*1 Session, Hearings ana, Highway, Congress, located on Airline a main 1st on Rouge artery Rights, II, p. 1448. between Baton New Civil Part Orleans, Louisiana, operating eleven ma- message Again, rights on his civil jor facilities, ten of amusement 19, 1963, June the President said: were manufactured outside State again of recent weeks have “Events Louisiana, which its facilities advertised Negro deeply our underlined how citi- radio television and over the solicited being injustice resent arbi- zens public generally, of the the business with trarily equal denied access those no restriction to race or interstate facilities and accommodations which law, travel, can, with the sanction open pub- are otherwise to the solely Negroes refuse service because lic.” of their race color. Representa- United House of States holding completely ignores a Such a tives, Judiciary, Committee 88th on strong and, me, history conclusive Congress, Session, Hearings 1st Congressional general Executive Rights, II, p. Civil Part 1447. purpose tent and to the effect injustice, To correct President enactment of Title II: emphasized that: possible “Would make it to remove “Federal action needed now to secure daily affront and humiliation in- right of all citizens to the full discriminatory volved denials ac- enjoyment of all facilities which are open ostensibly cess to facilities open general public.” general public.”1 Representa- United States House of respectfully I dissent. tives, Judiciary, Committee on the 88th Hearings Congress, Session, 1st Rights, II, p.

Civil 1448. Part

And, again, President, in submit-

ting Congress part of the Civil Rights scrutiny Act here under explaining purpose doing so, stat- Mary Jr., Green, GREEN and ed: Edwin Appellants, reasons, today propos- I “For these am ing, Rights Act Civil COMPANY, AMERICAN TOBACCO 1963, provision guarantee all citi- Appellee. equal zens access the services and restaurants, hotels, places

facilities of No. 22435. amusement, and retail establish- Appeals United States Court of ments.” Fifth Circuit. Representa- United States House of 24, Jan. 1968. tives, Judiciary, Committee 88th Rehearing Congress, Hearings En Banc Session, 1st Granted Rights, Civil II, p. 25, Part March 1448. 1968.

The effect of the narrow construction

as made both the district court and of this Court —this narrow being

construction based an “in- legislative history ju-

conclusive” to —is

dicially determine and hold that park Rouge,

amusement in Baton Louisi- Judiciary 1. Statement made House Representatives Report No. 88th reporting Committee on Title II Congress, Session, I, p. 1st Part bill on November 1963. U.S. House

Notwithstanding finding, the ver- because, dict went to the defendant response interrogatory, to another further found that on or February the defendant Tobacco Hastings, Irma Robbins Lawrence V. Company application the reasonable Miami, Fla., appellants. Feder, *3 foresight human of skill and could not Miami, Fla., Bradford, Edward A. Lee Lucky have known users that of Strike Neaher, City, appellee. York for R. New cigarettes, Green, such as Mr. PHILLIPS,* COLEMAN and Before thereby put danger contracting of lung cancer. Judges. SIMPSON, Circuit course, appealed. Of On 2,May 1962, Cir., 70, panel 304 F.2d a Judge: COLEMAN, Circuit composed Judges Rives, of this Court of appeal from a This is verdict Cameron, and Griffin Bell1 affirmed the judgment in the for defendant judgment cigarette of favor manu- implied on war- second trial suit facturer. In that result jury finding ranty, grounded prior on a jury finding on turned that there was plaintiff’s in the same case that decedent developed foresight no human skill or cigar- smoking died of and that cancer which could have afforded the manufac- a For the sec- ettes was cause thereof. knowledge turer a of the harmful effects. time, and remand for a ond we reverse Judge dissented, quite cogently Cameron new trial. pointing that even out for of im- breach years ago, December, Nearly ten plied warranty decision amounted to brought 1957, Edwin Sr. suit Green, holding a exercise of reasonable against Company, Tobacco American Company on care of Tobacco claiming that he had incurred can- liability. would exonerate it from smoking cer as result of the defendant’s a petition rehearing, On for decided cigarettes. Lucky product, Strike 20, 1962, 85, page June 304 F.2d at re- filing About two after months hearing granted to the extent of 1958, suit, February 25, on Mr. Green certifying Supreme of Flor- died. His administrator was substituted following question: ida2 the plaintiff and his also filed suit widow Wrongful impose under the Florida Death Stat- “Does of law Florida liability, cig- On two a ute. theories breach manufacturer and distributor negligence, implied warranty liability, arettes absolute as for breach implied warranty, cases after consolidation tried for death caused cigarettes jury, by using for returned verdicts such from 1924 or answer, however, February 1, 1956, the defendant. 1925 until the can- interrogatories having developed prior certain under submitted cer to Febru- 49(b), 1, ary Rule Pro- occurring Federal Rules Civil 1956 and the death cedure, U.S.C.A., February 25, in this 1958, when the defend- first found that Mr. Green ant manufacturer and distributor could primary on, to, lung, 1, 1956, cancer of February application was the cause or one the causes of the reasonable of human smoking death, Lucky foresight, skill Strike have known that cigarettes cigarettes proximate cause or users of such would be en- dangered proximate of the causes cancer. the inhalation of the main * Circuit, sitting by designa- 25.031, Statutes, 2. 1959, Of the Tenth § Florida F.S.A. tion. Court authorized to receive and answer certificates as to law state Judge retired Rives has since from act appellate from federal courts. Judge April ive service Cameron died 2, 1964. “The contention that wholesome- from such smoke stream lung?” determined ness of a should be contracting other than its actual standard 170]. S.2d at [154 consumption, safety human when for be noted It is to be * supplied purpose, impose gins of Florida law “Does the persuaded one which we [is] distributor manufacturer on a in the decided cases.” no foundation liability, breach absolute [Again emphasis ours]. nearly It was [ ?]”. again Judge later, with Six months year before dissenting, held this Court Cameron responded [154 in a 5-2 decision judgment plain- it could not enter for the The Court 1963]. June liability, 325 F.2d tiffs concluded: 673, that: the reason *4 does question framed thus “That the rule the “The Florida Court’s present our consideration for only cigarettes ‘reason- that a must be which the issue of whether ably fit have a particular and wholesome’ and this in caused a cancer or for un- ‘reasonable fitness human of law as a matter stance were consumption’.” the in Florida under merchantable request conditions, a nor stated does it deference, With we feel that view warranty scope im- the of statement of language im- the italicized overlooked case. plied in of this circumstance the mediately above but the views instead, is, inquiry lim- The us before us, panel binding upon of Florida law ited to the status course, developments of it not for were liability imposition of for breach of ‘as later to be discussed. warranty’ implied the when manufac- Appeals pointed The Court of further by the or ‘could not turer warrantor on trial of in out the first the case that application skill human reasonable of jury, the the District Court the re- foresight, have the and known of charged quest plaintiffs, the of had been danger’.” [emphasis ours] products “The that manufacturer proceeded Supreme Court The Florida public are for sale which offered to the lan- state in clear and unmistakable original package their for con- human guage: impliedly sumption or use warrants that “That or seller’s a manufacturer’s reasonably or its are wholesome knowledge opportunity for or actual purpose fit for the for which are knowledge a unwhole- defective or “reasonably” adverb sold The wholly some condition is irrelevant modify or fit” “wholesome had been liability theory implied on the inserted in instruction at consent the the warranty, question the certified plaintiffs. the Panel af- must therefore be answered the said, part of the then “As a law already indicated, do As firmative. parties therefore, are, the case bound inquiry ei- the in terms not feel that scope implied warranty as so the the response requests a on ulti- ther the District defined Court”. liability case mate issue of disposi- requires comment by the This was followed crucial deter- tion issues between the court mination, page 677, F.2d at that relating under law finding jury had not made sufficient scope war- and breach is, question reasonableness, that on the ranty product supplied hu- cigarettes not the to whether or were reasonably consumption man shall be “reasonably and wholesome” fit fit wholesome fore- therefore the defendant was purpose.” developing from issue closed however, say, another trial. on to went

