris, Inc., R.J. Reynolds Tobacco Company, and Brown & Williamson Tobacco Corporation, seeking recovery under the Alabama wrongful death statute. After removing the case to federal court on diversity grounds, the defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Stating only that the motion was "well-taken," the district court granted it and dismissed all of Spain's claims with prejudice. Spain has appealed. For reasons we will explain, we have concluded that certain issues of state law should be certified to the Alabama Supreme Court.

I. BACKGROUND

A. FACTS

Because the case is before us on a Rule 12(b)(6) dismissal, we take the facts from the allegations in the complaint, assuming those allegations to be true. See Brown v. Crawford County, Georgia, 960 F.2d 1002, 1010 (11th Cir.1992).

Carolyn Spain started smoking cigarettes in 1962, when she was "approximately 15 years of age and was a multi-pack per day smoker." She became addicted to the nicotine in cigarettes early on and was unaware at the time that she was becoming addicted. She primarily smoked cigarettes manufactured by Phillip Morris, Inc., R.J. Reynolds Tobacco Company, and Brown & Williamson Tobacco Corporation. Carolyn's smoking was the proximate cause of her lung cancer, which was diagnosed on August 15, 1998. Unable to stop, she continued smoking until 1999. She has since died.¹

B. PROCEDURAL HISTORY

On August 5, 1999, Paul Spain, as administrator of the estate of Carolyn Watts Spain, filed suit against the defendants in state court, seeking recovery under the Alabama wrongful death statute based on the defendants' alleged wrongful acts and omissions in connection with the manufacture, design and sale of cigarettes. The complaint asserted five causes of action (1) liability under the Alabama Extended Manufacturers Liability Doctrine ("AEMLD"); (2) negligence; (3) wantonness; (4) breach of warranty; and (5) conspiracy.²

The defendants removed the case to federal court,³ and after removal filed a motion to dismiss all of Spain's claims under Federal Rule of Civil Procedure 12(b)(6). They argued, among other things, that the claims were barred by Alabama's rule of repose and the applicable statutes of limitations; that as a matter of Alabama law cigarettes are not unreasonably dangerous; and that some of Spain's claims were preempted by federal law. Stating only that the motion was "well-taken," the district court granted it and dismissed all of Spain's claims with prejudice. This is Spain's appeal of that dismissal.⁴

II. DISCUSSION

Although federal court jurisdiction is premised on diversity of citizenship, important federal law preemption issues will be presented for us to decide if, and only if, Spain's claims survive the multitude of state law arguments and defenses the defendants have raised. We will begin our discussion by describing the federal law preemption issue in this case, and then the state law issues, the resolution of which will define and may render academic that federal issue.

A. THE FEDERAL LAW ISSUE

Section 5(b) of the Federal Cigarette Labeling and Advertising Act of 1965 ("1965 Act"), as amended by the Public Health Cigarette Smoking Act of 1969 ("Labeling Act" or "1969 Act"), 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 [lawfully] labeled." 15 U.S.C. 1334(b). The lawfully required label is the familiar "WARNING: THE SURGEON GENERAL HAS DETERMINED THAT CIGARETTE SMOKING IS DANGEROUS TO YOUR HEALTH." See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 508, 112 S.Ct. 2608, 2613, 120 L.Ed.2d 407 (1992) (plurality opinion).

In Cipollone, the Supreme Court set forth a test to determine which state law claims are preempted by the Labeling Act. See id. at 524, 112 S.Ct. at 2621. A common law or other state law claim is preempted if "the legal duty that is the predicate of the ... 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.

The defendants contend that the post-1969 portion of the claims Spain asserts are precisely the type of claims Cipollone held to be preempted, because those claims seek to impose a duty to provide warnings over and beyond those required by the Labeling Act.⁵ Citing the Alabama Supreme Court's decision in Cantley v. Lorillard Tobacco Co., 681 So.2d 1057, 1061-62 (Ala.1996), the defendants argue that under Alabama law they had no duty to provide additional warnings beyond those required by federal law and no duty to communicate even those warnings by means other than advertising or promotion.

Spain, on the other hand, contends that the Labeling Act had limited preemptive effect. He maintains that under Cipollone and Cantley, many of his claims (including his pre-1970 claims in their entirety, his post-1969 claims for defect in product, misrepresentation and conspiracy, his post-1969 claims for negligence based on testing or research practices, and his post-1969 claims for negligence based on failure to disclose facts through channels of communication other than advertising or promotion) survive federal preemption.⁶ Finally, Spain argues that there is a genuine issue of material fact as to whether the defendants violated the Labeling Act, although he does not specify what consequences he thinks follow from such a failure.

At the outset, we recognize that Spain's state law claims, insofar as they relate to the time period before the effective date of the 1969 Labeling Act, are not preempted by that federal legislation. Those claims' viability or lack of it will depend entirely upon disputed issues of state law. So, "[t]here is no way for us to avoid [those] state law issues in this case," Blue Cross & Blue Shield of Alabama, Inc. v. Nielson, 116 F.3d 1406, 1412 (11th Cir.1997).

In addition to requiring a state law answer to the pre-1969 portion of Spain's claims, this case may also require us to decide the federal law issue of which, if any, of Spain's post-1969 claims are preempted by the Labeling Act. But we will not reach that federal law issue unless some of those post-1969 claims are otherwise viable under state law. In other words, if Spain has no post-1969 claims as a matter of state law, or if there are complete state law defenses to those claims, then we will not reach the federal law preemption issue. That is why resolution of the state law issues is certainly the first, and depending upon how those issues are resolved could be the final, step in deciding this case.

B. THE STATE LAW ISSUES

1. When the Causes of Action Accrued for Purposes of the Applicable Statutes of Limitations

There is no dispute about which statutes of limitations apply to Spain's claims. The parties agree that the AEMLD, negligence, wantonness and conspiracy claims are subject to a 2-year statute of limitations, see Ala.Code 6-2-38, and that the breach of warranty claim is subject to a 4-year statute of limitations, see Ala.Code 7-2-725. The dispute is about when the claims arose, or the causes of action accrued, and thus when those statutes of limitations began to run.

Alabama's general rule regarding statutes of limitations is as follows:

If the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, be the actual damage [then apparent] however slight, and the statute will operate to bar a recovery not only for the present damages but for damages developing subsequently and not actionable at the time of the wrong done; for in such a case the subsequent increase in the damages resulting gives no new cause of action. Nor does plaintiff's ignorance of the tort or injury, at least if there is no fraudulent concealment by defendant, postpone the running of the statute until the tort or injury is discovered.

Kelly v. Shropshire, 199 Ala. 602, 75 So. 291, 292 (1917) (as quoted in Garrett v. Raytheon Co., 368 So.2d 516, 519 (Ala.1979)). However:

there are cases where the act complained of does not itself constitute a legal injury at the time, but plaintiff's injury only comes as a result of, and in furtherance and subsequent development of, the act defendant has done. In such cases, the cause of action accrues, and the statute of limitations begins to run, when, and only when, the damages are sustained.

Garrett v. Raytheon Co., 368 So.2d at 519 (internal marks omitted); see generally McWilliams v. Union Pacific Resources Co., 569 So.2d 702, 704-06 (Ala.1990) (Maddox, J., concurring specially) (discussing the "two lines of cases dealing with the tolling of the statute of limitations where the damages became apparent only sometime after the actual wrong was committed").⁷

The defendants argue that, taking the complaint as true, a "completed wrong" occurred, and thus Spain's cause of action arose, when Carolyn became addicted to cigarettes shortly after she began...