Cipollone v. Liggett Group, Inc.

Cipollone v. Liggett Group, Inc.

Argued October 8, 1991
Decided June 24, 1992
Full case name Thomas Cipollone, Individually and As Executor of the Estate of Rose D. Cipollone v. Liggett Group, Inc., et al.
Citations

505 U.S. 504 (more)

112 S. Ct. 2608; 120 L.Ed.2d 407; 60 U.S.L.W. 4703; CCH Prod. Liab. Rep. P13,199; 17 U.C.C. Rep. Serv. 2d (Callaghan) 1087; 92 Cal. Daily Op. Service 5517; 92 Daily Journal DAR 8688; 6 Fla. L. Weekly Fed. S 589
Prior history

893 F.2d 541 (3d Cir. 1990) Interpretation of previous federal law preemption decision as barring plaintiff's failure to warn, fraudulent misrepresentation, express warranty, and conspiracy to defraud claims affirmed. Reversal on other issues require a remand for a new trial.

693 F. Supp. 208 (D.N.J. 1988) Defendants' motion for judgment notwithstanding the jury verdict for the plaintiff and other post-trial motions denied.

683 F.Supp. 1487 (D.N.J. 1988) Motion to strike design defect claim granted (not appealed).

107 S.Ct. 907, 93 L.Ed.2d 857 (1987) Certiorari denied, case returned for trial.

789 F.2d 181 (3d Cir. 1986) Ruling on motion reversed, remanded for further proceedings.

593 F.Supp. 1146 (D.N.J. 1984) Motion to strike federal law preemption defense granted.
Holding

In this divided ruling, the Court found that a 1966 federal cigarette labeling law did not preempt state law damages actions; but later amendments to the act in 1969 did preclude not just "failure to warn" claims, but also on the broader duty "to inform consumers of known risks."

The 1969 amendments, however, did not preempt claims based on express warranty, intentional fraud and misrepresentation, or conspiracy.

The judgment of the Court of Appeals is reversed in part and affirmed in part, and the case is remanded for further proceedings.
Court membership
Chief Justice
William Rehnquist
Case opinions
Majority Stevens, joined by Rehnquist, White, Blackmun, O'Connor, Kennedy, and Souter (Parts I, II, III, and IV)
Concurrence Stevens, joined by Rehnquist, White and O'Connor (Parts V and VI)
Concur/dissent Blackmun, joined by Kennedy and Souter
Concur/dissent Scalia, joined by Thomas
Laws applied
Federal Cigarette Labeling and Advertising Act of 1965, 15 U.S.C.S. §§ 1331-1340

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), was a United States Supreme Court case. In a split opinion, the Court held that the Surgeon General's warning did not preclude suit by smokers against tobacco companies on several claims. The warning at issue said:

WARNING: THE SURGEON GENERAL HAS DETERMINED THAT CIGARETTE SMOKING IS DANGEROUS TO YOUR HEALTH.

The court's holding and some of Justice Stevens's reasoning enjoyed majority support, but the opinion eventually gained full majority support 16 years later in Altria Group v. Good.

Background

Rose Cipollone began smoking at the age of sixteen. She continually smoked a pack and a half a day of Chesterfield cigarettes until she first attempted to quit when she became pregnant, as requested by her husband Tyrone Cipollone. Though she cut down on her regular smoking, she still secretly smoked during her pregnancy. In 1955, Mrs. Cipollone switched to Liggett and Myer brand of cigarettes on the basis that their “pure white Miracle Tip” filter appeared to be a healthier alternative to her habit.[1][2] In 1968, she switched, this time to Philip Morris’ Virginia Slims brand because the women advertised smoking seemed “cool, glamorous, and grown-up”.[1][2] A few years later, in 1972, Ms. Cipollone switched to smoking Parliament brand cigarettes for reasons she attributed to health; Parliaments were advertised to have a recessed filter and lower tar content. Finally, Cipollone switched to Lorillard’s True cigarettes under the recommendation of her physician to either quit smoking or switch to this brand of cigarette with its advertised plastic filter inserts. Rose Cipollone was under the misguided impression that “tobacco companies wouldn’t do anything to kill you,” and therefore, continued to smoke cigarettes.[1]

