Paul L. SPAIN, as administrator for the estate of Carolyn Watts Spain, deceased
v.
BROWN & WILLIAMSON TOBACCO CORPORATION et al.
Supreme Court of Alabama.
*102 M. Clay Ragsdale of Ragsdale & Wheeler, LLC, Birmingham, for plaintiff.
Vernon L. Wells II and Randall D. Quarles of Walston, Wells, Anderson & Bains, LLP, Birmingham; David S. Eggert and Heather A. Pigman of Arnold & Porter, Washington, D.C.; and Stephen E. Scheve, Steven R. Selsberg, and Peter M. Henk of Shook, Hardy & Bacon, L.L.P., Houston, Texas, for defendant Philip Morris Incorporated.
Samuel H. Franklin, William H. Brooks, and Stephen J. Rowe of Lightfoot, Franklin & White, L.L.C., Birmingham; Richard G. Stuhan, Paul D. Koethe, and Steven N. Geise of Jones, Day, Reavis & Pogue, Cleveland, Ohio; and Mark C. Cawley of Jones, Day, Reavis & Pogue, Washington, D.C., for defendant R.J. Reynolds Tobacco Company.
H. Thomas Wells, Jr., and William B. Wahlheim, Jr., of Maynard, Cooper & Gale, P.C., Birmingham; and Gordon A. Smith, W. Randall Bassett, and Daniel A. Hillman of King & Spalding, Atlanta, *103 Georgia, for defendant Brown & Williamson Tobacco Company (individually and as successor by merger to the American Tobacco Company).
Ross Diamond III of Diamond, Hasser & Frost, Mobile; and Jere L. Beasley and R. Graham Esdale, Jr., of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for amicus curiae Brenda D. Tillman, as administratrix of the estate of Kalen O. Tillman, deceased, in support of the plaintiff.
David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, LLC, Mobile, for amicus curiae Alabama Trial Lawyers Association, in support of the plaintiff.
Allison L. Alford and Emily C. Marks of Ball, Ball, Matthews & Novak, P.A., Montgomery, for amicus curiae Alabama Defense Lawyers Association.
PER CURIAM.
Carolyn Watts Spain ("Carolyn") was a cigarette smoker during most of her lifetime. After her death, her husband, Paul L. Spain ("Spain"), as administrator for Carolyn's estate, filed a wrongful-death action in the Jefferson Circuit Court against Brown & Williamson Tobacco Corporation; Philip Morris, Inc. (now Philip Morris USA Inc.);[1] and R.J. Reynolds Tobacco Corporation (hereinafter referred to collectively as "the manufacturers"), alleging negligence, wantonness, breach of warranty, conspiracy, and liability under the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD"). Following the removal of the case to the United States District Court for the Northern District of Alabama, the manufacturers moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The federal district court granted the motion, and Spain appealed to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit certified to us the following questions of state law pursuant to Rule 18, Ala. R.App. P.:[2]
"1. When does the Alabama statute of limitations for claims brought under the AEMLD, and claims premised on negligence, wantonness, breach of warranty and conspiracy begin to run in a smoking products liability case?
"2. Does the Alabama rule of repose apply in a smoking products liability case?
"3. If so, when does the Alabama rule of repose begin to run in a smoking products liability case?
"4. Before the appearance of federally mandated warning labels on cigarettes packages, were cigarettes `unreasonably dangerous' under the AEMLD?
"5. Since the appearance of federally mandated warning labels on cigarettes packages, have cigarettes been `unreasonably dangerous' under the AEMLD?
"In addition to certifying the preceding questions to the Alabama Supreme Court, we also invite that Court to tell us if the conclusions we have reached about the following state law issues are incorrect:
"a. that the negligence and wantonness claims merge into an AEMLD claim;
"b. that the sale of cigarettes does not violate the implied warranty of merchantability *104 under Code of Alabama 1975, § 7-2-314;
"c. that the fraudulent suppression claim, which is a basis for Spain's conspiracy claim, is not viable under Alabama law; and
"d. that, if cigarettes are not unreasonably dangerous as a matter of Alabama law, the fraudulent misrepresentation claim, which is a basis for the conspiracy claim, is not viable under Alabama law."
Spain v. Brown & Williamson Tobacco Corp.,
We begin with a few observations about this Court's response to a certified question from federal courts. This Court's promulgation of the rule that enables a federal court to seek assistance in ascertaining answers to unsettled questions of state law stands as a salutary example of cooperation between federal and state governments. But the practice is not without its limitations. When this Court, as is the case with any appellate court, decides questions presented on an appeal in which numerous issues are argued, the resolution of one or more of the questions presented quite often pretermits the necessity for considering the remaining issues. Sound considerations of judicial policy dictate resolution of only those questions necessary to a decision, without the inclusion of dicta. However, when a federal court certifies questions to us, quite understandably, it often tenders a variety of questions so that it will have ready answers to all questions before it in the event its further analysis of the record renders answers to some of the questions not useful, while the answer to one or more of the remaining questions might dispose of the appeal. Consequently, certified questions can present tension between the legitimate, yet competing, interests of this Court in avoiding answering questions not necessary to a decision and the interests of a federal court needing assistance in dealing with uncharted areas of state law.
A second consideration relates to the maxim often attributed to Albert J. Farrah, a former dean of the University of Alabama School of Law, who reportedly drilled into his students, "Out of facts the law arises."[3] This Court permits a state trial court to certify to it controlling questions of law as to which there is substantial basis for difference of opinion. See Rule 5, Ala. R.App. P. We routinely decline to accept a Rule 5 petition when it appears that as yet undeveloped factual issues are essential to a determination of an abstractly presented question of law. However, quite often when asked to respond to a certified question from a federal court, in the interest of comity we put aside concerns as to unknown or uncertain facts that might affect our answer so as to assist the federal court in answering a question of state law. If the same questions were certified to us by a state trial court pursuant to Rule 5, we would decline to answer them based upon the presence of significant and unresolved factual issues.
Against this background, we will endeavor to assist the Eleventh Circuit to the extent practicable, focusing our attention primarily on the issue of when the statute of limitations in a "smoking products-liability case" begins to run. The Eleventh Circuit recited the following facts:
"Because the case is before us on a Rule 12(b)(6)[, Fed. R Civ. P.,] dismissal, we take the facts from the allegations in *105 the complaint, assuming those allegations to be true. See Brown v. Crawford County, Georgia,960 F.2d 1002 , 1010 (11th Cir.1992).
"Carolyn Spain started smoking cigarettes in 1962, when she was `approximately 15 years of age and was a multi-pack per day smoker.' She became addicted to the nicotine in cigarettes early on and was unaware at the time that she was becoming addicted. She primarily smoked cigarettes manufactured by Philip Morris, Inc., R.J. Reynolds Tobacco Company, and Brown & Williamson Tobacco Corporation. Carolyn's smoking was the proximate cause of her lung cancer, which was diagnosed on August 15, 1998. Unable to stop, she, continued smoking until 1999. She has since died.1
1The complaint does not indicate whether Carolyn Spain continued to smoke until she died or the date of her death. About the date of her death, we know only that she died sometime between the diagnosis of lung cancer on August 15, 1998 and the filing of the complaint in this case on August 5, 1999."
The foregoing bare-bones facts are before us. Carolyn became a heavy smoker after beginning to smoke in 1962 when she was approximately 15 years old. We know that she became addicted to the nicotine in cigarettes. We know that she was unaware of her addiction at the outset. She alleges in her complaint that she was unable to stop smoking. She was diagnosed with lung cancer on August 15, 1998, and died within one year.
Facts not before us are legion. Spain points out that the federal district court dismissed his complaint before any discovery began. Presumably, as common sense suggests, Carolyn at some point became aware that she was addicted to cigarettes, but we do not know that for sure. We do not know whether Carolyn experienced any physical consequences of smoking before she was diagnosed with lung cancer in 1998. Reference was made at oral argument before this Court to Carolyn's experiencing shortness of breath, but nothing in the record thus far suggests that fact. Perhaps members of the Court could draw upon personal experience and surmise that Carolyn, as a multi-pack per day addicted smoker, experienced shortness of breath, periodic episodes of coughing, throat irritation, and reduction in gustatory and olfactory capacities, but we cannot so conclude with certainty. We do not know whether symptoms of cancer or cancer cells were present at any time before the diagnosis in August 1998. We know from matters generally regarded as public knowledge that the surgeon general of the United States has mandated the inclusion of warnings on packages of cigarettes since sometime in the 1960s. We further know that the text of the warning has been adjusted over the years. However, the parties have not furnished us with information regarding the various formulations in the text and the dates of the changes.
I. The Claims Alleged in the Complaint
Before responding to the question dealing with when the statutory limitations period begins to run, we must first assess the viability of causes of action alleged in the complaint sounding in tort and in breach of warranty.
A. Tort Claims
With respect to tort claims, the complaint alleges negligence, wantonness, and claims under the AEMLD. In a secondary question, the Eleventh Circuit asks us to validate its assumption that the AEMLD subsumes preexisting remedies *106 at common law. We noted in Keck v. Dryvit Systems, Inc.,
B. Implied-Warranty Claims
Spain abandoned his express-warranty claims during oral argument at the Eleventh Circuit. As to the implied-warranty claim, the Eleventh Circuit stated: "Unless the Alabama Supreme Court tells us differently, we are convinced that the complaint does not state a claim for breach of an implied warranty of merchantability." Spain,
In Shell v. Union Oil Co., Shell alleged "breach of warranty of merchantability" because a naphtha product, purchased by his employer and then provided to him, contained benzene, a cancer-causing agent. He alleged that the benzene was not "`fit for the ordinary purposes for which such goods are used.'"
