Frаncisco García López began smoking in 1960, at age 25, and continued the habit for the next 42 years, ultimately smoking three packs of Winston cigarettes each day. He died in October 2002, three months after being diagnosed with lung cancer. His surviving family members brought this diversity action against the cigarette manufacturer, R.J. Reynolds Tobacco Co., claiming that smoking was a substantial factor in his illness and death. Plaintiffs sought to recover damages based on a variety of tort and other Commonwealth law theories, including failure to warn and defectivе design. The district court dismissed a failure to warn claim and granted summary judgment for defendant Reynolds on all other claims. After careful scrutiny of the record, we affirm substantially for the reasons articulated by the court.
I. Background
Decedent Garcia had only a sixth grade education and could read little Spanish and no English. Although he did not watch much television, several family members testified in depositions that he did regularly view the evening news. His wife and at least four of his children also testified that, at various points during the years Garcia smoked, they urged him tо stop because of the health risks posed by cigarettes. According to the undisputed facts the parties jointly submitted to the district court, Garcia’s wife and daughter had “years ago ... talked about how the Decedent was smoking too much.” His wife acknowledged that, when she first saw him smoking, she warned him that it could be bad for his health.
Another son, Edgardo García Prado, also noted his father’s use of the nicotine gum, but said that he never completely stopped smoking. Edgardo testified that he “would tell [his father] to stop smoking every day and he would pay no attention.” Still another son, Orlando, testified that, when family members or friends would tell his father that smoking was harmful, he would say “that we all have to die some time from something.... He always had the same answer.” Decedent’s brother, Demetrio Gаrcía Lopez, testified that he had been telling his brother that smoking was harmful since about 1970. Demetrio said he did not know his brother’s perception of the health risks of smoking, noting, “[t]he thing is that he would not pay any attention to anybody, so it just didn’t matter to him.”
Garcia’s wife, Virginia Prado Alvarez, testified that, in May 2002, her husband stopped smoking because the price of cigarettes increased, 1 and he could no longer afford to buy them. He became bedridden, and, according to his wife, “[h]e was feeling very sick because he wasn’t smoking.” He was experiencing both abdominal pain and a dry cough, and medical tests ultimately revealed a right upper lung mass that was diagnosed as inoperable cancer. He deteriorated rapidly and died in October 2002 at the age of 68.
Appellants filed suit in June 2003, claiming that Garcia’s illness and death were caused by his smoking Winston cigarettes, which are manufactured by appellee R.J. Reynolds. They alleged negligence and strict liability claims under Puerto Rico law for failure to warn and design defect, claims for fraudulent misrepresеntation and concealment, and a claim for violation of Article 189 of the Puerto Rico Penal Code, 83 P.R. Laws Ann. § 4307, which prohibits “[fjraud in [the] delivery of [a] thing.”
The district court dismissed the post-1969 failure-to-warn claims based on preemption by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331— 1341, and it subsequently granted summary judgment on the remaining claims. The court concluded that plaintiffs had failed to establish that ordinary consumers were unaware of the health risks of cigarette smoking during the relevant time period, undermining both the design defect and the pre-1969 failure-to-warn claims. The court further ruled that plaintiffs failed to adduce evidence of a design defect or to offer evidence that the decedent’s injuries were proximately caused by Reynolds’ failure to warn. The court rejected
On appeal, appellants challenge each of the district court’s summary judgment rulings. 2
II. Discussion
We review the district court’s grant of summary judgment de novo.
Cruz Vargas v. R.J. Reynolds Tobacco Co.,
A. The Role of Common Knoioledge
As the district court observed, appellants may not prevail on either the common law failure to warn or the design defeсt claims unless they can show that the ordinary consumer was unaware of the dangers of smoking.
