*1 Inc., Group, Hill Liggett Company, of the assignment not obtain did AGCO For Knowlton, Inc., The Council And signing of until after Obligations Retail Inc., Research-U.S.A., Tobacco Anglins Guaranties, we doubt Institute, Inc., Defen- The Tobacco dispute with their contemplated ever dants-Appellees. the arbi- way to find its would Agricredit table. tration 99-2654, 99-2693. Nos. Appeals, Court States United
III. Circuit. Seventh not have con- could Anglins Because 19, 2000 Argued Jan. clause arbitration templated that 16, 2000 June Decided dispute encompass would with AGCO we conclude party, nonsignatory Rehearing En Banc with Rehearing and their author- exceeded that the arbitrators Aug. Denied Retail Obli- Anglins’ arbitrating the ity by REVERSEthe We Agricredit.
gations arbitra- confirmation court’s
district case to award, Remand
tion con- proceedings further court
district order. with this
sistent Billy Mays, INSOLIA, Maureen
Vincent Phyllis Mays, Insolia,
Lovejoy, Karen Plaintiffs-Appel Lovejoy,
and Lee
lants,
v. INCORPORATED,
PHILIP MORRIS Company, Reynolds Tobacco
R.J. Corpo Tobacco
Brown & Williamson P.L.C., Loril
ration, Industries B.A.T. Liggett Company, Tobacco
lard Inc., Knowlton, Inc.,
Group, Hill Research- For Tobacco
The Council Inc., Insti
U.S.A., and The Tobacco
tute, Inc., Defendants-Appellees. Corporation,
Physicians Plus Insurance
Plaintiff-Appellant, Reyn- Incorporated,
Philip R.J. Morris Company, & Wil- Brown
olds Tobacco Corporation, B.A.T. Tobacco
liamson P.L.C., Tobacco Lorillard
Industries *2 filed from a lawsuit stems appeal
This
mak-
major cigarette
country’s
against
by three
groups
industry trade
ers
can-
lung
developed
who
former
All three
smoking.
they blame
cer that
*3
long
smoking
before
began
smokers
(ar-
ciga-
on
Schooler,
appeared
A.
warnings
Olsen
James
first
J.
Steven
WI,
Madison,
all
three
Cates,
in
and
packages
&
rette
Lawton
gued),
day for'
Farring-
every
McClain,
packs
Humphrey,
two to three
B.
smoked
Kenneth
MO,
began
Insolia
Rich-
McClain,
Vincent
Independence,
decades.
several
ton &
12,
Boardman, Suhr,
1935,
and smoked
Curry
age
&
at
Schmidt,
in
smoking
ard L.
smoking in
began
Madison, WI,
plaintiff-appellant
Billy Mays
Field,
for
until 1974.
13,
until 1994.
continued
1951,
age
at
and
Brady,
Zaleski,
&
Quarels
L.
Michael
1953,
Lovejoy began
Maureen
(argued),
WI,
Speyer
F.
Madison,
James
three
15,
in 1996. The
and quit
age
CA,
Porter,
James
Angeles,
Los
Arnold &
in the
lung cancer
diagnosed with
were
Lardner, Timothy J.
Clark, Foley &
R.
1990’s.
Ralph
Murray,
Pike, Peterson,
&
Johnson
spouses,
and their
Deuren,
Boerner,
former
Reinhart,
The
Van
Weber,
A.
citizens,
in state
filed suit
Milwaukee, WI,
all
Rieselbach,
Wisconsin
Norris &
the case
removed
Schultz,
the defendants
Niess,
court but
Schultz, Coyne,
Bruce A.
jurisdic-
diversity
under
court
Madison, WI,
B.
to federal
Bauer,
Robert
Becker &
Judge
§
District
tion,
1332.
Vennum,
28 U.S.C.
Minne-
Raschke, Lindquist &
all but one
extinguished
B. Crabb
Gebhárt,
H. Barbara
MN,
F.
John
apolis,
James
summary judg-
on
claims
Koeppl,
Schmid,
Brynelson, John
Axley
(W.D.Wis.1999),
ment,
Madison, WI,
F.Supp.2d
Stevens,
for
Dewitt, Ross &
was
subsequently
claim
remaining
and the
defendant-appellee.
argue
appeal,
On
dropped.
CUDAHY,
BAUER,
Before
mis-
liability, negligence,
their strict
EVANS,
Judges.
Circuit
exposure to
intentional
representation, and
have
claims should
substance
a hazardous
EVANS,
Judge.
Circuit
they ask
judgment,
summary
survived
as moral
the Wis-
thing
questions
certify
were such
several
If
us to
there
appeal would
of this
Court.
Supreme
the outcome
estoppel,
consin
companies
plain. For decades
judg-
summary
grant
review
We
noth-
that there is
public
have assured
novo,
construing
evidence
de
ment
they now
yet
cigarettes,
from
ing
fear
nonmoving
light most favorable
by profess-
this one
slough
lawsuits like
off
Transp.
Int’l
Navistar
Bragg v.
party.
along
all
everybody knew
ing that
Cir.1998).
(7th
373, 376
164 F.3d
Corp.,
risky.
was
under
appropriate
judgment
Summary
56(c) if
Procedure
Rule of Civil
stance,
ciga- Federal
litigation
taking
material
issues of
genuine
no
there are
from
suffering
either
rette makers
Catrett,
477 U.S.
Corp.