The defendants, the suppliers of the naphtha product, moved for a summary judgment. The evidence showed that the naphtha product "was purchased by [Shell's employer] on a bid basis, in compliance with its specifications, which limited the amount of benzene any shipment could contain." Shell,
On appeal, Shell raised three issues:
"(1) Was there a duty owed, i.e., was there an implied promise?
"(2) If so, was that duty breached, i.e., was the promise unperformed? and
"(3) Did that duty extend to [Shell], i.e., was the obligation of performance intended for Shell's protection ...?"
As to that argument, this Court stated:
"Such an argument ignores the clear distinction between causes of action arising under tort law and those under the U.C.C. as adopted in Alabama. A Texas court recognized that distinction in Mid Continent Aircraft Corp. v. Curry County Spraying Service, Inc.,553 S.W.2d 935 (Tex.Civ.App.1977):
"`[U.C.C.] law, whose statutory language makes no reference to tort law in connection with products liability, concerns itself with the quality of the product by establishing standards of merchantability for a particular purpose... [while the tort law] concerns itself with safety standards by imposing strict liability upon one who sells an unreasonably dangerous product which causes physical harm. The considerations supporting either of the principles are not affected by the considerations underlying the other, and the standards of quality of a product, with the attendant risk of the bargain, are entirely distinct from its standards of safety, with a possible unreasonable risk of harm. It follows that a violation of the standards of safety which results in physical harm to the unreasonably dangerous product itself subjects the seller to the tort rule of strict liability.'553 S.W.2d at 940 .
"See, generally, Casrell v. Altec Industries, Inc.,335 So.2d 128 (Ala.1976); and Atkins v. American Motors Corp.,335 So.2d 134 (Ala.1976).
"Whether this product was unreasonably dangerous, therefore, is not a question properly addressed in an action brought under the provisions of the U.C.C. That question could properly be raised in an action brought under Alabama's Extended Manufacturer's Liability Doctrine (A.E.M.L.D.), but not in this U.C.C. action for breach of warranty.
"To cover the initial bare bones question (Was there a duty owed?) with flesh, we should reask the question: Did the sale of the subject product give rise to an implied warranty of merchantability in the sense that these two manufacturers promised the employee that he would not be injured by his use of or contact with their product? The answer must be made in the context of § 7-2-314: `[Whether this product was] fit for the ordinary purposes for which such goods are used.' In this instance, the productmade to [the employer's] specificationsperformed the job it was intended to do; and the manufacturers' warnings and precautions, accompanying the products, were in keeping with their knowledge of its inherent dangers. Thus, any duty arising under this section of the Code was not breached. Indeed, more precisely, these undisputed facts do not give rise to a warranty of merchantability, as contended by Shell.
"The implied warranty mandated by this section of the U.C.C. is one of commercial fitness and suitability, and a private right of action is afforded only where the user or consumer is injured by the breach of that warranty. That is to say, the U.C.C. does not impose upon the seller the broader obligation to warrant against health hazards inherent in the use of the product when the warranty of commercial fitness has been complied with. Those injured by the use of or contact with such a product, under these circumstances, must find their remedy outside the warranty remedies afforded by the U.C.C. For an excellent discussion of this subject, see J. White & R. Summers, Handbook of the Law Under *108 the Uniform Commercial Code, § 9-7, pp. 350-353 (2d ed.1980)."
Shell,
In Yarbrough v. Sears, Roebuck & Co., supra, the Yarbroughs had purchased a kerosene heater from Sears. A decal on the heater warned against using gasoline in the kerosene heater. The manufacturer included instructions and warnings with the heater, including several warnings against using gasoline in the kerosene heater.
About one year after purchasing the heater, Mr. Yarbrough purchased fuel "from a gasoline-type fuel pump labeled `kerosene'" and filled the heater with the fuel.
The Yarbroughs sued Sears and the manufacturer of the kerosene heater, alleging a violation of the AEMLD and breach of implied and express warranties. This Court summarized the Yarbroughs' claim as being to the effect that the defendants breached the implied warranty of merchantability because "the kerosene heater was unreasonably dangerous and therefore could not be merchantable." Yarbrough,
The defendants moved for a summary judgment. The Yarbroughs did not present any evidence indicating that the heater was "[un]fit for the ordinary purposes for which such goods are used." Shell,
"`Such an argument ignores the clear distinction between causes of action arising under tort law and those arising under the U.C.C. as adopted in Alabama.' Shell v. Union Oil Co.,489 So.2d 569 , 571 (Ala.1986). Whether the kerosene heater was unreasonably dangerous is not a question properly addressed in a claim alleging breach of warranty under the U.C.C., but it could be, and was, properly raised in a claim under the AEMLD."
Yarbrough,
In each case alleging a breach of the implied warranty of merchantability, the determination whether there was a breach requires a fact-intensive analysis. In paragraph 21 of his complaint, Spain alleged that the cigarettes designed, manufactured, and sold by the manufacturers "were not fit for the ordinary purposes for which they are used." Thus, he alleged a breach of the implied warranty of merchantability. Because this case is before the Eleventh Circuit on a motion to dismiss, the record before us does not contain any evidence indicating that the cigarettes smoked by Carolyn were "fit for the ordinary purposes for which they are used." *109 Therefore, this case is factually distinguishable from Shell and Yarbrough.
Allen v. Delchamps, Inc.,
The Allens sued Delchamps, alleging negligence, wantonness, violations of the AEMLD, and breach of the implied warranty of merchantability under § 7-2-314, Ala.Code 1975. Delchamps moved for a summary judgment on all claims. The trial court granted the motion and "certified the summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P."
We held, in pertinent part:
"In regard to their AEMLD claim, the plaintiffs must prove that Mrs. Allen `suffered injury or damages to [herself] or [her] property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer.' Atkins v. American Motors Corp.,335 So.2d 134 , 141 (Ala.1976). Similarly, the plaintiffs' implied warranty of merchantability claim requires that the plaintiffs show that the goods were unmerchantable or unfit for the ordinary purposes for which they are used. Ala.Code 1975, § 7-2-314. These two standards `go hand-in-hand,' at least as applied to food products, `for it is apparent that a food product is defective or unreasonably dangerous if it is unmerchantable or unfit for human consumption.' Cain v. Sheraton Perimeter Park S. Hotel,592 So.2d 218 , 220 (Ala.1991) (quoting Ex parte Morrison's Cafeteria of Montgomery, Inc.,431 So.2d 975 , 977 (Ala.1983))."
Allen,
In Ex parte General Motors Corp.,
Tucker sued, alleging breach of express warranties and breach of the implied warranties of merchantability and fitness for a particular purpose. The defendants, the automobile manufacturer and the automobile dealer, moved for a summary judgment. The trial court entered a summary judgment in favor of the defendants. Tucker appealed. The Court of Civil Appeals affirmed in part, reversed in part, and remanded. The Court of Civil Appeals affirmed the summary judgment on the breach of the implied warranties of merchantability and of fitness for a particular purpose. We granted Tucker's petition for a writ of certiorari.
On the breach of the implied warranty of merchantability, this Court held:
"As the Court of Civil Appeals held, `[t]o establish his claim of breach of the implied warranty of merchantability, Tucker must "`prove the existence of the implied warranty, a breach of that warranty, and damages proximately resulting from that breach.'"' [Tucker v. General Motors Corp.,] 769 So.2d [895,] 901 [ (Ala.Civ.App.1998) ] (quoting Barrington Corp. v. Patrick Lumber Co.,447 So.2d 785 , 787 (Ala.Civ.App.1984), quoting, in turn, Storey v. Day Heating and Air Conditioning Co.,56 Ala.App. 81 , 83,319 So.2d 279 , 280 (1975)). Because this case is before this Court on appeal from a summary judgment in favor of GM and Bishop, we are concerned only with whether Tucker presented substantial evidence of each of these three factors so as to create a jury question.
"As we have mentioned above, the only evidence in the record is Tucker's deposition and his affidavit. They contain uncontroverted evidence that Tucker purchased the car in question from Bishop [the automobile dealer]. It appears undisputed that Bishop is a `seller' of automobiles, as that term is defined in § 7-2-103, Ala.Code 1975. Thus, § 7-2-314's requirement that the seller be a `merchant with respect to goods of that kind' is met, and the record shows that Tucker has presented substantial evidence of the existence of the implied warranty. The record also contains evidence tending to establish a breach of the implied warranty of merchantability, because there was undisputed evidence tending to show that the car stalled repeatedly while Tucker was driving it and that Bishop failed to correct the problem when he took the car to Bishop for repair.
"Bishop does not dispute that evidence indicating that the car had a stalling problem was presented; it contends that this evidence is insufficient to create a genuine issue of material fact on the question whether it breached an implied warranty of merchantability. Bishop argues that to create a genuine issue of material fact, Tucker was required to present expert testimony as to why the car stalled.