1Q1 significant for, thereafter, The date then We directed: May 5, 1965, in the case of McLeod parties nonetheless “[T]he Company, v. W. S. Merrell Division of jury’s bound answers Richardson-Merrell, Inc., 174 So.2d interrogatories may not written [and] Court of Florida stated that relitigate already de- the issues thus Company, Green v. American Tobacco cig- smoking Lucky Strike [that cided Fla., 154 So.2d was: of the causes of the arettes was one against “A suit cancer and that manufacturer. It commodity involved a under death] causes was avail- guise presenting indiscriminately public gen- able evidence to the erally. reasonableness, is, Green can be summarized as a cigarettes applied whether reason- case rule of absolute or ably fit and strict wholesome.” the manufacturer commodity placed who chan- Judge concurring Cameron, consumption nels of trade dissentiiig part, was of the view public generally”. “Was that purchased by do him would not [Green] I. harm” should not directly nowWe come required to show “that Judgment of whether under review were not fit and wholesome *5 is to be affirmed or reversed. general public”. for the specifications We are confronted with tell, parties As far as we can the made the District erred in Court the fol- direct, no further to obtain the effort lowing respects: positive answer of the of denying 1. In Plaintiff’s Motion ques- Florida to that of the for Directed Verdict on the Issue of propounded inquiry, tion which had the Liability made at close of the the de- impose “Does the law of Florida on a fendant’s case and renewed the cigar- manufacturer and distributor close of all the evidence as the evidence liability, ettes absolute as for breach conclusively established defendant’s * * * implied warranty [?]”. implied warranty breach of of reason- might The well have been consumption for able fitness human ** * encouraged to do so view of lan- the and use. guage Florida Court had added charging jury 2. In a safety to the effect that actual human for implied warranty breach of of reason- ' consumption was the standard consumption able fitness for human determination the wholesomeness a only cig- and use occurs if defendant’s product. endanger “any important arettes num- cigarette any respon- ber of foregoing The result of the was that smokers — * * large segment sible went the case second number — any responsible segment general which, of the pursuant opinion of 325 ** * public as to the threat of (and any F.2d 673 the sole factor cancer,” lung charge surprise such therewith) not inconsistent was wheth- having effectively directed a verdict er the used Mr. Green were * * for defendant *. fit and wholesome for human use, being parties expressly com- permitting expert 3. In defendant’s attempt relitigate manded testify they witnesses do already established facts that Green died lung know the cause of cancer and that lung and that nobody lung knows the cause can- cause of that cancer. *. cer again excluding 4. verdict certain kinds of evidence, e., Company. judgment testimony concerning Tobacco there- i. (1) experimentation (2) 27, dated November 1964. animal 102 large —any responsible Surgeon ‘Report General’s number— it segment smokers—then of those au- other scientific Committee’ implied war- would be breach ranty done as work thorities well ** imposed fitness, persons *. other testifier with who sells the manufacturer dispose of minor matters shall We not, cigarettes. did there If first. * warranty *. be no breach view, trial court In our coun- [Plaintiffs’ “MR. HASTINGS opportunity to offer an both sides denied May approach the bench ?” : sel] experiments on of court evidence of out (Side of the out Bar Conference erroneous, was not and this animals hearing jury) of the Employers Liability Assurance