Celotex
acknowledging
fact.
or are
amnesia
(1986).
91 L.Ed.2d
106 S.Ct.
years has
been
propaganda over
inef-
judg-
summary
moving however,
party
ap- Once
estoppel,
fectual.
Judicial
opponent’s
in the
hole
uncovers a
adopted ment
positions
plies only to inconsistent
bears the
case,
party that
nonmoving
hypocrisy is
punishing
litigation,
must show
at trial
burden
realm.
ultimate
of another
left to a court
something
issue
genuine
creating
is evidence
case
there
is whether this
for us
issue
only
323-25, 106 S.Ct.
Id. at
fact.
summary
of material
out
properly snuffed
which
facts are those
Material
2548.
judgment.
might affect
the outcome of the suit.
smoking,
particular
the addictive nature
Inc.,
Liberty Lobby,
Anderson v.
477 U.S. of smoking. We must first define this
242, 248,
106 S.Ct.
who sells an unreasonably prod- dangerous
uct is liable physical for harm by caused The also the average believe con product. However, the section’s “com- sumer should be a teenager because ment i” explains that “applies this rule when many people begin smoking and be only where the defective condition of the come addicted. The argue defendants product makes it unreasonably dangerous Bic, Todd v. S.A., Societe 21 F.3d to the consumer.... The article sold (7th Cir.1994) (en banc), holds that dangerous must be beyond to an extent children may never be the standard to that which would contemplated by the measure consumer expectations. in Todd ordinary it, purchases consumer who with terpreted law, which, Illinois like Wiscon ordinary knowledge common to the sin, adopted the Second Restatement of community as to its characteristics.” Wis- Torts, Todd, Section 402A. Id. at 1405. In consin courts have restated Restate- a 22-month-old child killed a was fire by ment as “If average follows: consumer by 4-year-old started a using ciga child reasonably would anticipate the dangerous lighter rette belonged to one of the condition of the product fully appreci- adults in the household. Id. at 1404. The ate the attendant injury, risk of it would estate of the deceased child sued the man unreasonably not be dangerous and defec- ufacturer of the cigarette lighter, arguing objective tive. an This is test and is not though the ordinary adult consumer dependent upon the knowledge par- of the appreciated would have lighter’s dan injured ticular consumer.” Sumnicht v. ger, children-—who foreseeable were Toyota Sales, Motor 121 Wis.2d 360 users-—would not have understood the (1984), Vincer, N.W.2d quoting 230 product’s hazards. Id. at 1407-08. The N.W.2d at 798. expand court refused the Restatement’s contemplation contend that consumer the av test from ordi erage in question nary consumer the time did consumers to foreseeable users. Id. fully appreciate the health risks of at 1408. percentage of what interpreta- question defendants’
Contrary to the teenagers. smoking as began univer- there is a tion, mean Todd does record, in this ordinary by con- the evidence Confined sally fixed definition ordinary consumer of relationship no must view we sumer that bears primary adult smoker. beginning Because as product question. cigarettes users, ciga- consumers, purchasers the con adults, per- component The second gauging lighters
rette from the must consid lighters contemplation we cigarette test ceived risks of sumer oddly, makes sense. viewpoint plaintiffs, frame. The adult’s time er is the prod- even holds true for logic as benchmark. using The same suggest primarily is used diapers measuring uct—like is a convenient They say this —that purchased and that is major children but it the first is when stick because But by adults. supervised of which is use came report on Surgeon General product say, bubble suppose there smoking’s out, public awareness — only the children were not which gum^ any greater not have been would hazards —of users, pur- primary also the primary landmark re of that prior to the release con- chasers, any parental independent of defendants, oddly, advo equally port. bub- defy reason to excuse It would trol. that consumer argument at oral cated bubble-gum- manufacturers gum ble *5 the at the time be measured awareness grounds on the injuries to children related discovered, in other words injury was rarely product use the that adults who learned plaintiffs here when the the 1990’s haz- gum’s appreciated have bubble would the cancer. The idea behind they lung had Likewise, if the facts demonstrate ards. is that con contemplation test consumer ais ordinary beginning smoker they eyes open when had their sumers who contempla- consumer then the teenager, prod dangerous potentially chose to use measured from be tion test should manufacturer blame the uct later cannot perspec- teenager’s pre-smoking average However, injuries. foreseeable tive. at a using product began who consumers smoking in their begin do Most to thought be product was time when teens, this. record does not reflect but the holding from precluded safe are to evidence plaintiffs failed introduce The find when responsible manufacturer ever percent of those who have that 82 prod surprise!—the years out later that — age before daily began smoking smoked — n companies Cigarette uct toxic. 18. CenteRS and For Disease Control DDT, asbestos, of with the makers along Mortality Morbidity Prevention, and out to be products turned and other 45, 8, 1996, Weekly Volume Report, Nov. that mea love rule bad news—would Department 45, citing No. Health of U.S. only after consumer awareness sures Preventing Services, TobaCCO and Human danger and has been done damage Among People: Report Young A Of Use discovered, a rule would be but such thus (1994). Instead, the Surgeon The General Instead, preposterous. than a little more Gen- plaintiffs pointed Surgeon to the 1988 contemplated ordinary consumer what the Nicotine Addiction Report on eral’s dangers smoking should be about always “almost be- tobacco said addiction began plaintiffs at the time the evaluated adoles- during early or gins childhood 1935; Insolia, for Lo smoking. For that’s indicating statistics cence” and to early 1950’s. vejoy Mays, that’s all stu- percent high school about 23 up, To sum high percent to 35 percent and 30 dents claim, judgment stage, summary at the smoked. in 1958 1966 school seniors produced hinges on whether impre- General’s remark Surgeon a reasonable that would allow evidence cise, percentage about what and statistics adults American jury find pertinent to are not teenagers smoke