"Bishop relies on Brooks v. Colonial Chevrolet-Buick, Inc.,579 So.2d 1328 (Ala.1991), and Sears, Roebuck & Co., Inc. v. Haven Hills Farm, Inc.,395 So.2d 991 (Ala.1981), as support for its argument that expert testimony was necessary in this case. Bishop argues that Tucker was required to present expert testimony identifying the specific cause of his car's stalling problem in order to avoid the entry of a summary judgment. [Bishop] argues:
"`In [Haven Hills Farm], a fittingly [analogous] case, a buyer brought a products liability claim for a defective car tire. The Supreme Court in [Haven Hills Farm] equated the legal *111 burden in a products liability case to that of the Plaintiff's burden in a breach of warranty case. [395 So.2d] at 995. In both types of cases, the Plaintiff must prove a defect, "which rendered the product not fit for its anticipated useand the defect links to the defendant."'
"Bishop's Brief at 11. Bishop also cites Brooks as support for its argument.
"Bishop's reliance on Brooks and Haven Hills Farm is, however, misplaced. Those cases involved claims brought under the Alabama Extended Manufacturer's Liability Doctrine (`AEMLD'). The AEMLD doctrine is based in tort law, having evolved from negligence law and having been influenced by Restatement (Second) of Torts. Haven Hills Farm,395 So.2d at 993-94 . Under the AEMLD, a plaintiff is required to prove, among other things, that a product is unreasonably dangerous as a result of a defect and that the plaintiff suffered injury as a result of the defect. Id. at 994.
"We are aware, of course, that in defining `defect,' this Court incorporated into AEMLD law some of the analysis applicable in cases arising, as does this one, under the UCC doctrine of the implied warranty of merchantability. Id. Specifically, this Court has combined the doctrine of `fitness for the ordinary purpose intended' of UCC law and the tort concept of `unreasonably dangerous' in defining `defect.' See Haven Hills Farm, supra, for further discussion of AEMLD law.
"We do not believe the fact that this Court borrowed some principles from UCC law in developing a definition of `defect,' as that term is used in AEMLD cases, forces the conclusion that principles of AEMLD law are always applicable in cases involving the implied warranty of merchantability. In fact, this Court has continued to recognize the clear distinction between AEMLD law and UCC law. See Yarbrough v. Sears, Roebuck & Co.,628 So.2d 478 (Ala.1993), and Shell v. Union Oil Co.,489 So.2d 569 (Ala.1986).
"Finally, we note that this Court has previously affirmed judgments entered against defendants in breach-of-warranty cases where the plaintiffs did not present the kind of expert testimony Bishop argues is required here. See Volkswagen of America, Inc. v. Dillard,579 So.2d 1301 (Ala.1991), and Ford Motor Co., Inc. v. Phillips,551 So.2d 992 (Ala.1989).
"Alabama law does not require that an expert witness testify in every case involving an alleged malfunction of a product where the plaintiff has sued alleging a breach of the implied warranty of merchantability. Given the uncontradicted evidence in this case, we conclude that Tucker presented substantial evidence of a breach of the implied warranty of merchantability and of damage and thereby created a genuine issue of material fact."
Ex parte General Motors Corp.,
II. The Statute of Limitations
The first certified question deals with the pivotal threshold issue of when the statutory limitations period begins to run on tort as well as warranty claims in a "smoking products-liability case."
*112 A. Tort Claims
The Eleventh Circuit notes that Spain contends that Carolyn did not have an actual injury, and thus the cause of action did not accrue, until August 15, 1998, when Carolyn was diagnosed with lung cancer. Accordingly, Spain argues that the complaint, which was filed on August 5, 1999, was filed before the statutory limitations period expired. Alabama's Wrongful Death Act, § 6-5-410, Ala.Code 1975, requires that an action be filed within two years of the date of the death. Furthermore, for the death to be actionable, the decedent must have been able to bring an action without the bar of limitations as a defense had he or she lived. Hall v. Chi,
The relevant inquiry turns upon whether Carolyn could have filed an action at the time of her death against the manufacturers alleging negligence or claims under the AEMLD that would not have been barred by the two-year statute of limitations applicable to all of the tort claims set forth in the complaint. See § 6-2-38, Ala.Code 1975.
The Eleventh Circuit observes: "The defendants argue that, taking the complaint as true, a `completed wrong' occurred, and thus Spain's cause of action arose, when Carolyn became addicted to cigarettes shortly after she began smoking in 1962."
While an amicus brief filed in this case by the plaintiff in the Tillman[4] case rejects addiction as a compensable physical injury, Spain makes no such concession. To the contrary, Spain states in his brief to this Court that "[t]he issue of whether Mrs. Spain's addiction, standing alone, was a legal injury, or that her addiction proximately caused or contributed to her death, depends on medical opinions and/or historical facts which should not be addressed in the context of a Rule 12(b)(6) motion to dismiss."
The manufacturers contend that addiction to cigarettes is not a compensable tort; they cite five cases in support of that contention. The manufacturers first cite Castano v. American Tobacco Co.,
The manufacturers' resistance to the viability of addiction as a claim for relief does not justify the conclusion that they have therefore waived any defense of limitations should the claim be deemed viable. In their brief to this Court, the manufacturers argue: "If, on the other hand, this Court were to find that addiction to cigarettes is a sufficient injury to create a cause of action, then application of the `first-injury' rule would require that Spain's entire complaint be dismissed on statute of limitations grounds." Even assuming that Spain may disavow any damages from addiction, such a litigation posture should not control our analysis of the date of the first injury in determining when the applicable limitations period begins to run. Regardless of the posturing by the parties, addiction to nicotine is a critical consideration in an analysis of the difficult issue of applying the statute of limitations to claims by smokers in smoking products-liability cases.
The United States Court of Appeals for the Ninth Circuit found addiction to nicotine to be the event starting the running of the limitations period in Soliman v. Philip Morris Inc.,
"`[W]here an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date.'"
Paragraph 25 of Spain's complaint states: "The [manufacturers'] cigarette products, when used as intended[,] were highly likely to induce in foreseeable users a state of habituation, habit formation and/or dependence, characterized by users' great difficulty in terminating or restricting their chronic use." Such an allegation is not atypical, given that addiction to nicotine has been recognized as an essential part of a smoker's claims. See, e.g., Barnes v. American Tobacco Co.,
Addiction to nicotine is a compensable injury, at a minimum, in terms of the costs of supporting an addiction. Assuming no other physical injury has previously manifested itself, the economic loss attributable to supporting an addiction is the first injury a smoker addicted to cigarettes sustains, regardless of whether a plaintiff frames the complaint to seek damages for that economic loss. That other damages might follow, including, but not limited to, injury to the person, such as shortness of breath, loss of the sense of taste and/or smell, coughing, and throat irritation, as well as medical expenses, should not defeat the commencement of the running of the applicable statutory limitations period. See Garrett v. Raytheon Co.,
Where multiple acts are involved, subsequent damages have been recognized as flowing from subsequent acts, and the fact that a limitations period may have expired as to an earlier act does not bar an action for the subsequent injury. See Employers Ins. Co. of Alabama v. Rives,
Spain contends that whether Carolyn's addiction proximately caused or contributed to her death depends on medical opinions and/or historical facts, thus precluding a dismissal on the manufacturers' motion made pursuant to Rule 12, Fed.R.Civ.P. First, this contention impermissibly restricts the analysis of the first injury to events causing Carolyn's death. As previously noted, the relevant inquiry is whether Carolyn could maintain an action against the manufacturers at the time of her death. Second, whether the contention contradicts Spain's complaint, as the manufacturers contend, is not a matter before us. Assuming that argument is available to Spain, the procedure for applying the facts to the applicable law involves the Federal Rules of Civil Procedurenot Alabama law. It is not the province of this Court to supply answers to questions governed by federal law in response to a certified question. See Spain v. Brown & Williamson Tobacco Corp.,
We therefore answer the first question as to the tort claims by stating that the statutory limitations period begins to run at the moment a smoker recognizes that he or she has become addicted.
B. Implied-Warranty Claims
The applicable statute of limitations for a claim for breach of implied warranty is set forth in § 7-2-725, Ala.Code 1975, which provides that "[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued," § 7-2-725(1), and that "a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs," § 7-2-725(2). Spain must avoid the manufacturers' defense to the wrongful-death action that Carolyn could not have maintained a claim had she lived. See § 6-5-410, Ala.Code 1975, and Hall v. Chi, supra. Under § 7-2-725, any injury occurring from the breach of an implied warranty within the four-year period before Carolyn's death on August 5, 1999, would be actionable. But, if the evidence reflects continued consumption with knowledge of the risk of cancer in the late 1990s and if the explicit warnings on each package of cigarettes are deemed sufficient, significant problems of proof of a causal connection are presented. See Official Comment to § 7-2-314, at paragraph 13 ("Action by the buyer following an examination of the goods which ought to have indicated the defect complained of can be shown as matter bearing on whether the breach [of the implied warranty of merchantability] itself was the cause of the injury.") (emphasis added). See also Official Comment to § 7-2-316, at paragraph 8 ("Of course if the buyer discovers the defect and uses the goods anyway, or if he unreasonably fails to examine the goods before he uses them, resulting injuries may be found to result from his own action rather than proximately from a breach of warranty.") (emphasis added). See also Official Comment to § 7-2-715, at paragraph 5 ("Where the injury involved follows the use of goods without discovery of the defect causing the damage, the question of `proximate' cause turns on whether it was reasonable for the buyer to use the goods without such inspection as would have revealed the defects. If it was not reasonable for him to do so, or if he did in fact discover the defect prior to his use, the *116 injury would not proximately result from the breach of warranty.") (emphasis added). See also Green v. American Tobacco Co.,
III. Remaining Questions
We respectfully decline to answer the remaining questions. After the federal litigation has produced a final determination of the merits of the manufacturers' defense of limitations and causation under the principles set forth in this opinion, whether on motion practice pursuant to either Rule 12, Fed.R.Civ.P., or Rule 56, Fed.R.Civ.P.; on a judgment as a matter of law; or on a judgment after a trial on the merits, as the Eleventh Circuit might deem appropriate, any remaining questions can again be submitted to this Court pursuant to Rule 18, Ala. R.App. P.
