Cipollone v. Liggett Group, Inc.

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), was a United States Supreme Court case. In a split opinion, the Court held that the Surgeon General's warning did not preclude suit by smokers against tobacco companies on several claims. The warning at issue said:

WARNING: THE SURGEON GENERAL HAS DETERMINED THAT CIGARETTE SMOKING IS DANGEROUS TO YOUR HEALTH.

The court's holding and some of Justice Stevens's reasoning enjoyed majority support, but the opinion eventually gained full majority support 16 years later in Altria Group v. Good.

Background

Rose Cipollone began smoking at the age of sixteen. She continually smoked a pack and a half a day of Chesterfield cigarettes until she first attempted to quit when she became pregnant, as requested by her husband Tyrone Cipollone. Though she cut down on her regular smoking, she still secretly smoked during her pregnancy. In 1955, Mrs. Cipollone switched to Liggett and Myer brand of cigarettes on the basis that their “pure white Miracle Tip” filter appeared to be a healthier alternative to her habit.^[1][2] In 1968, she switched, this time to Philip Morris’ Virginia Slims brand because the women advertised smoking seemed “cool, glamorous, and grown-up”.^[1][2] A few years later, in 1972, Ms. Cipollone switched to smoking Parliament brand cigarettes for reasons she attributed to health; Parliaments were advertised to have a recessed filter and lower tar content. Finally, Cipollone switched to Lorillard’s True cigarettes under the recommendation of her physician to either quit smoking or switch to this brand of cigarette with its advertised plastic filter inserts. Rose Cipollone was under the misguided impression that “tobacco companies wouldn’t do anything to kill you,” and therefore, continued to smoke cigarettes.^[1]

In the mid-1960s, Rose Cipollone began to develop a smokers’ cough, as well as problems such as chest pain and hypertension. In 1981, doctors found a carcinogenic spot on her right lung and performed a partial lung resection. Mrs. Cipollone still continued to smoke, “though often now in secret".^[1] In 1982, the cancer had spread to her lower and middle right lung, and Cipollone had surgery to remove the entire lung as well as a large adrenal mass in 1983. Rose Cipollone died on October 24, 1984, after her lung cancer had spread and become inoperable.

Rose Cipollone became the litigant in the case after she was recommended by her chest surgeon to attorney Marc Edell. Edell had previously represented the asbestos companies in their defense in regard to the health-related claims brought against them. Due to his involvement in asbestos litigation, Edell became familiar with “pulmonary pathology and risks of smoking” and became interested in litigation against the tobacco industry.^[1] In need of a client, Edell took on Cipollone’s case and filed suit in U.S. District Court for the District of New Jersey against Liggett and Myers, Philip Morris, and Lorillard in five separate tort cases on August 1, 1983.

Trial

First case

Edell’s initial case focused on the factor of the cause of Cipollone’s addiction: the nicotine found in her cigarettes. In the initial presentation of the facts, Edell brought forth a series of claims. He planned to prove that:

• Tobacco companies had failed to put the safer designs on the market, even though they had the resources to research and design them
• They had committed fraud by failing to act on their knowledge of the harms of smoking
• Though the industry had knowledge of the dangers of smoking, they had failed to fully inform the public of the true risks of smoking
• The cigarette makers had breached express warranty by making health claims in their advertising and promotions, which fraudulently overshadowed the mandated health warnings

The tobacco companies motioned to dismiss the case, citing the 1966 Federal Cigarette Labeling and Advertisement Act, which the companies argued preempted independent state regulation of tobacco and therefore prevented state litigation, making the tobacco industry immune to suits. Though the trial judge, H. Lee Sarokin, ruled in favor of Cipollone, the ruling was overturned on interlocutory appeal by the U.S. Court of Appeals for the Third Circuit. The appellate court allowed the case to be retried in district court on the condition that no claims regarding advertisement and promotion could be made.

Second Case

In the retrial of the first case under the new conditions, Edell was not allowed to enter evidence claiming that Liggett & Myers had worked on the creation of a safer cigarette, as well as evidence regarding the tobacco industry’s “duty to warn” of the dangers of cigarette smoking, as the point became moot by the appellate court. Regardless of these setbacks, Edell strengthened his case with his access to 300,000 pages of internal documents of the tobacco companies. These documents included compelling and damaging evidence that the tobacco companies had proof, backed by research dating back to the 1940s, that nicotine was addictive and potentially carcinogenic. The tobacco industry unsuccessfully struggled to suppress the evidence on the grounds that it would divulge trade secrets; the trial court judge, Sarokin, ruled that the people and the court had the Constitutional right to know what the companies know. Though the tobacco industry appealed this ruling to the Third Circuit Court of Appeals, which upheld the ruling, as well as the Supreme Court, which refused to hear the case, it was established that the evidence would be used in trial. Alongside the confidential tobacco industry documents, Edell argued that the powerful advertising for the brands Cipollone smoked was an unscrupulous strategy utilized by the tobacco industry to not only overshadow the warning labels mandated by the federal government, but also to promote cigarette use and nicotine addiction as a marketing strategy for company profit. Edell claimed that Cipollone’s tobacco use stemmed from her nicotine addiction, which was encouraged by the advertising of Liggett and Myers, Philip Morris, and Lorillard by the use of both health claims and deviously appealing advertising. Cipollone was portrayed as a woman who was disparaged by her powerful addiction to the tobacco industry’s product; expert testimony showed that she even displayed withdrawal symptoms, sometimes digging through “the trash for butts when she ran out of cigarettes”.^[1] After presenting his case that the tobacco industry’s advertising of cigarettes and knowledge of risk related to Cipollone’s claims, the defense moved for dismissal. The motion was denied.