Bish v. 62; 1956, Corp., Cir., 236 Trav F.2d not like Counsel do “THE COURT: Company Wilkes, 5 elers Insurance They ‘important number’. the words Cir., 1935, 701. F.2d bit too definite. that it a little think endanger any respon- I mean does it commit re did the Court Neither segment public. sible declaring inadmissible versible error in cigarette smoking endanger them Does surgeon Bish, supra; generals report, If cancer? the threat as to Fla.App., 1966, Clement, 184 So. Rice v. does, is vio- 2d lated.” give course, may expert an Of foregoing plain quite it is From of ex results based object plaintiffs’ counsel did periments by and in connec to us others language supplemental may experiments, such describe tion charge, not make content Ins. did Mut. Life but he Woelfle v. Connecticut 418; objection Co., of record. Ob Cir., Cf. a matter F.2d States, viously, attempted Paper then Co. v. United International *6 charge Cir., the the so as to eliminate F.2d have amend objection, We Thereafter, previously acceptance was. indicated our of whatever it exception. may As experts offered no further view that counsel language important amended, the as to cross the use of scientific examined segments was, very large they in ef works relied on the numbers unless any fect, Thus, if there was work which the cross examiner wishes withdrawn. supplemental use, Bish, supra. in the amended to error whole, charge, we as a viewed giving reverse cannot We doubt, certainly plain was error. charge Specification in described Therefore, exceptions in absence of giving supplemental 2. The No. con properly we do not now reserved charge by controversy after was caused it, Fed.R.Civ.P., 28 U.S. Rule 51 sider jury had retired whether to C.A. inadvertently had used the word “findings” instead of [of “admissions” any ap Nor find merit do we in the first Out of a trial]. pellants’ contention were en that any up pos desire to clear commendable titled to a verdict on the directed point, the of error on this sible chance argued liability. de that of It jury called had the back into that fendant’s was valueless and evidence courtroom, place: which this took after panel now overrule should * * * I told “THE also of COURT: decision constituted law Going you question that was general public case second trial. say danger simply matter, of we common heart retry distinguished case Mr. had to from Green. the District Court from your And he had determination. under directions received That is for endanger any cigarettes did The value the evidence Court. if these reasonably cigarette drawn important all inferences to be smokers number therefrom, the date of that DR. HOCKETT: as of particular to decide. for the you “Q. Doctor, do know the cause body? of cancer the human a forensic battle The second trial testimony plaintiffs’ No, sir, experts. A. I not.” The do cig- expert tended show witnesses objection No was made this testi- smoking approximately causes arette mony. heavy the witnesses defined [as 10% DR. FLIPSE: cigarette die of smokers the term] “Q. you lung Do know the cause of twenty years lung cancer after about cancer? smoking. A. No. proof Appellee met this the follow- Q. you any Do think there is causal ing manner: smoking connection between lung Moran testified that his studies Dr. cancer? attempted find and research he Personally A. I don’t believe there lung but, “I cause of cancer don’t out the is; but that is a I point To this know the cause it”. cannot decide because we don’t objection. Dr. there was no Moran was know the cause.” he had reasonable med- then asked if following exchange then occurred: or not ical as to whether many “[DR. FLIPSE] We know smoking any bearing cigarettes has go the basal conditions with a lung plaintiffs’ cancer. The ob- change cancer, but don’t know jection was overruled. witness then the cause. testified: Q. Sir, you name some of the “Q. you say Can with reasonable things working that medicine is certainty smoking medical try on now to to determine if lung cause of ais cause or is related public? beginning of cancer? No,

A. sir. MR. HASTINGS: Q. you Do know what cause does object. We rep- One of the bases if cancer or cancer and, too, etitious this is not related body other of a hu- whether are or are not the being? man reason —are fit for human No, *7 consumption. A. sir.” by testimony: This was followed other THE COURT: Doctor, DR. L. only speak T. JACKSON: your as to own knowledge, you what know. He “Q. is not you field, Since are in the cancer asking you you suspect what Doctor, you but what do know the cause you know. of cancer? A. ^[******] I cer. do not know the cause can- is that Nobody knows the I believe right? you answered cause cancer; of it. Q. you any Do know of definite link THE WITNESS: lung smoking between and can- Nobody knows the cause. people cer who smoke ? THE COURT: A. I do not know actual You mean what he knows or what proven link fundamental between suspects he is the cause of cancer cigarettes lung cancer upon experience. based his medical * * *» MR. BRADFORD: objection No was made to this testi- mony. question. Answer that then it cer is unknown cannot be said question. read the Please A. cigarettes that a cause [as cancer] THE COURT: reasonably fit and wholesome any conclusion you arrived Have general public. consumption knowledge as your upon medical based juries may feel be re- We do not that of cancer? suspected causes quired to return verdicts choices be- THE WITNESS: mutually impossible propositions. tween not.” I have Although jury in this second trial unalterably bound, informed, so Flipse on cross was Finally testified Dr. finding predecessor of its that