In the mid-1960s, Rose Cipollone began to develop a smokers’ cough, as well as problems such as chest pain and hypertension. In 1981, doctors found a carcinogenic spot on her right lung and performed a partial lung resection. Mrs. Cipollone still continued to smoke, “though often now in secret".[1] In 1982, the cancer had spread to her lower and middle right lung, and Cipollone had surgery to remove the entire lung as well as a large adrenal mass in 1983. Rose Cipollone died on October 24, 1984, after her lung cancer had spread and become inoperable.

Rose Cipollone became the litigant in the case after she was recommended by her chest surgeon to attorney Marc Edell. Edell had previously represented the asbestos companies in their defense in regard to the health-related claims brought against them. Due to his involvement in asbestos litigation, Edell became familiar with “pulmonary pathology and risks of smoking” and became interested in litigation against the tobacco industry.[1] In need of a client, Edell took on Cipollone’s case and filed suit in U.S. District Court for the District of New Jersey against Liggett and Myers, Philip Morris, and Lorillard in five separate tort cases on August 1, 1983.

Trial

First case

Edell’s initial case focused on the factor of the cause of Cipollone’s addiction: the nicotine found in her cigarettes. In the initial presentation of the facts, Edell brought forth a series of claims. He planned to prove that:

The tobacco companies motioned to dismiss the case, citing the 1966 Federal Cigarette Labeling and Advertisement Act, which the companies argued preempted independent state regulation of tobacco and therefore prevented state litigation, making the tobacco industry immune to suits. Though the trial judge, H. Lee Sarokin, ruled in favor of Cipollone, the ruling was overturned on interlocutory appeal by the U.S. Court of Appeals for the Third Circuit. The appellate court allowed the case to be retried in district court on the condition that no claims regarding advertisement and promotion could be made.

Second Case

In the retrial of the first case under the new conditions, Edell was not allowed to enter evidence claiming that Liggett & Myers had worked on the creation of a safer cigarette, as well as evidence regarding the tobacco industry’s “duty to warn” of the dangers of cigarette smoking, as the point became moot by the appellate court. Regardless of these setbacks, Edell strengthened his case with his access to 300,000 pages of internal documents of the tobacco companies. These documents included compelling and damaging evidence that the tobacco companies had proof, backed by research dating back to the 1940s, that nicotine was addictive and potentially carcinogenic. The tobacco industry unsuccessfully struggled to suppress the evidence on the grounds that it would divulge trade secrets; the trial court judge, Sarokin, ruled that the people and the court had the Constitutional right to know what the companies know. Though the tobacco industry appealed this ruling to the Third Circuit Court of Appeals, which upheld the ruling, as well as the Supreme Court, which refused to hear the case, it was established that the evidence would be used in trial. Alongside the confidential tobacco industry documents, Edell argued that the powerful advertising for the brands Cipollone smoked was an unscrupulous strategy utilized by the tobacco industry to not only overshadow the warning labels mandated by the federal government, but also to promote cigarette use and nicotine addiction as a marketing strategy for company profit. Edell claimed that Cipollone’s tobacco use stemmed from her nicotine addiction, which was encouraged by the advertising of Liggett and Myers, Philip Morris, and Lorillard by the use of both health claims and deviously appealing advertising. Cipollone was portrayed as a woman who was disparaged by her powerful addiction to the tobacco industry’s product; expert testimony showed that she even displayed withdrawal symptoms, sometimes digging through “the trash for butts when she ran out of cigarettes”.[1] After presenting his case that the tobacco industry’s advertising of cigarettes and knowledge of risk related to Cipollone’s claims, the defense moved for dismissal. The motion was denied.