601 early general and in the 1950’s did not about 1935 health hazards and knowing understand the hazards of before about danger of addiction a question they began smoke. of fact that by jury. should decided See State Texas v. American Tobacco a halfhearted effort made Co., 956, (E.D.Tex.1997) 14 F.Supp.2d 966 court to that the ordi- the district show (when facts are viewed in light most favor- consumer, nary they began at the time plaintiff, able to “while the health risks of smoke, appreciate general did not consumption known, are generally smoking. Judge health risks of Crabb re- the addictive consump- nature of tobacco idea, jected and the have tion is not generally known due to the dropped appeal. it on Other courts also misrepresentation concealment De- have held that there was common knowl- fendants”); Castano v. American Tobacco edge smoking, although of the evils of Co., 953, 1, F.Supp. 961 n. 958 959 plaintiffs in many began of those cases (E.D.La.1997); Burton v. Reynolds R.J. plain- at a later date than did the Co., 1515, Tobacco F.Supp. 884 1526 Allgood Reyn- tiffs this case. See v. R.J. (D.Kan.1995); Grinnell, 951 S.W.2d (5th Co., 168, olds Tobacco 172 80 F.3d 429-31(“we simply cannot assume that Cir.1996); Roysdon v. Reynolds R.J. To- common knowledge general 236(6th Co., Cir.1988); bacco 849 F.2d risks tobacco use naturally includes Tobacco Co., Reynolds Guilbeault v. R.J. common knowledge of tobacco’s addictive (D.R.I.2000); F.Supp.2d 84 263 Hollar v. quality”); Rogers Reynolds v. R.J. Inc., Tobac Philip F.Supp.2d 794, Morris 807 (Ct. Co., (N.D.Ohio co App. 557 N.E.2d 1998); Jones American To . Ind.1990). Co., Supp.2d bacco 1 F n (N.D.Ohio 1998); Tompkin v. American . get past To summary judgment Brands, Inc., F.Supp.2d 905 plaintiffs produce needed evidence that *6 (N.D.Ohio 1998); Todd Brown & Wil gen- tobacco’s addictive nature —unlike its Corp., F.Supp. liamson Tobacco 924 62 eral health generally risks —was unknown (W.D.La.1996); Paugh v. Reynolds R.J. in 1935 and the 1950’s. In a world where Co., F.Supp. Tobacco 834 231 the amount of information always ex- (N.D.Ohio 1993); The American Tobacco panding, going back in time to determine Co., Grinnell, Inc. v. 951 S.W.2d 429 public the state of knowledge 50 and 65 (Tex.1997). But see Hill v. Reynolds R.J. years ago easy is no task. But we can Co., F.Supp.2d Tobacco types think of might three of material that (court (W.D.Ky.1999) denied motion to dis- help show ordinary person what the knew unwilling judi- miss because it was to take about smoking early 1935 and the cial something notice “of as intangible as opinion polls 1950’s: during Public taken public knowledge over three decades in the eras; contemporaneous those other assess- past”). attitudes; public ments of and information widely public through available to the exclusive argument television, newspapers, magazines, or oth- appeal although typical is that con sources, er from which one can infer what bad, smoking sumer was aware that ordinary person might have known. he or she didn’t know back then that smoking evidence, was addictive. The idea is that In category the first of cancer, cigarettes the first only polling by don’t cause but evidence was introduced they you cigarettes do make crave more pub- the defendants and it addresses the risks, and those additional cigarettes perception general are the lic’s of health that public ones cause cancer down the road. smoking’s It’s what the knew about ad- (Defense really the expert addiction that kills—not smok danger. dictive Theodore ing. Several courts have said that A. a Gallup wheth Wilson said 1954 nationwide poll percent er there is a distinction knowing between showed that 89.9 had heard or Industry Re- Tobacco in 1954 the example, be- connection presumed about read (which later became search Committee cancer. Wilson lung and tween Research) Tobacco Council defendant by Scholas- youths poll of a also cited signed advertisement thought full-page took out a percent 45.4 in which Magazine tic manufac- cigarette by four defendant lung risk of greater a ran smokers all Amer- in the 448 published that was nonsmokers, percent turers 19.6 than cancer popula- cities with serving newspapers ican ran a heavy greater thought only 25,000 Headed people. than cancer, of more percent tions and 32.2 lung risk Cigarette “A Frank Statement be some connection might there thought Smokers,” “[w]e said the advertisement link between no conclusive as a people’s an interest cancer.) accept and lung every paramount responsibility, basic con- the record category second We in our business. consideration other that outside assessments several tains inju- make are not products we believe addictive of nicotine’s unaware public was Tobacco The defendant rious health.” Company Tobacco Reynolds R.J. nature. that release in 1988 issued news Institute wrote Teague E. Claude scientist research people the number about said statistics that “the memorandum planning in a 1972 “con- quit smoking managed to who have keep confirmed smoker things which ‘addic- smoking is an claim any tradict that ‘satisfied’, and i.e. nicotine habituated are that smokers The claims tion.’ ... grati- manipulative secondary physical contradict sense and defy common ‘addicts’ largely fications, unknown and/or n every quit smoking people fact that A Brown the non-smoker.” unexplained testimony congressional In 1994 day.” mar- Corporation Tobacco & Williamson attention, widespread received in a 1978 memo wrote keting employee each of the de- executive officers chief are aware few “[v]ery consumers oath testified under manufacturers fendant nicotine, i.e., its addictive effect was ad- nicotine not believe did poison.” nicotine is nature and sure, ordinary consum- To be dictive. report said Surgeon General’s piece informa- every not soak up er does experi- who many adolescents children advertisement, or, in an appears tion of, or unaware “are cigarettes ment with matter, printed every word that for that ad- underestimate, strength of tobacco govern- uttered newspaper in a or Dr. plaintiffs’ experts, One diction.” *7 informa- knowing what agency. But ment my “In Griest, in affidavit: his John stated public general tion was available per- dealing with nicotine addicted practice what rough fact finder a idea gives the sons, most were unaware I found that have might know. ordinary consumer cigarette nature of highly addictive of the Gri- are addicted.” after smoke until heavily on re- rely most plaintiffs The value, it is since is little est’s statement by Surgeon General ports issued pa- number of the limited that doubtful Surgeon The medical authorities. other representative of seen is tients has he smoking, report on seminal General’s early in and the public large habituating, instance, smoking was said for are mindful of Though we 1950’s. compared report The but not addictive. that coming up in with evidence difficulty -It was until to coffee. tobacco infor- public the state of accurately gauges smok- declared Surgeon General that the stray lines ago, two decades mation several to co- addictive, tobacco comparing ing in a one sentence industry memos and in report also offered plaintiffs The caine. paltry. us as report strikes. government Adminis- Drug Food by U.S. former that said A. Kessler David tration head plaintiffs intro- category the third orga- major public no health prior to 1980 disseminat- duced information evidence that determined nicotine had For nization industry tobacco itself. ed drug. an addictive The defendants belittle knew it would quit be hard to American irrelevant, arguing this evidence as that smoking. The fact Surgeon that the Gen- government what or medical authorities eral and other authorities smoking called experts say does not what the Aver- reflect .only in “habituating” 1964 and not “addict- age plain- Joe on the street knows. The ing” until 1988 is a semantical distinction however, point, public tiffs’ is that if the beyond grasp of our Average Joe. community did not conclude until There is a considerable difference between addictive, 1980 or 1988 that smoking knowing that smoking is bad and knowing surely Average Joe could have addictive, that smoking is but there is not 1935, 1951, known or 1953 that smoking much of a difference knowing between that inference, was addictive. This is a valid and smoking habituating and knowing it is summary judgment on all inferences are plaintiffs addictive. Once the conceded party. drawn favor of the nonmoving the ordinary consumer knew that smoking was habit-forming, they created The evidence this record that an enormous burden for themselves ordinary plain- consumer at the time the they have not surmounted. began smoking tiffs was unaware of smok- ing’s danger addictive is surprisingly thin. particular Based on this evidentiary rec- Insolia has the strongest case because he ord, no reasonable trier of fact could find began smoking long before the first Sur- plaintiffs for the that the ordinary consum- geon report General’s on and 30 er in 1935 and in early 1950’s did not years warnings appeared before the first appreciate the health risks smoking. cigarette packs. on Whether the evidence This decision does not possi- foreclose the amounts to a mere scintilla or whether it is bility that other might prevail on enough to summary judgment overcome liability against claim the tobacco call, would be a anything close absent else. industry. Another record another case us, easy have' made it might be different. plaintiff Another however, by conceding ordinary might marshal better evidence that consumer at in question the time knew haze of companies’ the.tobacco propaganda was habit-forming. One of obscured whatever health hazards were proposed the defendants’ findings of fact known to the average consumer. We ex- the district court was that “[t]he reject plicitly industry’s invita- American long has had the common knowl- tion to declare that cigarettes are not un- edge potential health hazards associ- reasonably dangerous. But we do agree with cigarette smoking ated and the habit- Judge with Crabb that the in this forming cigarettes.” plain- nature of case did not meet evidentiary them burden “[ajdmit response tiffs’ was to the strict claim. average American has been led to believe cigarettes merely ‘habit-forming’ question The next plain- is whether the *8 ‘addictive,’ opposed as and not un- has negligence prey tiffs’ claim also falls cigarettes highly derstood as addictive contemplation consumer test. Wisconsin drug delivery devices.” law exactly clarity is not a model of in be, might
There
well
delineating
as the
the difference between strict
argue,
se,
a
liability,
difference between a habit that
negligence per
ordinary
and
easily
can
be
and a physiological
broken
The
negligence.
explanation,
best
howev-
er,
stop.
addiction that is difficult to
But as
comes from Justice Heffernan’s concur-
noted,
LaDow,
Judge
Greiten v.
average
opinion
Crabb
the
consumer
ring
235
677,
(Wis.1975),
would not be preoccupied with the esoteric N.W.2d
683-86
which was
difference between a “habit” and an
subsequently adopted
major-
“ad-
as the court’s
Co.,
If
in Howes v. Deere &
average
diction.”
the
ity opinion
American knew
71
(Wis.1976).