examination, had indeed been a cause of the cancer say it due to some- cannot “We smoking ** death Mr. Green and that Basically, thing *. inhale we Lucky had been one of Strike causes it.” know what we don’t proximate cancer, causes of that it attorney rested, defense When repeatedly experts it heard from following mo- made for the Greens province believing, had the inherent tion: chose, possibly if it that such could not “MR. HASTINGS: be none true since know the cause recess, Honor, we before Your and, therefore, prove cancer cannot to strike the testi- to move would like cause. That was not the standard Burford, Flipse, Dr. mony Dr. of Dr. directed this Court that case gave opin- Jackson, who and Dr. Little express should retried. There di- no re- there was to the effect that ions rection that the cause of must death smoking lationship and can- between relitigated in the not be course of set- Fifth Circuit that cer on basis tling safety question of reasonable clearly ad- evidence stated general public. for use regard assume this must duced with fairness, recog- In all we must likewise conclusively established the fact distressing equally predicament nize the Green, man, died had Edwin judge. of the trial blush he At the first a result cancer presented previously with the deter- smoking; therefore we feel fact mined that deceased had died from testimony by these witnesses product, then he was use considered. should not be preside determination told over the whether nevertheless was THE COURT: such a safe for Denied.” public. recalled, ap- will It now dilemma, The answer our it, emphasize propriate that we should judgment, appellee have was that could expressly found proof plaintiffs’ rebutted as to the inci- smoking Lucky Strike cigarette lung cancer in dence of smokers proximate causes of was one testimony categori- presenting without caused the cancer thus cally contradictory to had al- that which proximate was, turn, causes one of the *8 ready been found as a fact. recall the em- likewise of death. We reasons, judgment explicit of this Court must phatic, instructions this For these par- new it the case that for a when remanded remanded reversed and findings by these were bound ties trial. relitigate parties could II. already under decided issues thus here. not end The matter does guise presenting evidence on the of reasonableness. some material In the absence law, controlling occur change state says Appellee this line of deci ring former of our testimony since date been admissible should have 673, 1963, 11, sion, 325 F.2d December if cause of can- for the reason that

105 * purpose supplied for re- remand of our former the directions persuaded has one which are have we [is] case and this main the law of in the cases.” no foundation remand. decided second on the adhered to to be hand, been if there other On the emphasize the words “actual We must controlling state change in the material passage. safety” appearing in the above clarifying law, either enactment Then, already pointed page out, 101 as follow interpretation, bound we are ante, after the second trial [the below v. Vandenbark now exists. the law it as trial now under Su- consideration] 538, Co., 61 311 U.S. Glass Owens-Illinois Florida, preme in McLeod v. W. Court of Huddle 347, (1941); L.Ed. 327 85 S.Ct. Co., of Richardson-Mer- S. Merrell Div. 232, 64 Dwyer, S.Ct. 322 U.S. ston v. rell, Inc., May 1965, supra, 5, took occa- (1944); v. 1015, L.Ed. 1246 Jones 88 explain meant what it had sion 1955, Cir., 225 F.2d Schellenberger, 7 Company, v. American Tobacco Green 989, denied, 784, S.Ct. 76 350 U.S. cert. Fla., 154 It said that on the So.2d (1956). 476, 855 100 L.Ed. applied it rule of this case had facts appeal argument After (see liability quota- absolute or strict file, we have parties requested the to). tion alluded received, briefs change has, indeed, taken such a Supreme whether 28, 1965, April On place. Court of Florida decided the case Drugs, Inc., Foley 177 So.2d v. Weaver longer remains There no product a bottle 221. The accused duty power doubt reducing pills. When contained entry proper to direct cases Court open attempted prospective user Neely K. judgment v., Martin n. v. of a o. broke, by unscrewing top it the bottle 317, Inc., Co., 87 Eby U.S. 386 Constro. right fragmented, her and thus lacerated (1967). 1072, 18 75 L.Ed.2d S.Ct. brought negligence Suit was wrist. referred, page have heretofore We warranty. and breach language 100, imp Supreme Court that a held retailer’s our answered Florida when it lied-warranty food did as follows: certified question, not extend to this container. decision, arriving how at this course of the wholesome- “The contention referring previously ever, cases be determined should ness meat, canned decided as to tinned its actual than other standard safety consumption, sardines,3 when human stated the Court Cudahy Packing Co., 3. Blanton 154 Fla. wholesome- v. able fitness” or “reasonable 872, (1944) ; 19 So.2d 313 Sencer v. ness”. Market, 1950). applied, (Fla., Carl’s 45 So.2d 671 These limitations have been products however, Other Florida decisions as to intended for consumption, v. use are : human in Wisner intended human Goodyear Co., Fla.App., (1) transfusions, Tire and Rubber Human blood used in Community involving pipe Bank, (1964) v. 167 So.2d 254 Russell Blood sprinkling sys- (Fla.1966) ; Community Blood residential lawn tems, Renninger (Fla. Russell, v. Dair- Foremost Bank v. 196 So.2d ies, Inc., (Fla.App.1965) 1967). 171 So.2d 602 (2) Candy Wagner Mars, Inc., bar, cited the text. (Fla.App.1964). think the Florida We cases 166 So.2d 673 agreement (3) drinks, with what Miami Coca Cola Bot Soft tling Todd, (Fla. of Texas held McKisson v. Sales Af- Co. v. 101 So.2d filiates, Inc., 7, 1958). 416 S.W.2d June (4) food, that “no sound distinction can be Restaurant Cliett v. Lauder *9 eye-wash Corp., (Fla. drawn between the use of an Biltmore 39 dale So.2d 476 impairs destroys 1949). solution that or vision and products a foodstuff which causes illness”. or We note that as to food Community Bank, Russell generally v. Blood above for human use the Flor- tended cited, is that effect. to ida cases make no reference to “reason- 106 purpose principle that under the previously intended and affirmed