The tobacco industry argued that Rose Cipollone was fully aware of the risks of smoking both before and during her cigarette use. She was an independent woman, making an independent decision to continue smoking, and she was in control, not the nicotine. Furthermore, even if the cigarettes had caused her death, it was in no way the responsibility of the industry, as research, as well as the confidential documents entered into evidence, did not show any explicit proof that lung cancer is linked directly to smoking. Furthermore, expert testimony revealed that the type of lung cancer affecting Mrs. Cipollone was not associated with smoking, and that Cipollone’s constant switching between “healthier” brands showed her acknowledgment of the dangers of smoking.

Ruling

District Court

The jury deliberated for 6 days, and reached the verdict that:

• Cipollone was 80% at fault, based on their assessment of personal choice, since it was her personal decision to smoke.^[1]
• All charges for failure to warn were dropped against Philip Morris and Lorillard, since Cipollone began smoking their cigarettes after the 1966 federally mandated warning labels appeared on the packages
• Only Liggett & Myers could be held liable, as Mrs. Cipollone smoked their cigarettes before the 1966 warning labels, and the court ruled that the company did in fact contribute to her death.
• The jury awarded $400,000 in damages to Mr. Antonio Cipollone, who had continued to fight the case after his wife’s death.
• The claim regarding the tobacco industry’s withholding of a production of a safer cigarette was dismissed on the grounds that it involved speculating whether Cipollone would have in fact smoked it had she been alive and given the opportunity.

It was considered a victory for both sides; while Cipollone was awarded damages, signifying the first time a tobacco company had paid damages in a liability case, the tobacco industry was justified in their claim regarding free choice in the decision to smoke cigarettes.

Court of Appeals

In 1990, the Third Circuit appellate court threw out the verdict and:

• Set aside the $400,000 in damages on the grounds that there was no proof that Mrs. Cipollone relied on the Liggett & Myers advertisements in question
• Allowed Edell to file suit on the basis of design and advertising, claiming that prior to 1966, in reference to 1966 Federal Cigarette Labeling and Advertisement Act, a smoker would be unaware of the harms of smoking, even though the knowledge existed within the tobacco industry
• Edell could argue the case that the tobacco industry could be held liable on a live claim that the company made Cipollone unaware of the product’s dangers outweighing the benefits.

Five days after the appellate ruling, Antonio Cipollone died, and the case continued on with his son. Both the plaintiff and the defense in this case were looking for a concrete doctrine regarding the ability to litigate regarding preemption, state regulation of tobacco, and the Act cited in the first trial of the case.

Supreme Court

The Supreme Court addressed the issue of preemption of federal law in regard to state law regulating the tobacco industry and whether common law damages constitute a requirement based on smoking and health based on state law in regard to advertisements and promotion.^[3] The Cigarette Labeling and Advertising Act of 1969, which excludes all manufacturers who label their packages with proper warnings from requirement or prohibition led the majority of the court to the opinion that:

• Prohibited the filing of a “failure-to-warn” claim against the tobacco industry
• Prohibited cases involving the neutralization of federal warnings in advertisements on the grounds that the Act preempted, or overrode, state laws
• Limited common law claims preempted by statute

The majority ruling also limited the potential litigants to smokers who developed disease prior to 1969. The opinion did not exclude fraud and conspiracy or express warranty, as section 5b of the 1969 Act does not explicitly define this; if the plaintiff could prove that the industry conspired to hide evidence concerning the harms of smoking or lied to the public about them, or if express warranties were breached, then a new case can be filed, as there is no discussion of tort litigation or damage claims in the Act. While the concurring opinion found that no damage claims were preempted rather than not discussed, the dissenting justices found that all state laws were preempted by the act.

Aftermath

The U.S. Supreme Court remanded Cipollone v. Liggett Group, Inc. for a new trial. The retrial never occurred; the $400,000 verdict for Cipollone from the original trial was far eclipsed by the exorbitant costs and length of the lawsuit. Since the case was filed, almost half the ten years was spent on post-trial matters.^[4] In 1988, Phillip Morris was quoted as saying: "Almost 200 lawsuits have been brought in the last five and a half years and the cigarette manufacturers have not ... paid a penny to settle one."^[4] As of 1992, the law firms handling Cipollone and seven other tobacco litigation cases had "incurred approximately $1.2 million in out-of-pocket expenses ... The firms have also spent well over $5 million in lawyer and paralegal time".^[4]

Rose Cipollone's son filed for a voluntary withdrawal of the lawsuit on November 4, 1992. Six other tobacco liability cases were withdrawn the same month as well.^[4] The firm handling Cipollone was denied withdrawal in the last remaining case, Haines v. Liggett Group, Inc. Haines dragged on for another decade and then some, until a settlement order was approved on April 13, 2004.^[5]

References

External links

• Text of Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) is available from:  Findlaw  Justia 
• Full Text of Volume 505 of the United States Reports at www.supremecourt.gov