893 F.2d 541 (3d Cir. 1990), aff'd in part and rev'd in part, 505 U.S. 504 (1992)
Rose Cipollone was born in 1925 and began to smoke in 1942.1 She smoked Chesterfield brand cigarettes, manufactured by Liggett, until 1955.2 In her deposition, introduced into evidence at the trial, she stated that she smoked the Chesterfield brand to be "glamorous," to "imitate" the "pretty girls and movie stars" depicted in Chesterfield advertisements, and because the advertisements stated that Chesterfield cigarettes were "mild."3 Mrs. Cipollone stated that she understood the description of Chesterfield cigarettes as "mild" to mean that the cigarettes were safe.4 Mrs. Cipollone also testified that she was an avid reader of a variety of magazines, frequently listened to the radio, and often watched television during the years that she smoked the Chesterfield brand.5
In 1955, Mrs. Cipollone stopped smoking Chesterfield cigarettes and began to smoke L & M filter cigarettes, also made by Liggett.6 She switched because they were talking about the filter tip, that it was milder and a miracle it would keep the stuff inside a trap.7 She also recalled ads about the filter being safer.8
In 1968, Mrs. Cipollone stopped smoking the L & M brand and started smoking the Virginia Slims brand, manufactured by Philip Morris, because it was very glamorous and very attractive ads.9 In the 1970's, she switched to the Parliament brand, also manufactured by Philip Morris.10 In 1974, she changed from the Parliament to the True brand, a cigarette manufactured by Lorillard, Inc.11 From 1942 until the early 1980's, Mrs. Cipollone smoked between one pack and two packs of cigarettes per day.12
In 1981, Mrs. Cipollone was diagnosed as having lung cancer, but even though her doctors advised her to stop smoking, she was unable to do so.13 Mrs. Cipollone continued to smoke until June of 1982 when her lung was removed.14 She stopped smoking in 1983 after her cancer had spread widely and she had become terminally ill.15 Mrs. Cipollone died on October 21, 1984.16
On August 1, 1983, Mr. and Mrs. Cipollone filed a complaint in the district court for the District of New Jersey, founded on diversity of citizenship, seeking damages against Liggett, Philip Morris, and Lorillard for the suffering and monetary losses resulting from Mrs. Cipollone's lung cancer.17 On May 31, 1985, following Mrs. Cipollone's death, and suing in his capacity as Mrs. Cipollone's executor and on his own behalf, Mr. Cipollone filed a third amended complaint, upon which the case was tried.18
In an earlier opinion in the case, Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir.1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987), we held that the Federal Cigarette Labeling and Advertising Act preempted claims arising from smoking after January 1, 1966 based upon the cigarette companies' advertising or promotion of cigarettes or upon the adequacy of their warnings as to the hazards of smoking.19 After five years of discovery and numerous pretrial motions, the case proceeded to trial on plaintiff's failure to warn, design defect, express warranty, fraudulent misrepresentation, and conspiracy claims, and on defendants' comparative fault and statute of limitations defenses.20 The jury found that Liggett had breached an express warranty made to consumers.21 The jury awarded Mr. Cipollone $400,000 to compensate him for damages that he sustained from Liggett's breach of warranty.22 The jury awarded Mrs. Cipollone's estate no damages on the breach of warranty claim.23 Both sides appealed, raising issues about jury instructions on comparative fault, express warranty, causation, and pretrial rulings.24
Whether Mrs. Cipollone's post-1965 conduct should have been considered in deciding her comparative fault on the failure to warn claim?25
Under the New Jersey Comparative Fault Act, N.J.S.A. 2A:15-5.1, contributory negligence shall not bar recovery if not greater than the negligence of the defendant, and damages shall be diminished by the percentage of negligence attributable to the plaintiff.26 In Ostrowski v. Azzara, 111 N.J. 429, 545 A.2d 148 (1988), the New Jersey Supreme Court held that once a legal wrong has occurred, plaintiff's conduct after that time bears only on mitigation of damages, not on comparative fault.27
No. The district court erred in permitting the jury to consider Mrs. Cipollone's post-1965 conduct for comparative fault purposes on the failure to warn claim.28 The preemption decision imposed an automatic cut-off date of January 1, 1966 for imposition of liability, rendering Liggett's post-1965 marketing practices immune from scrutiny as a matter of law.29 Under Ostrowski, Mrs. Cipollone's post-1965 smoking should have been considered only as relevant to avoidable consequences, possibly reducing damages but not foreclosing liability altogether.30 The jury found her 80 percent at fault based on smoking from 1942 to 1983, yet there is no way of knowing how much of that fault is attributable to her pre-1966 smoking.31
Therefore, the judgment entered on the jury verdict in Liggett's favor on the failure to warn claim must be reversed.32
The district court erred in permitting the jury to consider Mrs. Cipollone's post-1965 conduct in deciding her comparative fault on the failure to warn claim.33
Whether the district court erred in failing to instruct the jury that Mrs. Cipollone's nonreliance on Liggett's safety advertisements would prevent her from recovering on her express warranty claim?34