See Cruz-Vargas,
Both parties sought to establish their position on common knowledge through expert evidence, but Reynolds filed a motion to exclude the testimony of plaintiffs’ proposed expert, Marly Ferrer Montalvo, claiming
inter alia,
that she lacked the requisite education and experience to qualify as an expert. Although the district court did not explicitly rule on this motion, it did not refer to Ferrer’s report in its summary judgment decision, relying entirely on the common knowledge conclusions of Reynolds’ expert, Luis Martinez-Fernández. The court’s silence seems to us to imply rejection of plaintiffs’ expert evidence, a ruling that would be subject to review only for abuse of discretion.
See Kumho Tire Co., Ltd. v. Carmichael,
In
Cruz-Vargas,
we observed that the “common knowledge” defense is as
At the time of her report, Ferrer possessed only a bachelor’s degree in history, and most of her research experience was irrelevant to the issue of common knowledge of the health risks of smoking. Her master’s thesis (written but, at the time of her report, not yet presented) related to the history of the Republiс of Haiti, and her most recent work was as an archivist on a collection of documents relating to public works in the Commonwealth. As a graduate student in 2001, she presented a paper on Haiti at a Puerto Rican Historians Congress. Other experiences included about two years teaching high school students Puerto Rican and Latin American history, researching the history of the paso fino horse in Puerto Rico, working as a cultural tour guide in Old San Juan, and assisting a university professor with research on neo-colonial history, рarticularly in the Caribbean, but excluding Cuba and Puerto Rico. Toward the end of that year of research, she did her only directly relevant work: collecting materials about tobacco advertising in Puerto Rico. Her particular assignment was to focus on religious and gossip magazines; in her deposition, she described this work as photocopying information, without analysis.
In sum, to grant the status of expert to one at the outset of an academic career, with such a variegated and unfocused record of scholarly efforts and minimal attention to analysis, would threaten the effective functioning of the gatekeeper process. Expert witnesses are “permitted wide latitude to offer opinions,”
Daubert,
Reynolds’ expert, Martinez, was considеrably more qualified in every relevant respect. A history professor since 1983, he earned his doctoral degree from Duke University in 1990 and, at the time of his affidavit, was a professor of history and Puerto Rican and Hispanic Caribbean Studies at Rutgers University. Author of seven books and monographs and more than twenty articles and essays, he also has given more than thirty lectures on Latin American historical topics at colleges and universities. Among other scholarly awards, he received in 2000 the Lydia Cabrera Award of the Conferеnce on Latin American History. He has taught a variety of courses on Latin American, Caribbean and United States history, and the course subject matter has included “the
The two experts’ proposed evidence also differed markedly. In a seven-page report basеd on approximately 130 hours of work, Ferrer reported that she had reviewed the bulletin and magazine of the Puerto Rican Medical Association from 1930 through 1970, reports of the Department of Public Health and the Commissioner of Education, and a series of movies developed by the Department of Education to address various social problems in Puerto Rico. She stated that she investigated the newspaper El Mundo from the 1930s through 1985 and found “some coverage of the health problems caused by cigarette use,” but her report gives no specific citations to articles other than to state that she had found “approximately 15 articles [in 1964] on different subjects relating to tobacco, some of which included health problems that may be caused by smoking cigarettes.” She acknowledged that her research was not yet complete, noting that she was still investigating several magazines, including Readers Digest, which she noted was published in Spanish beginning in December 1940. 3
Based on the limited materials she reviewed, Ferrer nevertheless сoncluded that “the research on the effects of tobacco use and cigarette smoking was only beginning in the 1950s and 1960s,” and she observed that pervasive cigarette advertising “rendered futile any educational attempt to minimize the use of cigarette products.” She further observed that much of the information about smoking that was available to Puerto Ricans was translated from English, and noted that “many times the basic ideas and concepts are lost in translation.” 4 She emphasized that this language difficulty was exacerbated by the high percentage of illiteracy among Puerto Rico’s residents. She concluded that decedent could have had no knowledge of nicotine addiction or the health risks of smoking because of the ambiguous nature of the information available to him. These conclusions were framed generally, and none was supported by specific citations to sources. 5
By contrast, Martinez reported in his 31-page affidavit a wide variety of materi
Based on his research, Martinez opined “to a reasonable degree of historical certainty” that throughout the decedent’s lifetime the general public received an “abundance of information” on the health risks of smoking and the difficulty some smokers encounter in attempting to quit. He thus concluded that there has been “widespread, pervasive common knowledge throughout the twentieth century that cigarette smoking сan cause serious life-shortening diseases, such as lung cancer, emphysema, hypertension, and heart disease.” He further reported common knowledge that cigarette smoking “can be habit forming, addictive, and/or very difficult for some to quit.”