CERTIFIED QUESTION 1 AND CERTIFIED QUESTIONS a. AND b. ANSWERED; OTHER QUESTIONS DECLINED.
PART I.A.: MOORE, C.J., and HOUSTON, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.
JOHNSTONE, J., concurs specially.
STUART, J., expresses no opinion.
PART I.B.: MOORE, C.J., and LYONS and HARWOOD, JJ., concur.
JOHNSTONE and WOODALL, JJ., concur specially.
HOUSTON and BROWN, JJ., concur in the result.
STUART, J., expresses no opinion.
PART II.A.: HOUSTON and LYONS, JJ., and MADDOX, Special Justice,[*] concur.
STUART, J., concurs in part.
BROWN, J., concurs in the result.
JOHNSTONE, J., concurs in part and dissents in part.
MOORE, C.J., and HARWOOD and WOODALL, JJ., dissent.
PART II.B.: MOORE, C.J., and HOUSTON, LYONS, and HARWOOD, JJ., concur.
WOODALL, J., concurs in the result.
JOHNSTONE, J., concurs in part and dissents in part.
BROWN and STUART, JJ., express no opinion.
PART III.: MOORE, C.J., and LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.
HOUSTON, J., concurs in part and dissents in part.
JOHNSTONE, J., dissents.
STUART, J., expresses no opinion.
MOORE, Chief Justice (concurring in Parts I.A., I.B., II.B., and III, and dissenting from Part II.A.).
I concur with the per curiam opinion as to Parts I.A., I.B., II.B., and III.
I dissent from Part II.A. of the per curiam opinion because I do not believe that "[a]ddiction to nicotine is a compensable injury,"
HOUSTON, Justice (concurring in Parts I.A., II.A., and II.B., concurring in the result in Part I.B., and concurring in part and dissenting in part as to Part III).
I concur as to Parts I.A., "Tort Claims," and II, "The Statute of Limitations," in the per curiam opinion.
I concur in the result as to I.B., "Implied-Warranty Claims."
As to Part III, I concur except as follows. I would answer certified question 2 in the affirmative. See Ex parte Liberty Nat'l Life Ins. Co.,
The 20-year period of the rule of repose begins to run against a plaintiff's claims the first time those claims could have been asserted, regardless of the plaintiff's notice of the claims. Ex parte Liberty Nat'l Life Ins. Co.,
BROWN, Justice (concurring in Part I.A. and Part III, concurring in the result in Parts I.B. and II.A., and expressing no opinion as to Part II.B.).
I concur in Part I.A. and Part III of the per curiam opinion. I concur in the result in Part I.B. of the per curiam opinion. I concur only in the result in Part II.A. of the per curiam opinion that holds that the statutory period of limitations began to run when Carolyn Spain became addicted to cigarettes.
JOHNSTONE, Justice (concurring in part, concurring specially in part, and dissenting in part).
I concur in seven of the holdings in the main opinion. I will simply recite them in the order of their appearance:
1. "Spain's negligence and wantonness claims are, at this stage of the proceedings, viable alternatives to his AEMLD claim,"
2. "[A] claim alleging breach of an implied warranty of merchantability is separate and distinct from an AEMLD claim and is viable to redress an injury caused by an unreasonably dangerous product,"
3. "Alabama's Wrongful Death Act, § 6-5-410, Ala.Code 1975, requires that an action be filed within two years of the date of the death. Furthermore, for the death to be actionable, the decedent must have been able to bring an action without the bar of limitations as a defense had he or she lived. Hall v. Chi,
4. "Where multiple acts are involved, subsequent damages have been recognized as flowing from subsequent acts, and the fact that a limitations period may have expired as to an earlier act does not bar an action for the subsequent injury,"
5. "[A] new period of limitations for subsequent sales to an admitted addict of additional packs of cigarettes containing *118 warnings may produce additional injuries giving rise to new causes of action with new limitations periods ...,"
6. "The applicable statute of limitations for a claim for breach of implied warranty is set forth in § 7-2-725, Ala.Code 1975, which provides that `[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued,' § 7-2-725(1), and that `a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs,' § 7-2-725(2),"
7. "Under § 7-2-725, any injury occurring from the breach of an implied warranty within the four-year period before Carolyn's death on August 5, 1999, would be actionable,"
I concur in the seven foregoing holdings.
I respectfully dissent, however, from a different set of interrelated holdings:
1. "[A]ddiction to nicotine is a critical consideration in an analysis of the difficult issue of applying the statute of limitations to claims by smokers in smoking products-liability cases,"
2. "The date Carolyn became addicted to nicotine is the date the statutory limitations period began to run as to Spain's tort claims,"
3. "Addiction to nicotine is a compensable injury, at a minimum, in terms of the costs of supporting an addiction. Assuming no other physical injury has previously manifested itself, the economic loss attributable to supporting an addiction is the first injury a smoker addicted to cigarettes sustains,"
4. "[T]he statutory limitations period begins to run at the moment a smoker recognizes that he or she has become addicted,"
This set of holdings suffers a number of frailties.
First, it is confused. Is the addiction the first injury, or are the "costs of supporting an addiction," ostensibly the costs of cigarettes, the first injury? If the cigarette costs are the first injury, the addiction must be the cause or a cause rather than an injury. Indeed, Barnes v. American Tobacco Co.,
Second, if the main opinion means to hold that the addiction itself is the first injury, this holding is unsupported by authority, and is, indeed, contradicted by one of the cases the main opinion cites, as *119 already mentioned. The main opinion relies principally on Soliman v. Philip Morris, Inc.,
The Soliman court expressly declined to hold that addiction is an injury. Instead, the Soliman court held that the plaintiff's specifically claiming "addiction as one of his distinct injuries,"
"We need not decide the matter [whether addiction is an injury] here, however, because Soliman can't claim that his addiction is an appreciable injury and, at the same time, ask us to ignore it in determining when his claim accrued. If Soliman had actual or constructive knowledge of his addiction before he was diagnosed with respiratory illness, the date of actual or constructive knowledge of addiction would govern."
The Barnes case was a class action by cigarette smokers for medical monitoring. The issue was whether the putative class should be certified. The Barnes court did not hold that addiction was an injury. Rather, the Barnes court held "that addiction is the linchpin of causation in this case."
Third, even if addiction be a legally cognizable injury, Spain's complaint still encompasses claims based on distinct acts of negligence or wantonness in the defendants' manufacture of cigarettes committed after the onset of the addiction, and still encompasses AEMLD and breach of warranty claims based on sales made after the onset of the addiction; and such preexisting addiction cannot constitute injury proximately caused by such subsequent breaches of duty and therefore cannot begin the running of any limitation period to bar such claims. That is, the effect could not have preceded the cause.
"Defendants manufactured hundreds of different types of cigarettes over the years and have even made changes within each brand...."
Barnes,
Fourth, the holding that "[a]ddiction to nicotine is a compensable injury,"
My final dissenting observations address dicta rather than holdings in the main opinion. In several places, the main opinion anticipates that Spain may encounter problems of proof of causation. "No-causal-relation," however, is an affirmative defense to be pleaded and proved by these defendants when the time for such pleading and proof comes. Casrell v. Altec Indus., Inc.,
I was the first of the Justices on this Court to undertake to answer the questions in this case certified to us by the Eleventh Circuit Court of Appeals. I respectfully submit that my version of the answers, which follows, is correct and comprehensive.
The United States Court of Appeals for the Eleventh Circuit certified the following questions to this Court:
"1. When does the Alabama statute of limitations for claims brought under the AEMLD, and claims premised on negligence, wantonness, breach of warranty, and conspiracy begin to run in a smoking products liability case?
"2. Does the Alabama rule of repose apply in a smoking products liability case?
"3. If so, when does the Alabama rule of repose begin to run in a smoking products liability case?
"4. Before the appearance of federally mandated warning labels on cigarette packages, were cigarettes `unreasonably dangerous' under the AEMLD?
*121 "5. Since the appearance of federally mandated warning labels on cigarette packages, have cigarettes been `unreasonably dangerous' under the AEMLD?"
Spain v. Brown & Williamson Tobacco Corp.,
"a. that the negligence and wantonness claims merge into an AEMLD claim;
"b. that the sale of cigarettes does not violate the implied warranty of merchantability under Code of Alabama 1975, § 7-2-314;
"c. that the fraudulent suppression claim, which is a basis for Spain's conspiracy claim, is not viable under Alabama law; and
"d. that, if cigarettes are not unreasonably dangerous as a matter of Alabama law, the fraudulent misrepresentation claim, which is a basis for the conspiracy claim, is not viable under Alabama law."