Under U.C.C. section 2-313, N.J.S.A. § 12A:2-313, express warranties are created by any affirmation of fact or promise that becomes part of the basis of the bargain. A plaintiff effectuates the basis of the bargain requirement by proving that she read, heard, saw or knew of the advertisement containing the affirmation of fact or promise, after which the statements are presumed to be part of the basis of the bargain unless the defendant shows by clear affirmative proof that the buyer knew that the affirmation was untrue.35
Yes. The district court's jury instructions were erroneous because they did not require the plaintiff to prove that Mrs. Cipollone had read, seen, or heard the advertisements at issue.36 The instructions also did not permit the defendant to prove that although Mrs. Cipollone had read, seen, or heard the advertisements, she did not believe the safety assurances contained therein.37 There is ample evidence from which a jury could conclude that Mrs. Cipollone saw, read, or heard the advertisements, as she frequently listened to the Arthur Godfrey show and read magazines that contained them.38
There is also evidence that family members brought the hazards of smoking to her attention, so Liggett might be able to prove that she did not believe the advertisements that she saw.39 The judgment on the express warranty claim must therefore be reversed and the case remanded for a new trial.40
The district court erred in failing to instruct the jury that Mrs. Cipollone's nonreliance on Liggett's safety advertisements would prevent her from recovering on her express warranty claim.41
Whether comparative fault principles apply to an express warranty claim?42
Comparative fault principles may be applicable in some express warranty cases, but only to the extent that the defendant can show that the buyer misused or abused the product or used the product after learning that the warranty was false.43 On the facts of this case, it would have been impossible for Mrs. Cipollone to have known of the dangers of smoking and still have believed enough in Liggett's advertisements for them to constitute a warranty.44
No. Although comparative fault principles may be applicable in some express warranty cases, they are not applicable here.45 In order to make out a prima facie express warranty claim, Mr. Cipollone must show that Liggett's affirmations were part of the basis of the bargain.46 As long as the plaintiff can show that Mrs. Cipollone knew of Liggett's affirmations of fact, those affirmations are presumed to be a basis of the bargain unless Liggett can prove that she did not believe those advertisements.47 If the jury finds that the cigarettes that Mrs. Cipollone smoked in breach of the express warranty proximately caused her cancer, then it is implicitly finding that she believed the advertisements when she bought those cigarettes.48
Liggett's defense is thus more appropriate in the more typical U.C.C. case involving subsequent use after discovery of a defect, which is inapplicable in the cigarette context because the few cigarettes used after learning of a warranty's falsity cannot cause the kind of harm that one defective tire can.49
Comparative fault principles do not apply to the express warranty claim on the facts of this case.50
Whether there was sufficient evidence to support a jury finding that Mrs. Cipollone's injury was caused by Liggett's breach of express warranty?51
Under U.C.C. section 2-313, no formality or magic words are required to create an express warranty, and the seller may be liable if its representation regarding the goods takes the form of newspaper, magazine, radio or television advertisements. A judgment n.o.v. may be granted only if the record is critically deficient of that minimum quantity of evidence from which a jury might reasonably afford relief.52
No. The record contains sufficient evidence to support a jury finding that Liggett breached an express warranty and that the breach proximately caused Mrs. Cipollone's lung cancer.53 Many Chesterfield and L & M advertisements were submitted to the jury, including unqualified statements that nose, throat, and accessory organs are not adversely affected by smoking Chesterfields and that L & M filters were just what the doctor ordered.54 A reasonable jury could conclude from these advertisements that Liggett had represented to the consumer that the long-term smoking of Chesterfield or L & M cigarettes would not endanger the consumer's health, and that these warranties were untrue.55 The statistical correlation between heavy smoking and lung cancer is well-documented, and expert testimony established that Mrs. Cipollone's early years of smoking contributed more on a year-to-year basis than her later years of smoking.56
Under the substantial factor test for proximate cause, the jury could have reasonably concluded that Mrs. Cipollone's smoking from 1952 to 1966 proximately caused her lung cancer.57
There was sufficient evidence to support a jury finding that Mrs. Cipollone's injury was caused by Liggett's breach of express warranty.58
Whether the district court erred in granting partial summary judgment for Mr. Cipollone with respect to the defendants' statute of limitations defense?59
