                                                                               [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT                  U.S. COURT OF APPEALS
                            ____________________________                ELEVENTH CIRCUIT
                                                                          OCTOBER 18, 2000
                                                                         THOMAS K. KAHN
                                    No. 99-15021                              CLERK
                            ____________________________

                          D.C. Docket No. 99-02424-CV-AR-S

PAUL L. SPAIN as Administrator
for the Estate of Carolyn Watts Spain,
Deceased,

                                                                   Plaintiff-Appellant,

                                             versus

BROWN & WILLIAMSON
TOBACCO CORPORATION,
PHILIP MORRIS, INC., et al.,

                                                      Defendants-Appellees.
                           _____________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                         _____________________________
                                  (October 18, 2000)

Before CARNES, MARCUS and FARRIS*, Circuit Judges.

CARNES, Circuit Judge:

       *
         Honorable Jerome Farris, U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
      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


                                          2
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.2

                             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.3

       The defendants removed the case to federal court,4 and after removal filed a

motion to dismiss all of Spain’s claims under Federal Rule of Civil Procedure


       2
         The 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.
       3
         Spain’s AEMLD claim appears to encompass two separate claims – a claim for design
defect and a claim for failure to warn.
       4
        Spain had also sued a number of non-diverse defendants, but he moved to dismiss all of
them and that motion was granted.

                                               3
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.5

                                     II. DISCUSSION

       Although federal court jurisdiction is premised on diversity of citizenship,

important federal law preemption issues will be presented for us to decide if, and

only if, Spain’s claims survive the multitude of state law arguments and defenses

the defendants have raised. We will begin our discussion by describing the federal

law preemption issue in this case, and then the state law issues, the resolution of

which will define and may render academic that federal issue.

                            A. THE FEDERAL LAW ISSUE

       Section 5(b) of the Federal Cigarette Labeling and Advertising Act of 1965

(“1965 Act”), as amended by the Public Health Cigarette Smoking Act of 1969

       5
          Spain’s case is not controlled by this Court’s recent decision in United Food &
Commercial Workers Unions, Employers Health & Welfare Fund v. Philip Morris, Inc., 223
F.3d 1271 (11th Cir. 2000). We held there that a complaint filed by an employee health and
welfare benefit plan failed to state a claim, because there was no proximate cause between the
defendant cigarette companies’ actions which allegedly injured participants in the plan and any
loss suffered by the plan. See id. at 1273.

                                               4
(“Labeling Act” or “1969 Act”), states: “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 [lawfully]

labeled.” 15 U.S.C. § 1334(b). The lawfully required label is the familiar

“WARNING: THE SURGEON GENERAL HAS DETERMINED THAT

CIGARETTE SMOKING IS DANGEROUS TO YOUR HEALTH.” See

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 508, 112 S. Ct. 2608, 2613 (1992)

(plurality opinion).

      In Cipollone, the Supreme Court set forth a test to determine which state law

claims are preempted by the Labeling Act. See id. at 524, 112 S. Ct. at 2621. A

common law or other state law claim is preempted if “the legal duty that is the

predicate of the ... action constitutes a ‘requirement or prohibition based on

smoking and health ... imposed under State law with respect to ... advertising or

promotion,’ giving that clause a fair but narrow reading.” Id.

      The defendants contend that the post-1969 portion of the claims Spain

asserts are precisely the type of claims Cipollone held to be preempted, because

those claims seek to impose a duty to provide warnings over and beyond those




                                          5
required by the Labeling Act.6 Citing the Alabama Supreme Court’s decision in

Cantley v. Lorillard Tobacco Co., 681 So.2d 1057, 1061-62 (Ala. 1996), the

defendants argue that under Alabama law they had no duty to provide additional

warnings beyond those required by federal law and no duty to communicate even

those warnings by means other than advertising or promotion.