268,
76,
habit-forming,
was
the
Wis.2d
238 N.W.2d
80
though it is
product even
Sciano,
of a
design
Dippel
Interpreting
in the 402A
(1967),
unreasonably dangerous
Justice
155 N.W.2d
Wis.2d
the
year
recently as last
Id. As
of strict
sense.”
finding
said
Heffernan
under,
this
affirmed
Supreme Court
of Section Wisconsin
the standards
liability
Corp., Wis.2d
Sharp v. Case
per
position.
negligence
equivalent
402A is
(Wis.1999).
387-88
Negli
595 N.W.2d
Greiten,
at 684.
N.W.2d
se.
recover
plaintiff
a
allows
per se
gence
is whether
for us
issue
unduly burden
The
or
impossible
where it is
go to a
claim should
negligence
plaintiffs’
acted
defendant
that' the
prove
some
contem
the consumer
jury,
though
even
plaintiff need
Id. The
negligently.
their
402A doomed
test of Section
plation
Instead,
negligence
under
prove fault.
plaintiffs,
The
natu
liability claim.
strict
only prove
need
plaintiff
theory, the
per se
negli
say yes, arguing
rally,
product
defective
dangerously
the defen
around
claim revolves
gence
The focus in
harm. Id.
685.
caused
foreseeably
creating
conduct in
dants’
the condition
per se is on
negligence
say
product. The defendants
hazardous
i.e.,
of the defen
the results
product,
no,
negligence
characterizing
plaintiffs’
2,n.
686.
Id. at 685
actions.
dant’s
of their
version
claim as a warmed-over
ordinary negligence,
The focus in
catego
liability
Judge Crabb
claim.
strict
hand,
on how the defendant
other
is
on the
claim a
plaintiffs’ negligence
as
rized the
i.e., on the defen
product,
created the
components
“hybrid” that combined
final result.
attaining
conduct
dant’s
unreasonably
liability (cigarettes
prove fault.
Id. at
plaintiff
Id. The
must
and
are addictive
because
dangerous
prove that
plaintiff must
686.
cancer)
negli
components of
with
cause
ordinary care
failed to exercise
defendant
(the
making
knew when
defendants
gence
harm.
Id.
failure
that this
caused
and
product
cigarettes that
selling
at 684-85.
placed the
dangerous). This combination
short,
per se
about
negligence
per se
negligence
claim in the
plaintiffs’
effect,
negligence is about conduct
while
court,
to the district
category, according
Negligence
effect.
leading to that
Howes,
238 N.W.2d
citing
—unlike
71 Wis.2d
proving fore
requires
per
negligence
governed
Negligence per
se—
se
76.
per
Conversely, negligence
seeability.
402A,
defendants
which shields
Section
proving
negligence requires
se—unlike
un
ordinary
if
consumer
liability
—
from
unreasonably danger
product was
that the
risks,
thus the
product’s
derstood the
ous.
se) claim fell
(per
plaintiffs’ negligence
their strict
as
liabili
down the same chute
for a defendant
be
possible
It is
ty claim.
per
“If
negligent
se.
negligent
both
in a defec
ordinary care results
the lack of
portion of the
this
disagree
We
with
prod
true that the
design,
tive
it is indeed
thoughtful analysis
this
court’s
district
unreasonably dangerous
may
be
uct
well
First, though closely related
case.
difficult
Dippel
v. Sciano....
even in the sense
claim,
to the strict
proves .negligence
plaintiff
Where.
—in
own. The
claim stands on its
negligence
case,
ordinary care
the lack of
claim revolves around
plaintiffs’ negligence
nois
doubt that
design
product
of a
—there
produc-
conduct
companies’
evept
in the
may
recovery
there
plaintiffs contend that
ing cigarettes.
*9
unreasonably
in an
design
defective
results
market-
manufacturing,
designing,
while
at 685.
dangerous product.” Id.
the defendants
selling cigarettes,
and
ing,
cigarettes were addic-
foresee that
could
possible for
defendant
It also is
ar-
plaintiffs
and cause cancer.
per se.
tive
negligent
negligent,
to
prod-
with the
forward
gue
going
recovery
negligent
for the
may be
“[T]here
despite
standable,
uct
knowledge,
the tobacco
cousins,
since the two are close
duty
twins,
companies
ordinary
breached their
if
identical
under Wisconsin law.
and
negligence.
care
thus are liable for
But nowhere does Howes transform the
negligence
Their
theory that
the defen- plaintiffs’ negligence claim
negli-
into a
dants were at fault during
process
the
is gence per se claim. Throughout
opin-
the
claim
independent
liability
of their strict
plaintiffs’
ion the
negligence claim is con-
regarding the final result.
sistently called a “negligence” claim. The
Second,
if
former smokers’
plaintiffs’
even
claim of
negligence
negligent design
and manufacture in
ingredients
claim contains
of strict
this case is
liability,
analogous
to
plaintiffs’
claim,
we
Howes’
any
negligence
fail
see
mandate Howes that
not to their strict liability
a claim
such
must be
claim. As we
negligence
treated as
it,
read
nothing in
per
requires
Howes
catego-
se. The
alleged
in Howes
rizing the former
smokers’
negligence
negligence
liability:
and strict
negligence
claim as a negligence per se claim.
product
designed,
how
was
manufac-
tured,
marketed;
be-
Perhaps the district court’s conclusion
product
cause
allegedly
unreason-
that Howes
refashioned
neg-
ably dangerous. 238
N.W.2d
78.
ligence claim into negligence per se was
crafting
special
verdict and instruc-
upon
based
the following passage:
trial,
at the close of
tions
the court forced
LaDow,
Greiten
supra,
emphasizes
the plaintiffs to choose between their neg-
that when the
upon
claim based
negli-
ligence and' strict liability theories.