twice by rep- personal facts found “ * resentative widow are entitled to and or of food to items absolutely liable hold the manufacturer original package products in the other injuries already by prior found for human for for sale offered which are by him. to have been sustained per- generally, a consumption or use reversing being so, re- purchases items in to such This addition son who judgment remanding implied express con- a new or for liance they are trial District we must also direct the or assurance dition judgment plain- or the uses Court to enter for the and fit for wholesome purposes they are adver- on the tiffs and to sub- for which injured damages jury. sold, mit the issue of to another and who or tised or the unwholesome result remanded, Reversed and with direc- therein substances deleterious tions. buyer, may hold unknown retailer or the SIMPSON, Judge (dissent- the manufacturer either Circuit damages injuries sustained for ing) liable : theory by him, on the deference, I With dissent from the ma or fitness of wholesomeness jority opinion. I view second pur- product for the or article such fairly having of this case as been con offered poses it was for which ducted under the laid down standards public”. remand, this Court Green v. American years Tobacco, Further, our Foley after two 325 F.2d 673. I decided can was perceive “cogent directions no reason” 1—either remand change thing controlling significant that as law or other— case. The gener- reversing prior panel human for for intended Foley anywhere directing nor ally McLeod that the court below neither requirement judgment enter n. for limited o. v. modified or liability. “reasonable the issue of or wholesomeness fitness wholesomeness”. or “reasonable fitness” I. 1965, 9, February the District On I understand I Part Florida, Dis Appeal Third judge to hold the trial in error Dairies, Renninger Foremost trict, v. refusing testimony to strike denied, 602, Florida Inc., cert. 171 So.2d expert quoted the defendant’s witnesses 480, Court, decided 177 So.2d pages opinion, 103 and 104 of the Inc., Dairies, in Renninger Foremost v. they effect that did volving While milk bottle. a defective cancer, know the cause and that limita fitness imposing reasonable did not con- believe there was a causal object not intended tion to this smoking lung nection can- between consumption, neverthe court human testimony opened cer. This line foregoing pas quoted verbatim less testimony up response and in direct Foley. sage from plaintiffs’ experts to the effect decisions, cigarette smoking lung light cancer causes of these In the smoking popula- opin in a subsequent our former sizeable rendered ion, heavy tion, that one out of nine or ten in no substantial now left arewe cigarette lung cancer, de die of law the smokers that under doubt 30,000 35,000 yearly rely im deaths entitled cedent Lucky are caused United States Strike plied assurance smoking by cigarette caused fit wholesome 1536; Casualty 1 Lincoln National Life L.Ed.2d Co. Mutual 1. Lumbermens Roosth, Cir.1962, 763; Cir.1963, 306 Insurance Co. v. Wright, F.2d 759 F.2d 110. S.Ct. U.S. denied 354 cert. *10 lung cigarettes reasonably greater whether incidence of or not much is a are there population fit and of of the adult wholesome for the the in the half cancer jury general public they left draw to to whom The was are sold.” that smokes. cigarettes defendant’s the inference by It was iterated and reiterated the reasonably con- fit for human are sole issues instructions the factual sumption. (1) cigarettes were whether reason- are ably consumption fit and wholesome plaintiffs’ ex- be noted that It should by public (2) not, the if are pert direct either on witnesses testified plaintiffs’ proven damages. what were of to lack similar or cross-examination exactly This was the knowledge of cancer.2 to cause as the case was remanded trial. long, costly research and intensive That simply There is basis for the ma- no discovering cause depth aimed at jority’s conclusion that the admission of public of both or causes cancer testimony jury this confused the “as to continuing, so agencies is private is already that which had been determined general, a of is matter far unsuccessful a to be fact.” knowledge. ais It practically universal daily known to well fact of our life as II. judges. laymen Of course to doctors jury. enough It would be harmful it known to the members to this de- was fendant, has intelligence who won this case be- twice receipt could of jury, majority opinion stop- a if fore them. hardly come as shock have ped par- True, the end Part I. judge jury the trial his instructions put time, ties would be trouble pre- abundantly “in a clear that made it expense yet jury trial, and the another determined was vious determination perhaps upon but trial on the is- another proximate his causes that one sue directed be tried the earlier smoking Green’s) (Edwin panel Court, death was could court testimony cigarettes.” jury limit the defendant’s ex- of the Earlier of these perts objections in a fit manner been deter- instructed: “It has been majority. cigarettes and smoked mined that Green proximate death causes his But, says, “The cigarettes. caused cancer II matter In Part does not end here”. particular- conclusion, opinion, concerned But now we are it reaches the assertedly ly with based on two We are concerned with Green. bility, [4], “Nobody 2, § Vol. 16.03 wherein knows what 2. Dr. Winder: ”* * * (R. foreman the second trial of basic cause of cancer is quoted saying: 184) (Direct). no case was “If we had Dr. Devin: “there is * safe, if decide are we essential cause of known 35-year- Mucino, have said ‘no’ form cancer. As a of fact Mr. matter savings company executive, old disease loan are not sure cancer is even a (R. judge specifically said. But told us an essential cause.” 328- 329) (Cross). Dr. vir decide if Heller: “It particularize consump impossibility upon a safe and wholesome for human tual single in a tion. Ed individual” We told to assume Mr. cause (R. 231) win M. know rea died cancer. We didn’t and “We do not Green hey why proliferate in determine that. cells and become We decided the sons (Cross). absolutely (R. 234) word was ‘reasonable.’ vasive cancers”. What position people smoking safe? For some Dr. conceded “boils is not Tate safe; years getting cigarette for others it to” rid smoke is. Is 20 to 30 down (R. 390) find We out the cause”. reasonable? decided it was.” New “until we Times, (Emphasis (Cross). York Nov. 1964. added). extrajudicial This source reveals jury was con- conclusion that anything but misled. refuted footnote 14.5h fused is further Friedman’s, Product’s Dia- of Framer and