Id. The Eleventh Circuit recited the following facts:
"This is a cigarette product liability case initially brought in the Alabama state courts by Paul Spain, as administrator of the estate of Carolyn Spain, against Phillip Morris, Inc., R.J. Reynolds Tobacco Company, and Brown & Williamson Tobacco Corporation, seeking recovery under the Alabama wrongful death statute. After removing the case to federal court on diversity grounds, the defendants filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Stating only that the motion was `well-taken,' the district court granted it and dismissed all of Spain's claims with prejudice. Spain has appealed. For reasons we will explain, we have concluded that certain issues of state law should be certified to the Alabama Supreme Court.
"I. BACKGROUND
"A. FACTS
"Because the case is before us on a Rule 12(b)(6) dismissal, we take the facts from the allegations in the complaint, assuming those allegations to be true. See Brown v. Crawford County, Georgia,960 F.2d 1002 , 1010 (11th Cir.1992).
"Carolyn Spain started smoking cigarettes in 1962, when she was `approximately 15 years of age and was a multi-pack per day smoker.' She became addicted to the nicotine in cigarettes early on and was unaware at the time that she was becoming addicted. She primarily smoked cigarettes manufactured by Phillip Morris, Inc., R.J. Reynolds Tobacco Company, and Brown & Williamson Tobacco Corporation. Carolyn's smoking was the proximate cause of her lung cancer, which was diagnosed on August 15, 1998. Unable to stop, she continued smoking until 1999. She has since died.
"B. PROCEDURAL HISTORY
"On August 5, 1999, Paul Spain, as administrator of the estate of Carolyn Watts Spain, filed suit against the defendants in state court, seeking recovery under the Alabama wrongful death statute based on the defendants' alleged wrongful acts and omissions in connection with the manufacture, design and sale of cigarettes. The complaint asserted five causes of action: (1) liability under the Alabama Extended Manufacturers Liability Doctrine (`AEMLD'); (2) negligence; (3) wantonness; (4) breach of warranty; and (5) conspiracy.
*122 "The defendants removed the case to federal court, and after removal filed a motion to dismiss all of Spain's claims under Federal Rule of Civil Procedure 12(b)(6). They argued, among other things, that the claims were barred by Alabama's rule of repose and the applicable statutes of limitations; that as a matter of Alabama law cigarettes are not unreasonably dangerous; and that some of Spain's claims were preempted by federal law. Stating only that the motion was `well-taken,' the district court granted it and dismissed all of Spain's claims with prejudice. This is Spain's appeal of that dismissal."
Spain,
"a. Negligence and Wantonness
"The defendants contend that Spain's negligence and wantonness claims are merged into his AEMLD claim as a matter of Alabama law because those claims are based on the same underlying allegations and theory, which is that cigarettes are unreasonably dangerous. In Veal v. Teleflex, Inc.,586 So.2d 188 (Ala. 1991), the Court held that the trial court did not err when it instructed the jury only on the plaintiff's AEMLD claim and refused to instruct the jury on negligence and wantonness. The court stated that the substance of plaintiff's complaint `was that it placed into the stream of commerce a product that was unreasonably dangerous for its intended use' and that constituted an AEMLD claim. See id. at 190-91; accord Wakeland [v. Brown & Williamson Tobacco Corp.], 996 F.Supp. [1213] at 1217-18 [ (1998) ].
"In light of Veal, and because the only allegation in the complaint's counts for negligence and wantonness that are not in the AEMLD count is that the `[d]efendants negligently designed, manufactured, sold, marketed and/or failed to warn about cigarettes that were unreasonably dangerous ...,' we are convinced that the negligence and wantonness claims in this case merge into the AEMLD claim.
"b. Breach of Warranty
"The defendants contend that Spain's implied warranty of merchantability claim must fail because Spain alleges only that cigarettes are unreasonably dangerous and defectively designed, manufactured and marketed, and not that they were commercially unfit or unsuitable for smoking. The defendants argue that Spain's allegations constitute a products liability claim, instead of a breach of implied warranty of merchantability claim.
"Ala.Code § 7-2-314, which governs the implied warranty of merchantability, provides as follows:
"`Unless excluded or modified (Section 7-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.'
"Ala.Code § 7-2-314(1). In order to be merchantable, goods must be fit `for the ordinary purposes for which such goods are used.' See Allen [v. Delchamps, Inc.], 624 So.2d [1065, 1068 (Ala.1993) ].
"As we read Spain's complaint, his theory is that the cigarettes were unfit for the ordinary purpose for which they are used because they caused cancer, making them unreasonably dangerous and not merchantable. The Alabama Supreme Court rejected a similar claim and stated that `[s]uch an argument ignores the clear distinction between causes of action arising under tort law *123 and those arising under the [Uniform Commercial Code] as adopted in Alabama.' Shell v. Union Oil Co.,489 So.2d 569 , 571 (Ala.1986) (no claim for breach of warranty regarding product containing benzene, a carcinogen known to cause leukemia, when product was in conformance with specifications; such a claim is instead an AEMLD action). Unless the Alabama Supreme Court tells us differently, we are convinced that the complaint does not state a claim for breach of an implied warranty of merchantability.
"c. Conspiracy
"The defendants contend that Spain's conspiracy count cannot stand, because it is based on claims of alleged fraudulent suppression and fraudulent misrepresentation of information about smoking risks that are themselves not viable. They argue that those claims are not viable, because Alabama imposes no duty to disclose facts that are already known and the risks of smoking were common knowledge.
"`[A] conspiracy itself furnishes no cause of action. The gist of the action is not the conspiracy but the underlying wrong that was allegedly committed. If the underlying cause of action is not viable, the conspiracy claim must also fail.' Allied Supply Co., Inc. v. Brown,585 So.2d 33 , 36 (Ala.1991) (internal citations omitted). Therefore, to the extent Spain's conspiracy claim is premised on claims of fraudulent suppression and fraudulent misrepresentation, those claims must be viable for his conspiracy claim to be.
"Under Alabama law, a fraudulent suppression claim requires a plaintiff to show:
"`(1) that the defendant had a duty to disclose an existing material fact; (2) that the defendant suppressed that existing material fact; (3) that the defendant had actual knowledge of the fact; (4) that the defendant's suppression of the fact induced the plaintiff to act or to refrain from acting; and (5) that the plaintiff suffered actual damage as a proximate result of acting or not acting.'
"Ex Parte Household Retail Services,744 So.2d 871 , 879 (Ala.1999). Under Cantley [v. Lorillard Tobacco Co.,681 So.2d 1057 , 1061 (Ala.1996) ], there is no state law duty to disclose facts other than through advertising or promotion. See Cantley,681 So.2d at 1061-62 . Consequently, unless the Alabama Supreme Court tells us differently, we are convinced that the fraudulent suppression claim fails and the conspiracy claim should be dismissed to the extent it relies on the fraudulent suppression claim.
"A fraudulent misrepresentation claim requires a plaintiff to show:
"`(a) that the defendant made a false misrepresentation concerning a material fact; (b) which (1) the defendant either knew was false when made, or (2) was made recklessly and without regard to its truth or falsity, or (3) was made by telling the plaintiff that the defendant had knowledge that the representation was true while not having such knowledge; (c) which the plaintiff justifiably relied upon; and (d) damage to the plaintiff proximately resulting from his reliance.'
"Ex Parte Household Retail Services,744 So.2d at 877 (internal marks and citations omitted). The Alabama Supreme Court's answer to the question we are certifying it about whether cigarettes are unreasonably dangerous under the AEMLD may resolve the issue of whether Spain has a valid fraudulent *124 misrepresentation claim. If that Court concludes cigarettes are not unreasonably dangerous as a matter of Alabama law, we are convinced that Spain will be unable to establish Carolyn's justifiable reliance and as a result, his fraudulent misrepresentation claim will fail and his conspiracy claim should be dismissed to the extent it relies on the fraudulent misrepresentation claim. That conclusion is, of course, subject to revision if the Alabama Supreme Court tells us that the state law premises for it are mistaken."
Spain,
The federal standard of review of a Rule 12(b)(6), Fed. R. Civ. P., motion is that:
"`The motion must be denied unless it is clear the plaintiff can prove no set of facts in support of the claims in the complaint.' [South Florida Water Management Dist. v. Montalvo,84 F.3d 402 , 406 (11th Cir.1996) ] (citation omitted).
"....
"The sufficiency of a complaint is measured by Fed.R.Civ.P. 8(a), which requires only `a short and plain statement of the claim showing that the pleader is entitled to relief.' The Supreme Court has emphasized that the Federal Rules `do not require a claimant to set out in detail the facts upon which he bases his claim.' Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,507 U.S. 163 , 168,113 S.Ct. 1160 , 1163,122 L.Ed.2d 517 (1993) (quotations and citations omitted). Our Circuit, interpreting the Federal Rules, has repeatedly stated that `a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.' Banco Continental v. Curtiss Nat'l Bank of Miami Springs,406 F.2d 510 , 514 (5th Cir.1969) (quotations, citations, and footnote omitted); see also Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A.,711 F.2d 989 , 998 (11th Cir.1983) (collecting cases). In fact, `[t]his mandate is particularly true where, as here, issues of negligence are involved.' Banco,406 F.2d at 514 ."