Id. at
gence, it is necessary
prove
what the
78-79.
with strict
went
lia-
seller or
do;
manufacturer did or did not
and lost.
Id. at
bility
79. The Wisconsin
that there was a
of the duty
breach
reversed,
Supreme Court
saying that the
ordinary care and that the element of
trial court should not automatically have
foreseeability was encompassed as an
required
to elect between the
element
proof.
It
pointed
was also
two theories because sometimes the sub-
if
proof
out
such
demonstrated a defec-
of both
jury
mission
theories to the
tive
unreasonably
condition
dangerous
appropriate. Id.
consumer,,
to the user or
product
n
might well fall
negligence per
within the
opinion,
Over the course of the
what
se doctrine of
supra.
Dippel,
initially
Howes
terms
“strict
liability”
claim
Howes,
becomes referred to as “negligence
606 plain- to the our attention now shift of We particulars the allege impossible to was companies the tobacco claims that tiffs’ Dip- that intended It not was negligence. and mis- fraudulently conceal to conspired actions.” negligence to transplanted pel be In smoking. of the health risks represent Consequently, Greiten, at 684. 235 N.W.2d that liability claim strict to their contrast court’s as- district the part ways with we ge- only what the determining necessitated former the places that Howes sessment knew, the smoker average beginning neric with- “squarely claims negligence smokers’ proof that require fraud plaintiffs’ claims category.” se per negligence in the upon alleged the relied they specifically that a puzzling defendant may seem It they specifically misrepresentation or-that designing a for negligent be found could con- fraudulent alleged of victims the were unrea- not found end is that the product plaintiffs the none of Because cealment. that point out Critics sonably dangerous. from the single a statement recall could the jury a to find requires “negligence of smok- the effects industry about risk of an unreasonable creates product origi- their stamped out Judge Crabb ing, consumer; jury if finds the harm reli- proof lack of claims for of nal fraud an un- present not product does that the ance and causation. in the strict or defect danger reasonable mo- summary judgnent briefing sense, jury can- then the liability products to tion, however, attempted the smokers negligent be- find the manufacturer not di- they were their claim transform find an logically jury cannot cause pub- that the into claim rectly defrauded a to the consumer of harm unreasonable risk community was defrauded and lic health conduct.” by the manufacturer’s created as a particular suffered result. Supporters at 388. Sharp, 595 N.W.2d con- makers theory is that cigarette defect finding that a jury’s that “a argue the addictive information about cealed danger reach- quantum a did not create nicotine, pub- consequently qualities a deciding level ing the ‘unreasonable’ recognize not un- community lic did a preclude liability claim does not strict addictive, con- smoking is recently til that could that a defect existed finding to create sequently no one tried to and that failure have been discovered recently, conse- products until cessation constituted a breach the defect discover unable to quit were quently care, ordinary there- duty of a defendant’s sooner, consequently their injuries.” Id. Puz- causing cancer were di- avoiding lung chances not, law in this is the Wisconsin zling or minished. law. uphold to and we are bound spec tenuous and Aside from the Co., F.2d Hansen v. Cessna Aircraft al link the defendants’ between ulative (7th Cir.1978). 679, 682-84 beginning leged concealment contempla- Perhaps the consumer injuries what these chain and actual liability chain, plaintiffs’ plain strict tion test did at the end of the claim, contributory negli- concept of prob into another theory new tiffs’ runs negligence plaintiff “A gence namely, will do to that it is new. lem— however, That, through us to ar complaint for his may claim. not amend generally opposition Apportioning negligence in his brief decide. guments See, e.g., Stew- Shana jury. summary judgment.” question for motion F.3d Chicago, 271 N.W.2d Wulf, City v. han art Wis.2d Cir.1996). (7th (1978). law, insist plain- The smokers matter of As theory community was public health are distinct from their negligence claims tiffs’ judgment, claims, up summary cooked on and the district their answers lurking in already the former stubbing erred out court pletho- interrogatories. Given certain judgment. summary
607
paper
this,
ra of
produced by a case like
tentional exposure” claim
plaintiffs
es-
of information in
interrogatory
bits
an
pouse.
plaintiffs
The
compare their claim
hardly provides the particularity required
battery
physical
cases which
force is
9(b).
of a fraud claim. See Fed. R.
P.
Civ.
requirement,
not a
citing 19th century
cases from
jurisdictions.
other
Common
Finally, the plaintiffs ask us to
Stratton,
wealth v.
303,
114 Mass.
305-06
recognize a tort claim of
expo
“intentional
(1873);
Monroe,
State v.
547,
28 S.E.
548
or,
sure to a hazardous substance”
alterna
(N.C.1897). But Wisconsin battery law re-
tively,
certify
issue to
Wisconsin
quires unlawful physical touching and the
Supreme Court. Federal courts are loathe
use of force or violence. Vandervelden v.
to fiddle around with state
Though
law.
