Suit Linking Cancer Death to Smoking Revived by Ninth Circuit

Monday, January 31, 2005

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Suit Linking Cancer Death to Smoking Revived by Ninth Circuit

By KENNETH OFGANG, Staff Writer/Appellate Courts

A suit by a Nevada man who claims his wife’s 1999 death from lung cancer was the result of smoking Philip Morris cigarettes for 30 years was partially reinstated Friday by the Ninth U.S. Circuit Court of Appeals.

The panel concluded that the plaintiff, Joe Rivera, presented enough evidence to show triable issues on theories of strict liability and failure to warn under Nevada law.

The judges did, however, agree with District Judge James C. Mahan that Rivera lacked a viable claim of fraudulent concealment, since there was no evidence that she would have stopped smoking if she had known the facts the company allegedly concealed.

The appellate panel also upheld the rejection of a claim of affirmative misrepresentation, saying there was no evidence Pamela Rivera ever saw or heard any of the company’s alleged false statements regarding the relationship between smoking and cancer.

Senior Judge Jerome Farris wrote the opinion, which was joined by Senior Judge Dorothy W. Nelson and Judge Ronald M. Gould.

Rivera originally brought his action in state court, but Philip Morris, a Virginia corporation, removed it to the district court.

In granting summary judgment on the strict liability and fraudulent concealment claims, Mahan ruled they were preempted by the 1965 and 1969 laws governing cigarette package labeling.

Farris disagreed, noting that the statutes limit preemption to claims “with respect to the advertising or promotion of any cigarettes the package of which are labeled in conformity” with federal law.

Citing Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, in which a plurality of the court held that certain types of state-law claims, such as those alleging fraud in advertising, are not covered by the preemption, Farris said there was at least a possibility that Rivera could prove the elements of strict liability and failure to warn under Nevada law.

Farris rejected the company’s argument, raised successfully in several post-Cipollone district court cases, that any claim requiring public release or disclosure of information is necessarily related to advertising and promotion.

“This broad interpretation of the phrase ‘advertising or promotion’ does not comport with the language of Cipollone, nor does it square with the language and legislative history of the Labeling Act,” Farris wrote. “By preserving some claims in Cipollone that were based, in part, on the duty to communicate smoking and health information to the public (e.g., the communicative duties arising from voluntary activities and research activities), the plurality envisioned continued avenues for cigarette manufacturers to perform those duties through means other than the rigorously controlled avenues of advertising, promotion, and packaging.”

The case is Rivera v. Philip Morris, Inc., 03-16100.