Canadyne-Georgia Corp. v. NationsBank, N.A.,
I first address when the statute of limitations began to run on Spain's negligence, wantonness, AEMLD, breach of warranty, and conspiracy claims. "The plain language of the wrongful death statute states that the personal representative may commence a wrongful death action, `provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.'" Curtis v. Quality Floors, Inc.,
"An action alleging negligence, wantonness, or liability under the AEMLD must be brought within two years after the cause of action accrued. See Ala. Code 1975, § 6-2-38(l). A cause of action based on warranty claims must be brought within four years after the cause of action accrued. See § 7-2-725(1), (2). A cause of action `accrues' as soon as the party in whose favor it arises is entitled to maintain an action thereon. See Garrett v. Raytheon Co.,368 So.2d 516 (Ala.1979), for an in-depth discussion of when a cause of action accrues for purposes of the statute of limitations. A party has a cause of action, and the statute of limitations begins to run, on the date the first legal injury occurs, but not necessarily from the date of the act causing the injury. See Brotherhood of Locomotive Firemen & Enginemen v. Hammett,273 Ala. 397 ,140 So.2d 832 (1962). That is, where the act complained of does not itself constitute a legal injury at the time, but the plaintiff's injury comes only as a result of, and in furtherance and subsequent development of, the act of the defendant, the cause of action `accrues,' and the statutory period of limitations begins to run, `"when, and only when, the damages are sustained."' Garrett v. Raytheon Co., supra, at 519, quoting [Kelley] v. Shropshire,199 Ala. 602 , 605,75 So. 291 , 292 (1917). At the time of the first legal injury, the period of limitations begins to run, whether or not the full amount of damages is apparent. Id.; see Stephens v. Creel,429 So.2d 278 (Ala.1983); 51 Am.Jur.2d. § 135 (1970); Atkins v. American Motors Corp.,335 So.2d 134 (Ala.1976)."
Smith v. Medtronic, Inc.,
Thus, the two-year limitation period for a claim for injury caused by a negligent or wanton act or omission would begin to run at the date of the first legally recognizable injury resulting proximately from the particular negligent or wanton act or omission alleged and proven. Because one of the essential elements of an AEMLD action is the sale of the product, Beam v. Tramco, Inc.,
"[A] cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs." § 7-2-725(2), Ala.Code 1975. Consumer goods are "goods that are used or bought for use primarily for personal, family, or household purposes." § 7-9A-102(23), Ala.Code 1975. See § 7-2-103, Ala.Code 1975, and Wright v. Cutler Hammer, Inc.,
In their briefs to this Court, the parties concede that addiction to nicotine is not a compensable injury. "This Court will not decide questions that are moot or that have become purely academic." Smith v. Cook,
"Liability for civil conspiracy rests upon the existence of an underlying wrong, and if the action alleged to constitute the underlying wrong provides no cause of action, then neither does the conspiracy itself." Barber v. Business Prods. Ctr., Inc.,
"Under § 6-2-3, a fraud claim accrues at the time of the discovery by the aggrieved party of the fact constituting the fraud. [Lader v. Lowder Realty Better Homes & Gardens,512 So.2d 1331 (Ala. 1987) ]. The time of discovery of a fraud claim is the time when the party actually discovered the fraud or had facts that, upon closer examination, would have led to the discovery of the fraud. Lader. `[F]raud is discovered as a matter of law... when one receives documents that would put one on such notice that the fraud reasonably should be discovered.' Hickox v. Stover,551 So.2d 259 , 262 (Ala.1989)."
Gray v. Liberty Nat'l Life Ins. Co.,
The record presented to this Court does not contain any information on when Carolyn discovered or when she should have discovered the tobacco defendants' alleged fraudulent suppressions or fraudulent misrepresentations concerning the dangerousness of cigarettes made with tobacco contaminated or adulterated with additives during the manufacturing process. Therefore, we cannot determine the date when the statutory period of limitations began to run on these claims.
Next I address whether "the Alabama rule of repose appl[ies] in a smoking products liability case[.]" In this case, Spain's claims are grounded on the personal injuries that caused Carolyn's death. Whether *127 the Alabama rule of repose bars a plaintiff's claims for personal injury is an issue of first impression. The principles which govern this issue, however, are well settled.
"Since McArthur v. Carrie's Admr.,32 Ala. 75 (1858), this State has followed a rule of repose, or rule of prescription, of 20 years. This principle of repose or prescription is similar to a statute of limitations, but not dependent upon one, and broader in scope. Scott v. Scott,202 Ala. 244 ,80 So. 82 (1918); Patterson v. Weaver,216 Ala. 686 ,114 So. 301 (1927). It is a doctrine that operates in addition to laches. Unlike laches, however, the only element of the rule of repose is time. It is not affected by the circumstances of the situation, by personal disabilities, or by whether prejudice has resulted or evidence obscured. Wilkerson v. Wilkerson,230 Ala. 567 ,161 So. 820 (1935); 30A C.J.S., Equity § 113 (1965), at p. 33. It operates as an absolute bar to claims that are unasserted for 20 years. Roach v. Cox,160 Ala. 425 ,49 So. 578 (1909). The rationale for this absolute bar to such actions was set forth in Snodgrass v. Snodgrass,176 Ala. 276 ,58 So. 201 (1912), as follows:
"`As a matter of public policy, and for the repose of society, it has long been the settled policy of this state, as of others, that antiquated demands will not be considered by the courts, and that, without regard to any statute of limitations, there must be a time beyond which human transactions will not be inquired into. It is settled that, after a period of 20 years, without any payment, settlement, or other recognition of liability, mortgages and liens will be presumed to have been paid, settlements will be presumed to have been made by administrators, trustees, agents, and other persons occupying fiduciary positions. It is necessary for the peace and security of society that there should be an end of litigation, and it is inequitable to allow those who have slept upon their rights for a period of 20 years, after they might have demanded an accounting, and after, as is generally the case, the memory of transactions has faded and parties and witnesses passed away, to demand an accounting. The consensus of opinion in the present day is that such presumption is conclusive, and the period of 20 years, without some distinct act in recognition of the trust, a complete bar; and, as said in an early case, "the presumption rests not only on the want of diligence in asserting rights, but on the higher ground that it is necessary to suppress frauds, to avoid long dormant claims, which, it has been said, have often more of cruelty than of justice in them, that it conduces to peace of society and the happiness of families, `and relieves courts from the necessity of adjudicating rights so obscured by the lapse of time and the accidents of life that the attainment of truth and justice is next to impossible.'" Harrison et al. v. Heflin, Adm'r, et al.,54 Ala. 552 , 563, 564 [ (1875) ]; Greenlees' Adm'r v. Greenlees et al.,62 Ala. 330 [ (1878) ]; Nettles v. Nettles,67 Ala. 599 , 602 [(1880) ]; Garrett v. Garrett,69 Ala. 429 , 430 [ (1881) ]; Semple v. Glenn,91 Ala. 245 , 260, ...9 South. 265 ,24 Am.St.Rep. 929 [ (1891) ]; Roach v. Cox,160 Ala. 425 , 427,49 South. 578 ,135 Am.St.Rep. 107 [ (1909) ].' (Emphasis [not] supplied.) Snodgrass, at176 Ala. 280 , 281,58 So. 201 .
"The rule of repose or prescription is a defensive matter similar to, but broader than, a statute of limitation. Wilkerson, supra; Patterson, supra; 30A *128 C.J.S., Equity § 113, at p. 33. Thus, it is unlike adverse possession, which affirmatively establishes title. The rule of repose has been described as `... a rule of property in this state, [and] tends to the repose of society, and the quieting of litigation.' Spencer v. Hurd,201 Ala. 269 , 270,77 So. 683 , 684 (1918).
"The only circumstance that will stay the running of the 20-year period of repose is a recognition of the existence of the claimant's right by the party defending against the claim. Eatman v. Goodson,262 Ala. 242 ,78 So.2d 625 (1954); Hendley v. First National Bank of Huntsville,235 Ala. 664 ,180 So. 667 (1937); 30A C.J.S., Equity § 113, at p. 33, and n. 24. ...
"....
"Recently, in Lankford v. Sullivan, Long & Hagerty,416 So.2d 996 (Ala. 1982), this Court struck down, as unconstitutional, a statutorily imposed 10-year rule of repose. Our holding today in no way conflicts with Lankford. The 20-year rule of repose applied here differs materially from the stricken 10-year rule (Code 1975, § 6-5-502(c)). For example, the 20-year common law rule is couched in terms of the `running of the period against claims,' `absolute bar to unasserted claims,' `lack of diligence in asserting rights,' `sleeping upon their rights,' etc. The voided statute, on the other hand, sought to commence the running of the 10-year period from some arbitrary date unrelated in point of time to the accrual of a cause of action or the prior existence of a viable and cognizable claim. The fact that the common law rule is premised upon the pre-existing right to assert a claim is demonstrated in Duncan v. Johnson,338 So.2d 1243 (Ala.1976), in which the Court refused to apply the 20-year bar against remaindermen."
Boshell v. Keith,
In Duncan v. Johnson,
"Twenty-two years transpired between the sale of the land for division and the institution of [the] instant case, and appellants-respondents rely heavily upon prescription, a rule of repose, as a bar to the action. In Bass v. Bass,88 Ala. 408 , [412,]7 So. 243 [, 244] (1889) the court stated tersely through Stone, C.J.:
"`It is certainly the general rule, that neither a statutory bar, nor prescription [rule of repose] runs against a remainder-man, until the termination of the estate of the life-tenant. There must be a right to sue, before the bar begins to run.'