Victoria,
243,
177 Wis.2d
276,
502 N.W.2d
may try
district courts
to determine how
(Wis.
1993).
278
Ct.App.
The plaintiffs
the state courts would rule on an unclear
compare their
cases,
claim to nuisance
cit-
law,
area
state
district courts are en
ing Vogel v. Grant-Lafayette Elec. Coop.,
couraged to dismiss actions based on novel
416,
(1996)
201 Wis.2d
829,
548 N.W.2d
834
state law claims. Railway
Agen
Express
(nuisance
stray
claim for
voltage injury to
cy,
Models, Ltd.,
Inc. v. Super Scale
934
cattle),
v.
Jost
Dairyland Power
(7th
135,
Cir.1991).
F.2d
138
con
When
Coop.,
647,
(1969) (nui-
172 N.W.2d
652
fronted with a state law question that
sance claim for intentional emission of haz-
go
way,
could
either
the federal courts
ardous
chemicals into air
fell on
usually choose the
interpretation
narrower
crops). But
requires
nuisance
damage to
Birchler v. Gehl
liability.
restricts
property. Vogel, 548
at 834.
N.W.2d
The
Co.,
(7th
518,
Cir.1996).
88 F.3d
521
Inno
cite
plaintiffs
smattering
other
cases
vative state law claims
brought
should be
they say
recognize similar claims.
Export
court.
Corp. v. Me
state
Afram
Co.,
Bennett v.
Larsen
681,
118 Wis.2d
348
S.A.,
tallurgiki Halyps,
1358,
772 F.2d
(1984)
N.W.2d
548
(7th
(applying pesti-
Cir.1985).
1370
cides
violation of
criminal statute is
The
say they
litigate
tried to
se);
negligence per
Brabazon v. Joannes
court,
in state
but the tobacco compa-
Co.,
Bros.
(1939)
231 Wis.
tiffs waived (1986), a number 2505, 91 L.Ed.2d plain- the Regardless, court. in the district majority ac- the conclusions their strict of the supporting scant evidence tiffs’ degree reach a fail to simply test satisfy the as clear cepts not would claim liability juror that no reasonable of such definition of certitude most favorable the under even fact, In Thus, contrary. issue is the conclude could consumer. the various of appreciation for certifi- public of and is unsuitable the state controlling not fifty Hanlon, cigarette 835. Our at risks from 186 F.3d health cation. as re- the is so indeterminate years ago moot or more renders decision subject negligence judgment the on the summary on certification make to quest extraordinarily difficult. issue. decision, the we our Recapping Affirm claim, strict on their To succeed judg- summary of grant district court’s that “the to would have show fraud, and in- liability, on strict ment fully appreci- [did not] average consumer sub- to a hazardous exposure tentional injury” associated risk the attendant ate Judge claims. We also stance AffiRM Toyota Motor v. smoking. Sumnicht with certify any issues not to decision Crabb’s 2, 338, N.W.2d Sales, 121 Wis.2d Howev- Supreme Court. to the Wisconsin standard, (1984). the central this Under summary er, grant we Reverse terms, howis general in its most question, and Re- claim negligence
judgment on
did the
long-term
to
health
detrimental
to the district
of the case
portion
MAND years ago
fifty
smoker
average beginning
appel-
proceedings.
further
court for
Cigarettes were
smoking?
cigarette
view
ap-
costs
their
recover
lants shall
as I can
as far back
“coffin nails”
called
peal.
does
remember,
certainly
but
linked to can-
they
firmly
were
mean
CUDAHY,
concurring in
Judge,
Circuit
were
ago. Cigarettes
fifty years
cer
dissenting
part.
part and
respirato-
to various
to
thought
contribute
to be
ailments,
they were believed
ry
presents an in-
majority
Although
training,1
with serious athletic
inconsistent
evi-
commentary
much
sightful
heart disease
cancer or
lung
a tie to
addressing
dence,
me in
it
to
seems
fact,
In
mind.
yet
public
sight of the demands
have lost
liability to
their best
companies did
the tobacco
know,
all
As we
summary judgment.
In
spotlight.
out of the
keep these links
that,
requires
after
judgment
summary
together
companies got
the tobacco
light
evidence in the
most
viewing the
“Frank State-
notorious
publish
party,
there
nonmoving
favorable to
“there is
stated
ment” which
fact. See
issues of material
genuine
are no
smoking is one
cigarette
317, 322,
proof
no
Catrett,
477 U.S.
Corp.
Celotex
We be-
lung
(1986).
[of
cancer]....
causes
L.Ed.2d 265
106 S.Ct.
injuri-
are not
make
products
we
lieve
Further,
inappropri-
summary judgment is
Ex.
T.
14145.2
ous to health.”
that a reason-
is such
“if
evidence
ate
from three
to the record come
certainly
2. Citations
advertising
tried to
cigarette
1. But
(1)
"A.
appendix, cited as
appellants'
sources:
App.
opposite.
example, in
convey
For
(2)
supplemental
appellee's
[page];”
at
Company ran the fol-
Tobacco
the American
[page];” or
appendix,
(3)
“Supp.App.
as
cited
lowing
Gifford in Ac-
"Frank
advertisement:
ex-
plaintiffs' trial
been
what would have
halfback was
young N.Y. Giant
... The
tion
hibits,
trial
All
[number].”
as "T. Ex.
cited
Lucky
top
Strike
already a
star —and
in the record
found
can be
exhibits cited
(Summary
Supp.App. at 61
See
smoker."