       Spain, on the other hand, contends that the Labeling Act had limited

preemptive effect. He maintains that under Cipollone and Cantley, many of his

claims (including his pre-1970 claims in their entirety, his post-1969 claims for

defect in product, misrepresentation and conspiracy, his post-1969 claims for

negligence based on testing or research practices, and his post-1969 claims for

negligence based on failure to disclose facts through channels of communication

other than advertising or promotion) survive federal preemption.7 Finally, Spain

argues that there is a genuine issue of material fact as to whether the defendants

       6
           The 1965 Act prohibited States from requiring any “statement relating to smoking and
health ... in the advertising of [properly labeled] cigarettes.” Cipollone, 505 U.S. at 518, 112 S.
Ct. at 2618. The Supreme Court held in Cipollone that 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.” Id. at 519-20, 112 S. Ct. at 2619.

       However, because the 1969 Act changed the language of the preemption provision to
prohibit any “requirement or prohibition,” the Court found that the preemption provision of the
1969 Act was much broader than that of the 1965 Act. The defendants do not assert that Spain’s
claims are preempted by the 1965 Act and rely solely on the 1969 Act for their preemption
argument.
       7
         Spain does not explain his varying use of the 1970 and 1969 dates to describe the
claims that he argues are not preempted.

                                                 6
violated the Labeling Act, although he does not specify what consequences he

thinks follow from such a failure.

      At the outset, we recognize that Spain’s state law claims, insofar as they

relate to the time period before the effective date of the 1969 Labeling Act, are not

preempted by that federal legislation. Those claims’ viability or lack of it will

depend entirely upon disputed issues of state law. So, “[t]here is no way for us to

avoid [those] state law issues in this case,” Blue Cross & Blue Shield of Alabama,

Inc. v. Nielson, 116 F.3d 1406, 1412 (11th Cir. 1997).

      In addition to requiring a state law answer to the pre-1969 portion of Spain’s

claims, this case may also require us to decide the federal law issue of which, if

any, of Spain’s post-1969 claims are preempted by the Labeling Act. But we will

not reach that federal law issue unless some of those post-1969 claims are

otherwise viable under state law. In other words, if Spain has no post-1969 claims

as a matter of state law, or if there are complete state law defenses to those claims,

then we will not reach the federal law preemption issue. That is why resolution of

the state law issues is certainly the first, and depending upon how those issues are

resolved could be the final, step in deciding this case.

                          B. THE STATE LAW ISSUES

              1. When the Causes of Action Accrued for Purposes
                   of the Applicable Statutes of Limitations

                                           7
      There is no dispute about which statutes of limitations apply to Spain’s

claims. The parties agree that the AEMLD, negligence, wantonness and conspiracy

claims are subject to a 2-year statute of limitations, see Ala. Code § 6-2-38, and

that the breach of warranty claim is subject to a 4-year statute of limitations, see

Ala. Code § 7-2-725. The dispute is about when the claims arose, or the causes of

action accrued, and thus when those statutes of limitations began to run.

      Alabama’s general rule regarding statutes of limitations is as follows:

             If the act of which the injury is the natural sequence is of itself a legal
             injury to plaintiff, a completed wrong, the cause of action accrues and
             the statute begins to run from the time the act is committed, be the
             actual damage [then apparent] however slight, and the statute will
             operate to bar a recovery not only for the present damages but for
             damages developing subsequently and not actionable at the time of the
             wrong done; for in such a case the subsequent increase in the damages
             resulting gives no new cause of action. Nor does plaintiff’s ignorance
             of the tort or injury, at least if there is no fraudulent concealment by
             defendant, postpone the running of the statute until the tort or injury is
             discovered.

Kelly v. Shropshire, 75 So. 291, 292 (1917) (as quoted in Garrett v. Raytheon Co.,

368 So. 2d 516, 519 (Ala. 1979)). However:

             there are cases where the act complained of does not itself constitute a
             legal injury at the time, but plaintiff’s injury only comes as a result of,
             and in furtherance and subsequent development of, the act defendant
             has done. In such cases, the cause of action accrues, and the statute of
             limitations begins to run, when, and only when, the damages are
             sustained.



                                           8
Garrett v. Raytheon Co., 368 So. 2d at 519 (internal marks omitted); see generally

McWilliams v. Union Pacific Resources Co., 569 So. 2d 702, 704-06 (Ala. 1990)

(Maddox, J., concurring specially) (discussing the “two lines of cases dealing with

the tolling of the statute of limitations where the damages became apparent only

sometime after the actual wrong was committed”).8

       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. As a result, they

contend, Spain’s claims are barred in their entirety by the applicable statutes of

limitations. Spain, on the other hand, maintains 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 within the statutes of

limitations.