"The general inapplicability of the doctrine of prescription [rule of repose] to estates in reversion or remainder has been uniformly observed. Dallas Compress Co. v. Smith,190 Ala. 423 ,67 So. 289 (1914); Kidd v. Browne,200 Ala. 299 ,76 So. 65 (1917); Kyser v. McGlinn,207 Ala. 82 ,92 So. 13 (1921). Cases such as Wilkerson v. Wilkerson,230 Ala. 567 ,161 So. 820 (1935), not involving contests between remaindermen and life tenants or tenants per autre vie are inapposite."
I next address whether, "[b]efore the appearance of federally mandated warning labels on cigarette packages, ... cigarettes [were] `unreasonably dangerous' under the AEMLD[.]"
"In Atkins v. American Motors Corp.,335 So.2d 134 (Ala.1976), this Court set out the elements of the AEMLD. In order to establish liability under the AEMLD, a plaintiff must show the following:
"`(1) [that] he suffered injury or damages to himself or his property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if
"`(a) the seller is engaged in the business of selling such a product, and
"`(b) it is expected to, and did, reach the user or consumer without substantial change in the condition in which it was sold.'
"Atkins,335 So.2d at 141 . Stated differently, a defendant will be liable under the AEMLD if it manufactures, designs, or sells an unreasonably dangerous product that reaches the consumer substantially unaltered and, because of its unreasonably dangerous condition, injures *130 the consumer when put to its intended use. Under the AEMLD, therefore, a defective product is one that is unreasonably dangerous, i.e., one that is not fit for its intended purpose or that does not meet the reasonable expectations of the ordinary consumer. Casrell v. Altec Industries, Inc.,335 So.2d 128 , 133 (Ala.1976); Entrekin v. Atlantic Richfield Co.,519 So.2d 447 (Ala.1987)."
Beam,
"This Court has adopted the `reasonable expectations' test for determining if food is unmerchantable or unreasonably dangerous. Cain [v. Sheraton Perimeter Park S. Hotel,592 So.2d 218 , 221 (Ala.1991)]; [Ex parte] Morrison's [Cafeteria of Montgomery, Inc.,431 So.2d 975 , 978 (Ala.1983)]. Under this test, the pivotal issue is what is reasonably expected by the consumer in the food as served, and the `[n]aturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served.' Morrison's,431 So.2d at 978 (quoting Zabner v. Howard Johnson's, Inc.,201 So.2d 824 , 826 (Fla.Dist.Ct. App.1967)). Because the terms `defect,' `unreasonably dangerous,' and `merchantable' all focus on the expectations of the consumer, this Court has found the reasonable expectations test to be compatible with both the AEMLD and the implied warranty of merchantability. Cain,592 So.2d at 221 . `Generally, the question of what a consumer is reasonably justified to expect to find in his food is a question for the jury, unless the court finds, as a matter of law, that the consumer would reasonably expect to find the item in his food.' Id."
Allen v. Delchamps, Inc.,
Uncontaminated, unadulterated tobacco does "meet the reasonable expectations of the ordinary consumer," Beam,
The tobacco defendants acknowledge, however, that "[p]roducts like tobacco can be `unreasonably dangerous' ... when contaminated *131 with adulterating, foreign substances." Appellees' brief, p. 30. Spain's complaint alleges that the tobacco defendants "deliberately added carcinogens and other harmful ingredients to cigarettes." Complaint, p. 28. Spain alleges also that the tobacco defendants "were aware of over forty known carcinogens in cigarettes, and continued to sell and promote the sale of cigarettes without disclosing this information." Complaint, p. 28.
"[T]he FDA itself has previously taken the position that if tobacco products were within its jurisdiction, `they would have to be removed from the market because it would be impossible to prove they were safe for their intended us[e].' Public Health Cigarette Amendments of 1971: Hearings before the Commerce Subcommittee on S. 1454, 92d Cong., 2d Sess., 239 (1972) (hereinafter 1972 Hearings) (statement of FDA Comm'r Charles Edwards). See also Cigarette Labeling and Advertising: Hearings before the House Committee on Interstate and Foreign Commerce, 88th Cong., 2d Sess., 18 (1964) (hereinafter 1964 Hearings) (statement of Dept. of Health, Education, and Welfare (HEW) Secretary Anthony Celebrezze that proposed amendments to the FDCA that would have given the FDA jurisdiction over `smoking product[s]' `might well completely outlaw at least cigarettes').
"....
"The [FDA] conceded that `tobacco products are unsafe, as that term is conventionally understood.' 61 Fed.Reg. 44412 (1996)."
FDA v. Brown & Williamson Tobacco Corp.,
"Courts may take judicial notice of matters of common knowledge without suggestion of counsel ... and without proof thereof." Cullman Broadcasting Co. v. Bosley,
The United States Department of Health and Human Services, Reducing Tobacco Use: A Report of the Surgeon General, Atlanta: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2000, p. 182, states, in pertinent part:
"The six major cigarette manufacturers reported a pooled list of 599 ingredients that were added to the tobacco of manufactured cigarettes as of 1994. ... The American Health Foundation (1990) has pointed out the toxic potential of numerous *132 cigarette tobacco additives under expected conditions of use. Heating and burning may lead to the formation of carcinogens from some of the additives used. For instance, amino acids used as additives are known to form compounds of various elements, including genotoxic agents (known to damage DNA) and experimental carcinogens, during heating. Licorice root extract contains glycyrrhizin, and both are used as additives in cigarettes; glycyrrhizin produces carcinogenic by-products when burned. The leukemic-producing agent benezene is a component of cigarette smoke that may be formed from the combustion of many cigarette additives. ... Among representative brands manufactured in the United States but sold in France (e.g., Camel, Kent, Marlboro, and Winston), the cigarette labels indicate that between 6.2 and 10.0 percent of each cigarette is composed of additives."
42 U.S.C. § 290aa-2(b)(2) requires the Secretary of Health and Human Services to submit a report on "the addictive property of tobacco" every three years to Congress.
The additives in cigarettes vary from brand to brand.[6] The identities, combinations, and dangers of the specific additives in the cigarettes smoked by Carolyn are not developed in the record before us.
The dangerousness vel non of tobacco containing additives is a question of fact that depends upon the nature and combination of the additives and upon the process of adding the additives. Therefore, we cannot say as a matter of law that the cigarettes smoked by Carolyn were not unreasonably dangerous under the AEMLD. Witherspoon, supra; Burton, supra; Hill, supra; Thomas, supra; Guilbeault, supra; Allen, supra; Naegele, supra; Souders, supra; Rogers, supra. We cannot hold that "it is clear the plaintiff can prove no set of facts in support of the [AEMLD] claim[ ] in the complaint." Canadyne-Georgia Corp.,
I address next whether, "[s]ince the appearance of federally mandated warning labels on cigarette packages, ... cigarettes [have] been `unreasonably dangerous under the AEMLD[.]"
"Under Alabama law, if a manufacturer or seller places goods on the market which are imminently dangerous when put to their intended purpose and the defendant knows or should know that the goods are dangerous when used in their customary manner, the defendant must exercise reasonable diligence to make such dangers known to the public likely to be injured by the product."
Cazalas v. Johns-Manville Sales Corp.,
"`The affirmative defense of assumption of the risk requires that the defendant prove (1) that the plaintiff had knowledge of, and an appreciation of, the danger the plaintiff faced; and (2) that the plaintiff voluntarily consented to bear the risk posed by that danger. Gulf Shores Marine Indus., Inc. v. Eastburn,719 So.2d 238 , 240 (Ala.Civ.App.1998). Assumption of the risk is described as "a form of contributory negligence applicable to factual situations in which it is alleged that the plaintiff failed to exercise due care by placing himself or herself into a dangerous position with appreciation of a known risk." Cooper v. Bishop Freeman Co.,495 So.2d 559 , 563 (Ala. 1986), overruled on other grounds, Burlington Northern R.R. v. Whitt,575 So.2d 1011 (Ala.1990). This Court has held that "[a]ssumption of the risk proceeds from the injured person's actual awareness of the risk." McIsaac v. Monte Carlo Club, Inc.,587 So.2d 320 , 324 (Ala.1991) (emphasis added).'
"Ex parte Potmesil,785 So.2d 340 , 343 (Ala.2000).
"With regard to assumption of the risk, `the plaintiff's state of mind is determined by [a] subjective standard.' McIsaac v. Monte Carlo Club, Inc.,587 So.2d 320 , 324 (Ala.1991)."
H.R.H. Metals, Inc. v. Miller,
The affirmative defense of contributory negligence is both similar and dissimilar to the affirmative defense of assumption of the risk.
"A plaintiff misuses a product when he or she uses it in a manner not intended or foreseen by the manufacturer. Kelly v. M. Trigg Enterprises, Inc.,605 So.2d 1185 (Ala.1992). A plaintiff is contributorily negligent in handling a defective product when he or she fails to use reasonable care with regard to that product. Williams v. Delta International Machinery Corp., [619 So.2d 1330 (Ala.1993) ]; Harley-Davidson, Inc. v. Toomey,521 So.2d 971 (Ala.1988)."
