Cipollone

Antonio for Rose D. Cipollone
v Liggett & Myers, Philip Morris, Lorillard et al

United States District Court, Newark, New Jersey

Filed 1983

The Cipollone Complaint sought compensatory damages in excess of $10,000 and punitive damages of an unspecified amount. The injury alleged was bronchogenic carcinoma.

Plaintiff attorneys: Budd, Larner, Gross, Picillo, Rosenbaum, Greenberg & Sade by Marc Z. Edell and Cynthia Walters
Defendant attorneys: Arnold & Porter by Peter K. Bleakley and Thomas E. Silfen (PM); Webster & Sheffield by Donald J. Cohn, Francis Decker and James Kearney (LM). Shook, Hard & Bacon by Robert E. Northrip and Steven Parrish (PM Lor)

Timeline

  • 1983 – August 1: Original Complaint filed.
  • 1983 – August 5: Amended Complaint filed.
  • 1983 – October 4: Second Amended Complaint (original filing date) pursuant to court’s order of November 3, 1983, adding Loew’s as a defendant.
  • 1984 – September 20: District Judge denies motions.

“District Judge denied Loew’s Motion for Judgment on the Pleadings with respect to preemption issue, in which all defendants joined, and granted plaintiffs’ Motion to Strike Preemption Defenses of all defendants. The Third Circuit granted Loew’s and Liggett permission to appeal.”

“The judge denied the defendants’ motion for summary judgment. He found that the Federal Cigarette Labeling and Advertising Act did not expressly or impliedly preempt the claims. By establishing a uniform warning, Congress did not prevent an individual from taking on the difficult task of proving that warning inadequate under state common law claims.”

“The Act did preempt the regulation of labeling and advertising, but did not bar litigation on the issue even if it may motivate the defendant to additional warnings. The judge held that Congress did not intend to occupy the field of common law products liability. Also, even if the defendants chose to put additional warnings on their package, that choice would not be in conflict with the Act.”

  • 1985 – May 30: Third Amended Complaint filed

“[S]ubstituted Antonio Cipollone as executor of Rose Cipollone’s estate, adding a claim for wrongful death and deleting Loew’s Corp. as a defendant.”

  • 1985 – July 17: District Judge rules again

“District Judge affirmed in part and reversed in part protective order entered by Magistrate regarding disclosure of information obtained from discovery.”

  • 1985 – July 24: Order stayed
  • 1985 – August 6: Appeal of July 17, 1985 order and motion for mandamus to District Judge filed with Third Circuit.
  • 1987 – October 27: Judge Sarokin rules.

“Judge Sarokin granted the defendants’ motion for partial summary judgment on the “risk/utility” theory of strict liability following the passage of a state law concerning product liability. The judge indicated that under the new law, cigarettes could not be defective because their risks were already known to the general public. The law did not create a new rule and was intended to apply immediately to pending cases.”

  • 1987 – December 28: Judge rehears arguments.

“Judge reheard the arguments but held with its former decision. The law did not delegate the decision of whether a provision is a “new law” to the courts, so the judge had to look to legislative intent to decide the issue. The judge permitted limited discovery to determine the degree of the defendants’ attorney’s involvement in the state’s committee statement. If too involved, the law might not have been applicable in this case. Cigarettes could not have been considered unreasonably dangerous simply because smoking was harmful. However, the plaintiff could make arguments as to adulterated cigarettes.”

  • 1988 – February 1: Opening statements
  • 1988 – April 21: Judge rules on directed verdict,

“The judge granted in part and denied in part the defendants’ motion for directed verdict. The judge ruled that the evidence of the safer palladium cigarette did not satisfy proximate cause for the design defect claim because there was insufficient evidence that Mrs. Cipollone would have tried the product if available. The judge granted summary judgment for this claim. The judge granted Philip Morris and Lorillard’s directed verdict motion on failure to warn and express warranty claims because the plaintiff did not smoke these brands until after 1966.”