108 4 liability certifica- solute or strict the situation decided since the

Court cases to proceedings, occurred there has now before us. tion legal change controlling a material majority by captivated The seems principles decision of the since the the characterization in McLeod that appeal panel case, 325 first the “applied Green a rule of absolute or strict predicate the trial F.2d On this liability to the manufacturer of a com- judgment n. o. v. directed to enter court is modity placed who had init the channels liability and to limit the third as to consumption by public of trade for the damages. to the sole issue generally”. In Su- Green the Florida change preme apply Court did a rule of absolute I fail to find material liability by or strict said of McLeod the sense that it Florida law reason liability depend upon supra. Indeed, post-Green Foley, that edge did not knowl- further foreseeability pronouncements or Florida the harmful effects. diametrically opposite point This was Never- the before it. Court conclusion, theless, upon prior panel later as the case in this be commented recognized ab- ap- it made clear that in this dissent. or solute strict was to be standard drug- two retail McLeod decided that plied consump- to reasonable fitness for implied gists under an liable tion. warranty dispensing in the of fitness for upon portions opinion container The of the McLeod manufacturer’s drug quoted by majority standing physician’s prescription as known the alone commodity may (advertised plausibly appear out of context support as a “Mer/29” controlling body cholesterol) holding majority. to a custom- the taking injury from the immediately following er who suffered drug However, por- the by physician. The as directed quoted by majority, tion of McLeod below) petitioner (plaintiff-customer exactly we find further elaboration as advisory opinion in contended what is involved in the McLeod case. Co., Fla., 154 v. American Tobacco Green effect, petition- The court stated: “In position. sustained So.2d asking upon impose er McLeod is us to prescription druggists these retail an ab- disposing contention solute, liability strict in an without Supreme Court said: fault added) (Emphasis action in tort.” 174 distinguishing several “There are page, So.2d at 739. On same while against a a suit elements. Green was summarizing holding, fur- its the court a commod- It involved manufacturer. concept ther added: of strict lia- “The ity indiscriminate- which was available bility applied without should not be generally. ly public can fault Green prescription druggists applied summarized a case liability added). (Emphasis stant situation.” of absolute or strict rule commodity who the manufacturer foregoing nothing language, From the trade placed channels it in the liability could be clearer than that strict general- by public consumption for ly. recog is, been, without and has well fault lacking in The case before us nized Florida courts. v. Cliett significant many elements.” of these Corp., Lauderdale Biltmore 39 476 So.2d (Fla.1949); language just quoted includes 45 Market, Seneer v. Carl’s majority opin- (Fla.1950). my quoted page 101 of the Where breth go entirely top astray equating ion, ren is in at is advanced and which categorically separate liability concept page strict with 105 of applied rule of ab- out fault re- stating with strict without that Green Foley Co., Drugs, Inc., Div. of Weaver S. Merrell 177 So.2d 4. McLeod v. W. (1965). Inc., Richardson-Merrell, So.2d 736 (1965); and 672”, Market, supra, 45 So.2d fitness gard product’s reasonable to a language proceeded forth public. to set then consumption top page majority quoted Foley, other case relied point opinion. 106 of the majority, involved the *12 before all cases were here that these is druggist liability for a defect of a retail by Florida and discussed reducing pills, known in for a container certified our when it answered being a “Thindown”, container as question The Blanton 154 169. So.2d glass screw-on with a bottle which closed 171, 7, page quoted in on is footnote case attempted top. purchaser’s to wife The coupled Cliett. citation to with a top. unscrewing by open the bottle holding is dis- Market in v. Carl’s Sencer broke, fragmented, and The bottle By extensively page no on cussed right piece wrist. lacerated her strained, interpretation, how no matter up Supreme Court took the case Florida logically Foley could holding below on certiorari because the change applicable Florida as a in viewed plaintiffs of action had no cause that portion relied law when the against im for breach of retailer an quote majority from a is a plied warranty and of fitness merchant ago. eighteen years Florida case decided ability with Canada was in conflict direct Foley and McLeod The references in Dry Shaw, Bottling 118 of Fla. v. Co. establishing holding of to the Green as (2d D.C.A.1960), decided So.2d 840 liability read in context. strict must be Appeal im Second District Court to In these and other cases the reference posing liability upon re and both bottler liability reference strict or absolute ap tailer. The case under review was only long concept to that lia- followed proved Dry disapproved. and Canada bility imposed is for Foley, proposi therefore, for stands defective regardless defect could of whether tion caus to defective containers manufactur- have been discovered ing injury impose upon Florida will not terminology er. is a common This liability implied warranty of retailers for negligence distinguish nothing between the fitness. It decided whatever concept opposed of fault as respect liability with manu either regardless concept of upon implied facturer war or retailer Co., Supply of fault. Carter v. Hector ranty respect with either food or other (Fla.1961); 128 Lau- product So.2d 390 Cliett v. consump intended for human Corp., supra; Mi- derdale Biltmore tion. The Florida Court stated Bottling Todd, So.2d) (Foley, page ami Coca Cola Co. v. ex (Fla.1958). So.2d 34 act it had not thereto before presented It fore been that court. significant It to me neither holdings proceeded to discuss its reply their nor their brief imposing liability upon both retailer-sell despite urging appellants, brief did the er sold and manufacturer of foodstuffs prior panel, re- this Court to reverse the injuries in sealed caused containers Foley. any way fer in McLeod or to either by unwholesome or deleterious substanc emphasize radical inter- To further therein, citing Cudahy Blanton v. es Pack pretation places Fo- now ing (1944) Co., 154 Fla. 19 So.2d 313 ley, plaintiffs’ in the we note that counsel (manufacturer packer tinned likewise counsel instant case were meat), Market, 45 Sencer v. Carl’s Foley. Foley or relied Yet cited (retailer-seller (Fla.1950) canned by plain- upon even referred to — —nor sardines), Bilt and Cliett v. Lauderdale requested sup- tiffs this court until after (Fla.1949) (un Corp., more 39 So.2d 476 plemental briefs from counsel room). dining Foley wholesome food served re- not McLeod and whether or case, quired judgment o. in the Cliett n. v. entered It stated said “as liability. plaintiffs Carl’s These are supra, Sencer and reaffirmed dangerously.” (Emphasis capable experienced lawyers, count rises added). especially representation skilled in personal injury death significant It to note that in the cases, including specifically cases involv- stant case there has never been even ing products liability. It creduli- strains attempt prove either of two above ty to assume that their cite failure to exceptions. Inability prove a listed Foley originally McLeod was the specific preclude defect would not liabil- product oversight. Rather, more ity proof if there was logical Foley simply conclusion is unreasonably dangerous without a defect. plain- McLeod were not relied liability in Even under the new strict tiffs’ counsel for the obvious reason that (as opposed tort to an action in warran- proposition neither case stands *13 ty) theory found in Section 402A of the by my for which it is cited brethren. (Second), Restatement of Comment Torts signal theory a these two cases provides: i unrea- “Good tobacco is not departure by Supreme of Flori- Court dangerous sonably merely ef- because the given da from the advice at 154 So.2d us smoking may harmful; fects of be but completely ma- is with the containing something mari- tobacco like jority opinion in this case. dangerous.” juana may unreasonably substance, my position In is that 1, 1967, Supreme On March the Florida recognize failed to Community decided the case uniqueness presented. of the situation Russell, Blood Bank Inc. v. 196 So.2d obvious, dealing We are not with an provided and as to the several indications harmful, foreign body product. in a Nei- precise holding in Green and the state breaking exploding do ther we have an of the law in involved Florida. Russell bottle case wherein defect is so obvi- liability of a blood sold bank blood ous that In- warrants no discussion. containing medically undetectable stead, (cigarettes) product we have a hepatitis. and re unremovable serum In way They exactly in no is defective. are viewing the action of the District Court particular like all others of brand and ap Appeal, the court Green with cited virtually the same as all other brands proval authorizing remand “for Judge the market. The statement of (Emphasis supplied) on issues of fact.” Goodrich, concurring in a pro 196 So.2d at 117. Such a recent Liggett Myers Pritchard v. Tobacco nouncement the Florida properly Russell that Green was Co., (3 1961), is 295 F.2d Cir. certainly prior panel, remanded equally applicable here: majority’s runs counter to the decision buys whiskey “If a man and drinks judgment for the should be entered gets too much of it and some liver liability of law. as matter not think trouble as a result I do Justice Roberts of the Florida (1) the manufacturer is liable unless specially concurring opinion Court filed a manufacturer tells the customer interesting, (2) whiskey Russell. His will not him or views hurt whiskey though with concededly expression is adulterated —made methyl alcohol, binding same special instance. The Court. con- surely is true of one who churns currence he indicates to al- Russell liability butter to a customer who should sells low avoidance because of true, ability hep- be on a diet. same is nonfat to detect or remove the serum likewise, very as to who sells roasts atitis “runs counter to basis peanuts warranty theory who implied salted to a customer the strict or Surely if liability is, liability should on a no-salt diet. without —that fault— pure peanuts are the butter and the decision is direct conflict with the liability there is no if cholesterol To- this court American Green v.