More persuasive than these general, perhaps overbroad, conclusions were his more particular references to sources of public information in the critical decade of the 1950s, immediately before the decedent started smoking. For example, his affidavit cited nine articles related to smoking and health that appeared in Selecciones del Reader’s Digest between March 1950 and May 1959. He reported that one of them, published in September 1954, noted that “ ‘13 unrelated studies have been done on the relationship between cancer and tobacco in five different] countries ... all these researchers reached the same conclusion: lung cancer appears more frequently among smoker[s] than among nonsmokers.’ ” (citing “Lo que se sabe del cigarillo y el cáncer,” Selecciones del Reader’s Digest, Seрtember 1954). He stated that another article, published in February 1953, referenced a study concluding that “ ‘From the age of 45 onward, the danger of acquiring the illness [lung cancer] increases in direct proportion to the amount of tobacco smoked .... ’ ” (citing “Cáncer por cajetillas,” Selecciones del Reader’s Digest, February 1953). He also cited more than a dozen articles in the newspaper El Mundo during the 1950s referring to smoking and health, including specifically the relationship between smoking and cancer, and he pointed to similar coverage in the early 1960s in both El Mundo and the San Juan Star.
According to Martinez, the issue of addiction also received specific attention in both periodicals- and newspapers. He cited a 1952 article in
El Mundo
that noted the difficulties of quitting smoking and that “the seductive qualities of tobacco are doubtless owing to the effect of the nicotine it contains.” (citing “Sobre café y taba-co,”
El Mundo,
April 24, 1952). He stated that other references to the difficulty of quitting smoking appeared in “[pjopular and widely circulating magazines” such as
Selecciones del Reader’s Digest
and
Alma Latina,
and the footnote correspоnding to that statement listed twelve sources (including the nine
Reader’s Digest
articles noted above) addressing that topic and/or the general issue of smoking and health, including the link to lung cancer. Martinez also pointed to newspaper advertisements for “stop smoking methods” and “highly publicized” anti-smoking campaigns in the 1960s and 1970s that included educational workshops to help smokers
In light of these contrasting expert reports, we agree with the district court that no reasonable jury, confined to the record, could conclude that the general public in Puerto Rico lacked knowledge about the risks of smoking, including lung cancer, by the time decedent first started smoking in 1960.
6
A reasonable juror could not reject Martinez’ detailed and comprehensive report in favor of Ferrer’s conclusory and incomplete assessment. As was the case with his testimony in
Cruz-Vargas,
“Mar-tínez’ research followed an accepted method of historical analysis and drew on a breadth of sources ... contemporaneous with the time period at issue in the case,”
We therefore agree with the district court that, in failing to show a lack of common knowledge of the risks of smoking — and in particular, the risk of lung cancer — appellants offered insufficient evidence to support either their failure-to-warn or design defect claims.
B. Other Elements of the Tort Claims
We note, moreover, that plaintiffs’ evidence also fell short of demonstrating the requisite proximate cause between either a failure to warn or design defect and decedent’s death from lung cancer. As detailed above, decedent chose to disregard his family’s and friends’ repeated admonitions that he give up cigarettes because of the health risk, stating his intention to continue smoking despite its link to disease and death because “we all have to die some time from something.” This attitude was expressed notwithstanding the explicit warning on cigarette packages, beginning in the mid-1980s, that smoking causes lung cancer and other serious diseases. Thus, on this record, warnings appear irrelevant to decedent’s decision-making.