New Jersey has a two year statute of limitations for personal injury actions and has adopted the discovery rule, under which a cause of action will be held not to accrue until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered, that he may have a basis for an actionable claim.60
Yes. The district court erred in granting partial summary judgment for Mr. Cipollone on the statute of limitations defense.61 Mrs. Cipollone went to Dr. Alfred Lowy on July 23, 1981 for her regular medical checkup and x-ray, at which time Dr. Lowy told her that he had discovered a spot on her lung.62 Mrs. Cipollone believed that this spot could be cancer caused by her smoking.63
Dr. Lowy advised her to see a lung specialist immediately, and she went to Dr. Seriff the next day.64 Although Dr. Seriff did not tell her that there was a possibility that she had lung cancer, upon leaving his office Mrs. Cipollone quit smoking for the first time in twenty-four years.65 By July 30, 1981, Mrs. Cipollone knew that she had a spot on her lung and believed that the spot could be cancer caused by smoking.66 A reasonable jury could find that Mrs. Cipollone by the exercise of reasonable diligence and intelligence should have discovered that she may have had a basis for an actionable claim prior to August 1, 1981.67
The district court erred in granting partial summary judgment for Mr. Cipollone with respect to the defendants' statute of limitations defense.68
Whether the district court erred in striking the generic risk-utility claim?69
Section 3(a)(2) of the New Jersey Products Liability Act provides that if the plaintiff asserts a design defect claim against a manufacturer, the manufacturer shall not be liable if the characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product and that would be recognized by the ordinary person who uses or consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended.70 Section 8 of the Act provides that provisions establishing new rules with respect to burden of proof or the imposition of liability apply only to product liability actions filed on or after the date of enactment.71
Yes. The district court erred in striking the generic risk-utility claim.7273 Although the district court found that section 3(a)(2) was a codification of existing common law and hence intended to be applied retroactively, section 3(a)(2) was not a codification of existing common law, although it may have been a clarification of New Jersey law.74 As a clarification, the provision was meant to be applied retroactively because section 8's prospective only provision applies only to new rules.75
Applying the language of the Act, the inherently dangerous characteristics of cigarettes were not known to the ordinary consumer or user prior to 1966, and this is an issue of fact for the jury.76 Therefore the plaintiff should be allowed to proceed on his generic risk-utility claim.77
The district court erred in striking the generic risk-utility claim.
Whether the district court erred in denying prejudgment interest?78
New Jersey Court Rule 4:42-11(b) provides that the court shall, in tort actions, including products liability actions, include in the judgment simple interest.79 The policy underlying the rule is to inhibit delay and encourage settlement, and the public interest in encouraging settlements is an adequate independent basis for the application of the prejudgment interest rule even in the case of future losses.80
Yes. The district court erred in denying prejudgment interest on the express warranty claim.81 The language of the rule indicates that the drafters wanted to include actions in addition to just those sounding in tort, otherwise the inclusion of the products liability language would be superfluous.82 This is a products liability case.83
The policy concerns of inhibiting delay and encouraging settlement are particularly applicable in the case at bar, which has already been the source of seven district court opinions and three published opinions by this court.84 The New Jersey Supreme Court has stated that the public interest in encouraging settlements is an adequate independent basis for the application of the prejudgment interest rule even in the case of future losses, and the protracted nature of this litigation warrants application of the rule.85
The district court erred in denying prejudgment interest.86
Whether federal law preempted the intentional tort claims?87
The Federal Cigarette Labeling and Advertising Act preempts those state law damage actions relating to smoking and health that challenge either the adequacy of the warning on cigarette packages or the propriety of a party's actions with respect to the advertising and promotion of cigarettes.88
No. The district court did not err in holding that federal law preempted the intentional tort claims.8990 The plaintiff's intentional tort claim is founded on an allegation that defendants intentionally, willfully, and wantonly, through their advertising, attempted to neutralize the federally mandated warnings that were given regarding the adverse effects of cigarette smoking.91 The plaintiff's claim manifestly challenges the propriety of the defendants' actions with respect to the advertising and promotion of cigarettes.92 Therefore the district court correctly construed the preemption decision to bar the intentional tort claims to the extent that they sought to challenge the defendants' advertising, promotional, and public relations activities after January 1, 1966.93
Federal law preempted the intentional tort claims.