Ill product sold is fit to be Co., supra, b when the 169.” a 154 So.2d cco ”* added). use. (Emphasis 196 So.2d at safe for added). (Emphasis point ex Roberts Justice At another holding in McLeod plained court’s firmly It has been established “ drug retail held that follows: e [W] prior panel purposes of this case that theory gist liable could be held cigarettes are not adulterated: warranty of if [sic] breach presented “There has never been drug supplied merchantability where the Lucky any contention that evidence was, plaintiff unadulter in fact dangerous cigarettes were more Strike Justice It was ated.” 196 greater propensity or had cause key word Roberts’ observation bearing cancer than further ex To “unadulterated”. other brand names. Nor has there plain, he added: been contention that the is a clear distinction between “There which Mr. smoked contained Green foreign any spoiled, not adulterated— substance, or con- ingre- es- taminated or other substandard one which meets all the standards injury dient which caused his particular product but for a tablished Instead, plaintiffs’ death. contention risk known attended with a *14 cig- beginning from the been that has product which consumer —and a Lucky arettes —not Strike is, fact, in adulterated defective— F.2d alone —cause cancer.” is, stand- which meet the does not at 676. particular ards established for My research has not revealed Flor- would, product because —and finding ida decision li- a manufacturer defect, such unknown and undetectable able in which there defect was not some produce con- a harmful effect product. or adulteration in the For the at 120 sumer thereof.” 196 So.2d majority proof now to of a de- decide (Original emphasis). (or or fect adulteration at least that Justice Roberts then concluded product harmful effects felt liability, McLeod, in which was no there segment public) a substantial of the distinguishable no was was longer because there necessary, is no as a matter adulteration, defect or but there law, goes beyond anything yet far decided liability should in Russell because or even de- foreshadowed the Florida blood was fact or defective adulterated cisions. presence virtue of the serum One further source will be discussed hepatitis unre- albeit undetectable and my position dissent, relative

movable. Supreme is the Florida Court’s ad- visory

If taken opinion Justice Roberts’ is elaboration in this out- case. At the correct, nothing certainly was said set the Florida Court was care- Foley or decided in or McLeod which ful to delineate what it was and any way quoted Th,e contradicts the above pertinent on called to decide. first passage, position portion im- then the Florida on of the as follows: is plied warranty clearly is in which “We conclude also that the there has to first be an actual adultera- present thus framed does our product tion in the before there can be consideration of whether the resulting from its harm from cigarettes which caused a in this use. Dean has Prosser reached the same particular instance as a matter were conclusion, e., i. that “there no strict is of law unmerchantable2 Florida un Prosser, (Strict Liability Consumer),