       If defendants are correct that these kinds of causes of action accrue when a

smoker becomes addicted to cigarettes, then all of the claims in this case are barred


       8
          Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979), itself was not one of those cases.
In Garrett, a plaintiff brought suit to recover for injuries as a result of his exposure to radiation
during 1955-1957. The Court held that the injury occurred on the date or dates of exposure,
rather than occurring when “it made itself manifest by its symptoms.” Id. at 521. The fact that
the plaintiff was unaware of the adverse medical effects until a doctor informed him of
radiation’s harmful affects in 1977 was held to be irrelevant. See id. at 518-19.

                                                  9
by statutes of limitations. By contrast, if Spain is correct that the causes of action

did not accrue until Carolyn was diagnosed with lung cancer, which occurred less

than a year before the filing of the complaint, then none of the claims is barred on

statute of limitations grounds. So, the question of when the causes of action

accrued for statute of limitations purposes is critically important to, and may be

dispositive of, this case.

       Unfortunately, we have been unable to locate a clear answer to this state law

issue. The Alabama Supreme Court has yet to address statute of limitations issues

in the context of a cigarette products liability case, and it is uncertain whether the

“completed wrong” sufficient to begin the running of the applicable limitations

period occurs at the time of addiction to cigarette smoking, the time of the last

exposure to cigarette smoke, the time a smoking-related illness or injury is

diagnosed, or some other time.9 The Alabama Supreme Court could choose any of

a number of alternatives. Compare Garrett, 368 So. at 519 (last date of exposure to

radiation begins the running of statute of limitations); with Chatham v. CSX

Transp., Inc., 613 So.2d 341, 344 (Ala. 1993) (FELA case interpreting a Third

Circuit opinion as implying that if discovery of injury occurs before the end of


       9
         The Alabama Supreme Court did not explicitly address the accrual of the cause of
action and the running of the statute of limitations in Cantley, 681 So. 2d 1057, and we are not
convinced that opinion intended to imply any view on the matter.

                                                10
exposure, the discovery of injury marks the beginning of the limitations period);

and Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 170 (5th Cir. 1996)

(continuing tort rule does not apply where plaintiff did not quit smoking until 1987

but learned of his injury in 1986, but that result was reached through application of

the discovery rule).10 Whatever alternative it chooses, the Alabama Supreme

Court is the proper court to make the choice. “[I]t would be irresponsible of us not

to give the Alabama Supreme Court an opportunity to decide th[is] difficult,

sensitive and [potentially] dispositive Alabama law issue[] . . . .” Blue Cross &

Blue Shield of Alabama, 116 F.3d at 1413.

                               2. The Rule of Repose Issues

       On a related note, the defendants also contend that Alabama rule of repose

bars Spain’s claims. Spain disagrees, maintaining not only that his case was timely

filed, but also that the rule of repose is inapplicable in personal injury tort cases

like this one.



       10
           We do note an interesting result that would occur if the Garrett holding were extended
without modification to this case. In Garrett, the Alabama Supreme Court concluded that
radiation exposure was a continuous tort and that the statute of limitations began to run on the
date of the last exposure to radiation. Garrett, 368 So.2d at 520-21. Accordingly, the plaintiff’s
cause of action accrued by 1957, the last day of exposure, despite the fact that he was not
diagnosed with radiation-related maladies until twenty years after then. See id. Here, if the
causes of action accrued when Carolyn was last exposed to cigarette smoke, they will have
accrued in 1999, despite the fact that she was diagnosed with a smoking-related illness the year
before then.

                                                11
          Alabama’s rule of repose is similar to a statute of limitations but broader in

its scope. “[T]he 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.” Boshell v. Keith, 418 So.2d 89, 91 (Ala. 1982)

(citations omitted). The rule of repose operates as an absolute bar to claims that

are not commenced within twenty years from the time they could have been. See

id. at 91. As the Supreme Court of Alabama stated:

                As a matter of public policy . . . it has long been the settled policy of
                this State . . . 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.