7
Accord Estate of White v. R.J. Reynolds Tobacco Co.,
In addition, the contention that nicotine’s addictive nature rendered decedent incapable of stopping once he started smoking — a point asserted but undeveloped in appellants’ brief — is belied by the testimony of his wife and daughter that he stopped near the end of his life because he no longer could afford the cost of cigarettes. Although he briefly tried nicotine patches and gum providеd by family members, the evidence that he deliberately chose to continue smoking despite its life-shortening effect undermines the genuineness of those attempts to stop and, thus, their probative value. In sum, the evidence taken as a whole forecloses a jury finding that Reynolds’ failure to warn of the health hazards of smoking before 1969 was a proximate cause of decedent’s lung cancer.
Cf. Tompkin v. American Brands,
Nor did decedent ever switch to available brands of cigarettes with lower levels of tar or nicotine in an effort to lower the risk to his health; he instead remained loyal throughout his life to regular Win-stons. Thus, Reynolds’ failure to develop a “healthier” cigarette design also could not be deemed the cause of his illness and death.
For these reasons as well, appellants’ failure-to-warn and design defect claims were properly dismissed. 8
C. Remaining Claims
Appellants also asserted a fraud claim and a claim under Article 189 of the Puerto Rico Criminal Code, which punishes “[fjraud in delivery of [a] thing,” 33 P.R. Laws Ann. § 4307.
9
The district court found no allegations of reliance to support the fraud claim,
see, e.g., Microsoft Corp. v. Computer Warehouse,
As appellants acknowledge, however, “dolo” is a form of contractual deceit,
see Generadora De Electricidad Del Caribe, Inc. v. Foster Wheeler Corp.,
Appellants’ claim under Article 189 fares no better. Their argument for liability under this provision presumes a contractual relationship under which Reynolds was obliged to deliver a safe product. As noted above, however, the basis for such a contractual obligation was not alleged. Appellants offer no legal support for their implicit assertion that the purchase of a consumer product, without more, can establish a contractual relationship; nor have they explained how Reynolds’ sale of Winston cigarettes to the decedent failed to fulfill any specific promises made to him regarding the “substance, quality or quantity” of the product to be delivered. Article 189, like “dolo,” is simply inapt.
For the forgoing reasons, the judgment of the district court is affirmed.
Notes
. A daughter also testified that he stopped smoking because of a price increase in May 2002.
. At oral argument, appellants' attorney stated that they no longer were pursuing their negligence claims; the failure-to-warn and design defect claims thus remain only as strict liability causes of action.
. On the second day of her deposition, about four months after she first was deposed, she reported that she had in the interim checked "some issues” of the newspapers El Imparcial and El Vocero and also had reviewed the catalog of the national archive movie section, where she uncovered one agricultural documentary about growing tobacco in Puerto Rico.
. During her deposition, she was unable to cite any specific instances of suсh confusion and, upon questioning by defense counsel, agreed that two apparently translated articles shown to her from El Mundo that had been published in 1954 and 1955 would have been understood as linking smoking and cancer.
. We note as well that Ferrer's report was not sworn, which diminishes its potency as probative evidence.
See Carmona v. Toledo,
. Appellants claim in their brief that Puerto Rico utilizes a "more stringent” approach to the common knowledge doctrine, requiring a finding in this case that consumers were aware not simply that cigarette smoking is hazardous to health but of “the specific connection between smoking and lung cancer (the disease that caused decedent's death) and/or the addictive nature of cigarettes.” To the extent this is a correct statement of Puerto Rico law, an issue we do not reach, it does not affect our conclusion because Martinez' analysis met that standard.
. Nor are appellants aided by the fact that the package warnings were in English, a language decedent did not speak. His exposure to the label information was inevitable given the evidence that he regularly watched the evening news, and he presumably was exposed to the information as well through word-of-mouth.
. The district court also relied on preemption doctrine to dismiss appellants' claims. As our discussion so far fully resolves the issues, we see no need to engage in additional analysis.
. Section 4307 provides, in relevant part:
"Any person who defrauds in the substance, quality or quantity of the thing he delivers by virtue of an obligation in order to secure an undue profit for himself or a third party shall be punished....”