5. The Pall of the Citadel to the 50 Minn.L.Rev. (1966). conditions, reasonably expected by nor stated does is con-

der the cases; scope jury question sumer is a * * * in most statement request warranty implied applied in the circumstances This test as to warranty ac- tion for of this case.” breach ’ ” keyed “reasonably ’. is to what is fit” like- stated that it court Further (Emphasis added) whether on to decide was not called wise majority product pages and whole- fit relied at general purpose. majority opinion for its 101 and 105 of some language safety” the “actual of the Flor- preceding quota- In footnote 2 to the establishing ida Court as lia- tion, court refers Section Florida bility. misplaced. If Such reliance is Friedman, Products 25 of Frumer the construction cor- Liability, collected cases are wherein rect, American has been made Tobacco volving suf- contents are whose an insurer. require no ficiently repulsive so as my proof Such cases unwholesomeness. is said view what and all that product safety” para- contain- where include those about “actual is that it is slime, mud, bugs, mice, flies, industry roaches ed mount to The latter standards. portion paragraph page exists that Little doubt and worms. presence 173 of product of such articles Green makes it clear that consumption renders Supreme for human “ac- Court’s intended references safety” unmer- product product unwholesome tual not in- said a matter of law. chantable as tended to be construed as a modification 29.03 which this case harmless The same individual court noted ^[1] substances”, Fruman and footnote refers to Section was tried the reactions discussed “the Friedman [the second *15 theory ordinarily problem time, Supreme of the test of whether a tioned tion.6 sonably It is guarded my opinion fit for human use and statements that the above men- to what it the consump- Florida rea- not of which we “discussion remand] after called on well foot- to decide as as the the because unwarranted here deem vitally important noted to references precedent limited and the Florida lack of products liability which areas defense non-adversary pro posed in this not indi- were discussed is a clear be ceeding.” panel cation that the action of the remanding the in for a new trial toas Florida Su- Again, 11 the in footnote cigarettes’ emi- fitness was reasonable approval Fru- quotes with preme Court nently Any analysis Wis- correct. other conclusion of a and Friedman’s mer “ ‘What supported only that: to the effect would be if the Florida consin case knowledge, the wholesomeness that a risk which are contention convinced “The inception determined be was from the a should the safety actual than its intended to be attached other doctrine standard supplied exists, consumption, when to the mercantile function. There human proposition think, in purpose, novel we objection no real alternative and no valid is persuaded law, we are to this distribution of one which bur- our and the den, public protected cases. if in the decided the health is be no foundation has industry any practical exploitation prevailing stand- in sense from hold To by ordinary who, profit motive, supplant standard those for a the under- ards proof, supply objective and should take to the vast and and ever increas- truth product’s ing variety people the issue the conclusive by unprecedented powers con- pur- human use or of commercial reasonable fitness for persuasion daily urged the sumption, shift are be to and (Emphasis added) latent de- consume.” whatever risk of chaser by ultimately proven may at 173. fectiveness experience human advancement clearly ranty Supreme and affirma- Court had does not cover substances tively product, defendant’s that when the manufactured harmful ruled ef- plaintiff’s developed fatal caused the fects of which no human foresight had found skill or cancer, as first can afford knowl- Supreme edge.” (Emphasis supplied Florida Court was of which Lucky opinion) aware, unmer- Strikes were Flori- chantable as a matter law. The Judge points Rives then out that Supreme has Court’s decision Green da plaintiffs’ was taken verbatim from re- Nor that court. never been criticized quested written instruction No. 11 as to Supreme in- Court ever has the Florida consented to the prior panel court dicated “reasonably” sertion the adverb remanding new for a was incorrect modify fit”, “wholesome de- trial, question of whether limited to the object emphasized fendant did not Lucky “reasonably fit and Strikes portion. Judge Rives continued: “As Indeed, Florida Su- wholesome.” parties of the law of this case the specifically approved preme of the are, therefore, scope bound of the “for trial on issues remand Green implied warranty as so defined Community Bank, Blood fact.” Inc. mine.) (Emphasis district court.” Russell, supra. Thus, (1) on the first the district recognized parties court both “rea- supporting can be A final reference sonably scope or fit” supra, wholesome as the Friedman, found in Fruman and implied warranty of the law of as the 16.03[4], p. 62, au- Vol. wherein § (2) case, Flor- Court of analyzed thors recognized scope ida im- it as the of the opinion in and concluded Court’s Green plied warranty, (3) this Court on scope warran- “Whatever prior appeal specifically identified this ty, tenor concept case, as the law of and direct- say whether least [the] * retrial, ed the lower court follow it on which cause (4) carefully upon retrial the lower consump- court for human are fit directions, (5) followed there tion, limitation that [the] unfettered intervening change appli- no been against manufacturer does warrant cable Florida law. If is such there (Original emphasis) unknowable risks.” thing being as the “law of ever the case” though in ac- the authors Even permanently impregnably establish- the Florida cord with what view as *16 ed, listed series events above should position, the issue their conclusion that purposes establish for all for time and all at is for the of reasonable fitness scope this case and nature odds with construction implied warranty of “rea- here panel, viz: sonable wholesomeness and fitness as a matter should be decided public.” of law. By majority’s pen stroke of the Further, emphasized, as it should consistent treatment of the majority opinion set forth in the parties all courts involved (325 page panel. F.2d is obliterated from is as the record. It 2) under headnote though clearly what the record shows did charged follows: happen happened never at all. On the products “The manufacturer us, record before I cannot concur. pub- offered sale are original package Respectfully, vehemently, for human but I dissent lic their impliedly holding consumption warrants or use from the of both Part I and Part majority opinion. whole- II af- are I would its purpose firm “FINIS” the trial court and write some fit for litigation. long implied war- such to this sold, but troublesome