“Liggett’s duty to warn of health risks, and whether Liggett made express warranties prior to 1966 were jury questions precluding a directed verdict. Any claim of negligent testing fell within the failure to warn or alternative design claims, so the judge granted the directed verdict on that claim.”

“Also questions for the jury were whether the defendants intentionally concealed the consequences of smoking and whether the plaintiff justifiably relied on those representations. The judge also denied a directed verdict with regard to punitive damages.”

  • 1988 – June 6: Closing arguments
  • 1988 – June 13: First Plaintiff verdict – $400,000 against Liggett & Myers

“Plaintiff verdict against Liggett & Myers, $400,000. Lorillard and Philip Morris off the hook. The jury found for the defendants on the claims of fraud and conspiracy. It found that prior to 1966, Liggett had failed to warn of smoking risks and proximately caused Mrs. Cipollone’s death (20% liability). It also found that Mrs. Cipollone had unreasonably encountered a known danger by continuing to smoke, proximately causing her own death (80% liability). This barred recovery on the failure to warn claim. It also found that Liggett breached an express warranty, awarding $400,000 to Mr. Cipollone.” (Link to Peter Bleakley memo)

  • 1988 – August 24: Judge Sarokin
  • 1988 – November 15: Cost emerges as a factor

“Girton v. American Tobacco was tried in eight days this summer [1988] and the case cost a total of $30,000 in out-of-pocket expenses for the plaintiff’s attorneys, versus $500,000 for Cipollone, $260,000 for Horton and well into the six figures for Marsee. The day when a plaintiff’s attorney will have to spend as little as $10,000 in out-of-pocket expenses is probably not far off.”

Tobacco on Trial newsletter. PM Bates 2025880494-2025880499

  • 1990 – January 5: The United States Court of Appeals, Third Circuit affirmed in part, reversed in part, and remanded the case. The court found that the jury should not have been allowed to consider post-1965 behavior for comparative fault. Instead it should have considered it as “avoidable consequence” mitigating damages. This entitled the plaintiff to a new trial on the failure to warn claim.

“The court found it was sufficient for the jury to find that cigarettes were a substantial factor in the plaintiff’s injury. Express warranty claims allowed the defendant to prove the plaintiff did not believe the advertisements to refute the “basis of the bargain” claim. Because the lower court’s instructions did not include this or require the plaintiff to show Mrs. Cipollone had actually seen the advertisements, the verdict was flawed and had to be set aside.”

“The court found that comparative fault was not appropriate here since any cigarettes purchased after she knew the risks of smoking would not breech any express warranty. Evidence of broad assertions that the cigarettes were harmless was sufficient to show express warranty. The defendants’ directed verdict on risk/utility claims against all three defendants because there was not sufficient evidence of common knowledge prior to 1966. Prejudgment interest was permissible on express warranty claims. The statute of limitations defense raised questions of material fact as to when Mrs. Cipollone first knew she had cancer, precluding summary judgment. The intentional tort claim was preempted by the Act because it was based on the propriety of the defendants’ advertising.”

  • 1992 – June 24: Verdict reversed

“The Supreme Court of the United States reversed in part, affirmed in part, and remanded the case. The Court dealt with the 1965 and 1969 versions of the law separately. The express preemption clauses in each implied that other matters were not preempted. The 1965 Act limited preemption to state regulations of warnings and advertisements. The 1969 Act amended the preemption to include any ‘requirement or prohibition,’ including common law damage claims.”

“The Court held that the Acts did not preempt state law damage claims. The 1969 Acts did preempt failure to warn claims based on failure to warn based on advertising or promotion, but not those based on testing, research, or other actions. The amended Act did not preempt express warranty, because the requirements were dictated by the defendant in its statements; intentional fraud and misrepresentation, since they are based on a general duty not to deceive and many are based on material facts outside of advertising or promotion; or conspiracy, because it is not a prohibition based on smoking and health.”

  • 1992 – Suit abandoned by plaintiffs over expenses.

Despite the order for a new trial, the Budd, Larner law firm withdrew the Cipollone suit due to excessive costs. (Link to General Patton memo)

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