R.277,
unless
part of Exhibit A
attached as
Pollay).
Testimony
W.
Expected
of Richard
specified.
otherwise
Tobacco
patted
Institute
itself on the back
Possibly things are that simple, but it is
for this disinformation
in a
campaign
mem-
entirely
also
possible that
the ordinary
orandum, calling
“brilliantly
it
conceived beginning smoker associated “habit form-
“creating
executed” and
doubt about
ing” with
yen
for bon-bons, pistachio
charge
actually
without
denying
cups
nuts or
of coffee but
thought
her-
Thus,
it.” T. Ex.
it
20987.
seems that the
oin and cocaine when “addiction” was men-
defendants tried
keep
the full risks of
tioned. The unbreakable bondage to hard
cancer
public.
from the
At earlier stages
drugs was
probably most minds of quite
*13
in this litigation, plaintiffs argued that be-
a different order than everyday habits—
ginning
did not
smokers
fully appreciate
at least a reasonable jury could so con-
general
the
knowing that
clude.
plaintiffs
provide
did
some evi-
risks —
n dence
likely
would
make a person short
that
beginning smokers were un-
of breath or cough-prone is far short of
aware that cigarettes
addictive,3 see,
were
fully appreciating that smoking could
e.g.,
(Affidavit
like-
Supp.App. at 58
of Dr. John
ly be fatal.
Greist)
But the majority
(“I
asserts that H.
have found that most
the issues of
appreciation
health-risk
have
[smokers] were unaware of the highly ad-
been narrowed to knowledge of addictive- dictive nature
cigarette
of
smoke until af-
ness. Based
arguments
on the
before this
ter
addicted.”);
are
T. Ex. 13677
panel,
focus,
(Brown
I can
this
accept
but I do not
& Williamson marketing memo-
believe
limiting
inquiry
the
to
1978)
aware-
randum from
(“Very few customers
ness of
gets
addictiveness
us closer to are aware of the
nicotine,
effects of
i.e., its
granting summary judgment.
addictive nature and that nicotine is a poi-
son.”);
12408(R.J.
T. Ex.
Reynolds plan-
In
majority’s view,
the
key
the
part of
memorandum,
ning
entitled “The Nature
the
analysis involves the
of
Tobacco Business and the Crucial
question
beginning
whether
Nicotine,”
1972) (“[Nic-
Role of
written in
(whether “teenagers” or “adults” —I’ll dis-
and secondary
otine
physical and manipu-
moment)
cuss this in a
regarded cigarette
gratifications
lative
are unknown and/or
smoking as either habit forming or addic-
largely unexplained to the [beginning
tive—and whether
these two attributes
smoker]. He does not start smoking to
synonyms
in the mind of
average
obtain undefined physiological gratifica-
.beginning smoker. The majority answers
reliefs,
tions or
and certainly he does not
question
this
by first noting
start smoking to satisfy a non-existent
concession that
American saw
craving
nicotine.”),
for
and it seems to me
cigarettes as “habit forming”
quality
—a
the state of mind of the beginning
by
seen
quite
as
distinguish-
subject
smoker on this
from
able from “addictive.” The majority then
is not
something
lends
easily
itself
makes this
concession
lever for sum-
summary judgment
if the evidence
mary judgment by
—even
describing the differ-
offered
the plaintiffs is not overwhelm-
ence between a “habit” and an “addiction”
ingly persuasive.
as “esoteric.”
majority
regards
also
the difference between
forming”
“habit
The majority points to no evidence that
and
as “a
“addictive”
semantical distinc-
suggests that this
distinc-
habit/addiction
tion beyond the grasp of
Average
our
“beyond
tion was
the grasp of
Average
our
Joe.”
Joe.”
making
assumption in favor
3. The
provided
also
some evidence
the pharmacological
upon
effect of smoke
cigarette
manufacturers were well-aware
smoker.”);
body
(internal
of the
T. Ex. 259
of
quality
cigarettes
addictive
but failed
by general
memorandum
counsel for Brown
See,
to share it
public.
e.g.,
with the
T. Ex.
Williamson, 1963) ("[NJicotine
&
is addictive.
(report
Philip
Morris Board of Di-
are, then,
We
selling
the business of
... an
1969) (''[T]he
rectors
explanation
ultimate
drug.”).
addictive
perpetuated cigarette
for the
habit resided in
judgment based
summary
grant
allows
defendants,
majority has
a smoker is
thesis that such
of the
on the
sagacity
part
demeaned
unfairly
only
the dan-
ignored
about
has
also
older
better-informed
Joe
proverbial
summary judgment
addictiveness
gers
mandate
inferences
“all reasonable
Thus,
sum-
path
court draw
towards
cigarettes.
Anderson,
nonmoving party.”
of the
favor
by adopt-
can
smoothed
judgment
mary
Far from
ty hasty, and wrong, to determine aas
matter of law the “beginning smoker”
must mean the “adult beginning smoker.” reasons,
For these I respectfully dissent
from the majority’s analysis and conclu-
sions respecting strict liability.
UNITED America, STATES of
Plaintiff-Appellee, WILLIAMS,
Kevin also known as
Twin, Defendant-Appellant.
No. 99-4265.
United States Court Appeals,
Seventh Circuit.
Argued May
Decided June