General Motors Corp. v. Saint,
"To establish contributory negligence as a matter of law, a defendant ... must show that the plaintiff put himself in danger's way and that the plaintiff had a conscious appreciation of the danger at the moment the incident occurred. See H.R.H. Metals, Inc. v. Miller,833 So.2d 18 , 26 (Ala.2002). The proof required for establishing contributory negligence as a matter of law should be distinguished from an instruction given to a jury when determining whether a plaintiff has been guilty of contributory negligence. A jury determining whether a plaintiff has been guilty of contributory negligence must decide only whether the plaintiff failed *134 to exercise reasonable care. We protect against the inappropriate use of a summary judgment to establish contributory negligence as a matter of law by requiring the defendant on such a motion to establish by undisputed evidence a plaintiff's conscious appreciation of danger. H.R.H. Metals, supra."
Hannah v. Gregg, Bland & Berry, Inc.,
The general warnings on cigarette packages do not warn of the idosyncratic dangers of additives. See 15 U.S.C. § 1333(a)(1). The adequacy of a warning on a product as part of an assumption-of-the-risk defense is a fact issue dependent on whether the warning accurately describes the dangers posed by the particular cigarettes as contaminated or adulterated by additives. Kelly,
I accept the invitation of the Eleventh Circuit to address whether it incorrectly concluded that negligence and wantonness claims merge into an AEMLD claim. Negligence, wantonness, and AEMLD are analytically distinct causes of action. Each of these theories of relief consists of its own essential elements in a combination that is separate and distinct from the combination of essential elements of each of the other theories. "`The elements for recovery under a negligence theory are: (1) duty, (2) breach of duty, (3) proximate cause, and (4) injury.'" Yamaha Motor Co.,
"`"Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability. Implicit in wanton willful, or reckless misconduct is an acting, with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury ...."'"
Yamaha Motor Co.,
Next I address the conclusion by the Eleventh Circuit that "the sale of cigarettes does not violate the implied warranty of merchantability under" § 7-2-314, Ala.Code 1975. Section 7-2-314 provides:
"Unless excluded or modified (Section 7-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind."
An "implied warranty of merchantability claim requires that the plaintiff[] show that the goods were unmerchantable or unfit for the ordinary purposes for which they are used. Ala.Code 1975, § 7-2-314." Allen,
My analysis of this theory is like my analysis of the AEMLD theory. See Allen, supra. Thus, the sale of cigarettes made with uncontaminated or unadulterated tobacco does not violate the implied warranty of merchantability; but the sale of cigarettes made with tobacco contaminated or adulterated with additives does violate the implied warranty of merchantability if those additives cause the cigarettes to be "unfit for the ordinary purposes for which they are used," or to be contrary to the reasonable expectations of the consumer. Allen,
I address next the conclusion by the Eleventh Circuit that "the fraudulent suppression claim, which is a basis for Spain's conspiracy claim, is not viable under Alabama law." The opinion by the Eleventh Circuit in this case, already quoted at length in this opinion, correctly recites the essential elements of a claim for fraudulent suppression.
On the one hand, Alabama law imposes a duty to warn on a manufacturer who "places goods on the market which are imminently dangerous." King,
15 U.S.C. § 1334 of the Federal Cigarette Labeling and Advertising Act of 1965, as amended by the Public Health Cigarette Smoking Act of 1969, 15 U.S.C. § 1331 et seq., provides:
"(a) Additional Statements. No statement relating to smoking and health, other than the statement required by section 4 of this Act [15 U.S.C. § 1333], shall be required on any cigarette package.
"(b) State regulations. No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act." (Emphasis added.)
In Cipollone, the United States Supreme Court held that 15 U.S.C. § 1334 preempted not only statutory warning requirements but also state common-law requirements:
"Thus, on their face, these [1965 Act] provisions ... prohibit[] state and federal rulemaking bodies from mandating particular cautionary statements on cigarette labels (§ 5(a)) or in cigarette advertisements (§ 5(b)).
"....
"[W]e conclude that § 5 of the 1965 Act only pre-empted state and federal rulemaking bodies from mandating particular cautionary statements and did not pre-empt state-law damages actions.
"Compared to its predecessor in the 1965 Act, the plain language of the pre-emption provision in the 1969 Act is much broader. First, the later Act bars not simply `statement[s]' but rather, `requirement[s] or prohibitions[ ] ... imposed under State law.' Second, the later Act reaches beyond statements `in the advertising' to obligations `with respect to the advertising or promotion' of cigarettes.
"The 1969 Act worked substantial changes in the law: rewriting the label warning, banning broadcast advertising, and allowing the FTC to regulate print advertising. ...
*137 "The phrase `[n]o requirement or prohibition' sweeps broadly and suggest no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common-law rules. As we noted in another context, `[state] regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.' San Diego Building Trades Council v. Garmon,359 U.S. 236 , 247 (1959)."
Therefore, no Alabama state law duty to disclose, by labeling, advertising, or promoting, the dangers of cigarettes contaminated or adulterated with additives existed after the effective date of the 1969 federal act to supply the element of duty essential to a fraudulent suppression claim. If a breach of such a duty occurred before that date and all of the other essential elements of a fraudulent deceit action, including the element of first consequent injury, materialized more than 20 years before Spain filed suit, then the rule of repose bars any fraudulent suppression claim and any conspiracy claim dependent on the fraudulent suppression claim, even if Carolyn did not discover or constructively discover her claim until less than two years before she died. Moore, supra; Ex parte Liberty Nat'l, supra; Ballenger, supra; Merrill, supra. Only if a breach of such a duty occurred before the effective date of the 1969 federal act, and the first consequential injury did not develop until less than 20 years before suit was filed, and discovery or constructive discovery did not occur until less than two years before Carolyn died, could a fraudulent suppression claim and a dependent conspiracy claim be viable. Id.; § 6-2-3; Hall v. Chi, supra; King, supra; Caudle, supra; Hawkins, supra; Gurley, supra; Cazalas, supra; Ex parte Household Retail Servs., Inc.,
Last, I address the conclusion of the Eleventh Circuit that "if cigarettes are not unreasonably dangerous as a matter of Alabama law, the fraudulent misrepresentation claim, which is a basis for the conspiracy claim, is not viable under Alabama law." As I have already explained, I cannot agree with the categorical premise that "cigarettes are not unreasonably dangerous as a matter of law." While cigarettes made with uncontaminated, unadulterated tobacco are, as a matter of law, not unreasonably dangerous, whether cigarettes made with additives are unreasonably dangerous is a question of fact dependent on the dangerousness of the additives or combinations of additives. The record is not developed in a way that would foreclose proof that additives rendered some or all of the cigarettes smoked by Carolyn unreasonably dangerous. Because I cannot agree with the premise for the conclusion by the Eleventh Circuit, I cannot agree with the conclusion itself that "the fraudulent misrepresentation claim, which is a basis for the conspiracy claim, is not viable under Alabama law."
HARWOOD, Justice (concurring in Parts I.A., I.B., II.B., and III and dissenting from Part II.A.).
I concur in all aspects of the main opinion except that part of the opinion designated as Part "II. The Statute of *138 LimitationsA. Tort Claims." As to that aspect of the opinion, I dissent, joining in that part of the special writing of Justice Johnstone dissenting as to that aspect.
WOODALL, Justice (concurring in Part I.A. and Part III, concurring specially in Part I.B., concurring in the result in Part II.B., and dissenting from Part II.A.).
I concur fully in that part of the main opinion that holds that "Spain's negligence and wantonness claims are, at this stage of the proceedings, viable alternatives to his AEMLD claim."
I concur specially in that part of the main opinion that holds that "a claim alleging breach of an implied warranty of merchantability is separate and distinct from an AEMLD claim and is viable to redress an injury caused by an unreasonably dangerous product."
I dissent from that part of the main opinion that concludes with the answer "that the statutory limitations period begins to run [as to the tort claims] at the moment a smoker recognizes that he or she has become addicted."
Finally, with regard to that part of the opinion, which holds that "any injury occurring from the breach of an implied warranty within the four-year period before Carolyn's death on August 5, 1999, would be actionable,"
STUART, Justice (concurring in part in Part II.A. and expressing no opinion as to Parts I.A., I.B., II.B., and III).
I concur only in that portion of the opinion that states that under the factual allegations presented the statutory limitations period began to run at the time the plaintiff became addicted to cigarettes.
NOTES
Notes
[1] Effective January 15, 2003, the corporate name of Philip Morris, Inc., was changed to Philip Morris USA Inc.
[2] We also have before us a certified question from the United States Court of Appeals for the Eleventh Circuit in Tillman v. R.J. Reynolds Tobacco,
[3] See Walker v. Henderson,
[4] See note 2.
[*] Retired Justice Hugh Maddox was sitting as a Justice of this Court in this case pursuant to § 12-18-10(e), Ala.Code 1975. Although he did not attend oral argument, he has reviewed the videotapes of that oral argument.
[5] The case of McArthur v. Carrie's Admr.,
[6] On the date of this opinion, Internet Web sites operated by defendants Brown and Williamson Tobacco Corporation and Philip Morris, Inc., identified the ingredients in cigarettes manufactured by them and specifically identified the ingredients in each brand of cigarettes manufactured by them. See www.brownandwilliamson.com/SHC/ingredients and www.philipmorrisusa.com/our__products/ingredients.