The tobacco industry argued that Rose Cipollone was fully aware of the risks of smoking both before and during her cigarette use. She was an independent woman, making an independent decision to continue smoking, and she was in control, not the nicotine. Furthermore, even if the cigarettes had caused her death, it was in no way the responsibility of the industry, as research, as well as the confidential documents entered into evidence, did not show any explicit proof that lung cancer is linked directly to smoking. Furthermore, expert testimony revealed that the type of lung cancer affecting Mrs. Cipollone was not associated with smoking, and that Cipollone’s constant switching between “healthier” brands showed her acknowledgment of the dangers of smoking.

Ruling

District Court

The jury deliberated for 6 days, and reached the verdict that:

It was considered a victory for both sides; while Cipollone was awarded damages, signifying the first time a tobacco company had paid damages in a liability case, the tobacco industry was justified in their claim regarding free choice in the decision to smoke cigarettes.

Court of Appeals

In 1990, the Third Circuit appellate court threw out the verdict and:

Five days after the appellate ruling, Antonio Cipollone died, and the case continued on with his son. Both the plaintiff and the defense in this case were looking for a concrete doctrine regarding the ability to litigate regarding preemption, state regulation of tobacco, and the Act cited in the first trial of the case.

Supreme Court

The Supreme Court addressed the issue of preemption of federal law in regard to state law regulating the tobacco industry and whether common law damages constitute a requirement based on smoking and health based on state law in regard to advertisements and promotion.[3] The Cigarette Labeling and Advertising Act of 1969, which excludes all manufacturers who label their packages with proper warnings from requirement or prohibition led the majority of the court to the opinion that:

The majority ruling also limited the potential litigants to smokers who developed disease prior to 1969. The opinion did not exclude fraud and conspiracy or express warranty, as section 5b of the 1969 Act does not explicitly define this; if the plaintiff could prove that the industry conspired to hide evidence concerning the harms of smoking or lied to the public about them, or if express warranties were breached, then a new case can be filed, as there is no discussion of tort litigation or damage claims in the Act. While the concurring opinion found that no damage claims were preempted rather than not discussed, the dissenting justices found that all state laws were preempted by the act.

Aftermath

The U.S. Supreme Court remanded Cipollone v. Liggett Group, Inc. for a new trial. The retrial never occurred; the $400,000 verdict for Cipollone from the original trial was far eclipsed by the exorbitant costs and length of the lawsuit. Since the case was filed, almost half the ten years was spent on post-trial matters.[4] In 1988, Phillip Morris was quoted as saying: "Almost 200 lawsuits have been brought in the last five and a half years and the cigarette manufacturers have not ... paid a penny to settle one."[4] As of 1992, the law firms handling Cipollone and seven other tobacco litigation cases had "incurred approximately $1.2 million in out-of-pocket expenses ... The firms have also spent well over $5 million in lawyer and paralegal time".[4]

Rose Cipollone's son filed for a voluntary withdrawal of the lawsuit on November 4, 1992. Six other tobacco liability cases were withdrawn the same month as well.[4] The firm handling Cipollone was denied withdrawal in the last remaining case, Haines v. Liggett Group, Inc. Haines dragged on for another decade and then some, until a settlement order was approved on April 13, 2004.[5]

References

  1. 1 2 3 4 5 6 7 Brandt, Allan M. "The Cigarette Century: the Rise, Fall, and Deadly Persistence of the Product That Defined America." New York: Basic, 2009, ISBN 978-0-465-07048-0
  2. 1 2 Jacobson, Douglas N. "After Cipollone v. Liggett Group, Inc.: How Wide Will the Floodgates of Cigarette Litigation Open?" (PDF). 38 American Univ. Law Rev. 1021 (1988). American University Law School. Retrieved 3 November 2014.
  3. ↑ Cipollone v. Liggett Group, Inc., 505 US 504 (1992)
  4. 1 2 3 4 Lechner (U.S. District Judge) (26 January 1993). "Opinion, Haines v. Liggett Group, Inc., 814 F.Supp. 414 (D.N.J. 1993)". U.S. District Court for the District of New Jersey.
  5. ↑ "Haines v. Liggett Group Inc.". Tobacco Documents.org. Retrieved 3 November 2014.

External links

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