Snodgrass v. Snodgrass, 58 So. 201, 201 (1912) (as quoted in Boshell, 418 So.2d

at 91).

          We are unsure whether the rule of repose is applicable to this case. Although

it has been applied to a number of different actions, see, e.g., Tierce v. Ellis, 624

So.2d 553 (Ala. 1993) (applying the rule of repose to bar a declaratory judgment

action to establish paternity for the sake of determining estate’s heirs), we have not

been cited to nor have we located an Alabama Supreme Court case applying the

rule of repose to a personal injury tort suit. However, the Court of Civil Appeals

of Alabama has indicated in at least one case that the rule of repose can be applied


                                             12
to such an action. See Willis v. Shadow Lawn Memorial Park, 709 So.2d 1241

(Ala. Civ. App. 1998) (question of fact concerning the time that plaintiff’s claims

accrued prevents application of rule of repose in suit for fraud, conversion, breach

of burial contract, negligence, wantonness, and intentional or reckless infliction of

emotional distress). Again, we believe the Alabama Supreme Court should decide

the purely state law issue of whether the rule of repose operates to bar Spain’s

claims, which is yet another issue the resolution of which could dispose of this

case.

        The statute of limitations and rule of repose issues cut across the entire case,

and it is important that Alabama’s highest court be given the opportunity to answer

them: “The final arbiter of state law is the state supreme court, which is another

way of saying that Alabama law is what the Alabama Supreme Court says it is.

Because the only authoritative voice on Alabama law is the Alabama Supreme

Court, it is axiomatic that that court is the best one to decide issues of Alabama

law.” Blue Cross & Blue Shield of Alabama, 116 F.3d at 1413 (citations omitted).

        The answers to the statute of limitations and rule of repose questions could

dispose of this case, but if they do not there are other state law issues that need to

be decided. Spain’s substantive claims, which include claims under the AEMLD,




                                           13
and claims premised on negligence, wantonness, breach of warranty, and

conspiracy, are all based on state law.

                3. The Issues Involving Spain’s AEMLD Claim

      The Alabama Extended Manufacturer’s Liability Doctrine was first

recognized by the Alabama Supreme Court in Atkins v. American Motors Corp.,

335 So.2d 134 (Ala. 1976), and its companion case, Casrell v. Altec Indus., Inc.,

335 So.2d 128 (Ala. 1976). See Wakeland v. Brown & Williamson Tobacco

Corp., 996 F. Supp. 1213, 1217 (S.D. Ala. 1998). To recover under the AEMLD, a

plaintiff must show, among other things, that “an injury was caused by one who

sold a product in a defective condition that made the product unreasonably

dangerous to the ultimate user or consumer . . . .” Bell v. T.R. Miller Mill Co.,

Inc., __ So. 2d __ (Ala. 2000); see also Allen v. Delchamps, Inc., 624 So.2d 1065,

1068 (Ala. 1993).

      Under Alabama law, a product is not unreasonably dangerous unless it fails

to “meet the reasonable safety expectations of an ordinary consumer, that is, an

objective ordinary consumer possessed of the ordinary knowledge common to the

community.” Deere & Co. v. Grose, 586 So. 2d 196, 198 (Ala. 1991) (internal

marks and citations omitted); see also Casrell, 335 So. 2d at 133 (establishing

“reasonable expectations” test and adopting comment i to § 402A of the


                                          14
Restatement (Second) of Torts); Ex Parte Chevron Chemical Co., 720 So.2d 922,

927 (Ala. 1998) (“unreasonably dangerous” product does not include “a product

the dangers of which the consumer could be expected to be aware of, an awareness

that may be enlightened by a warning.”). “Although, under Alabama law, a jury

ordinarily evaluates a plaintiff's claims that a product is defective, our review of the

pertinent case law convinces us that certain products whose inherent danger is

patent and obvious, do not, as a matter of law, involve defects of a sort that a jury

should resolve.” Elliott v. Brunswick Corp., 903 F.2d 1505, 1507 (11th Cir. 1990).

       The defendants contend that cigarettes are not unreasonably dangerous as a

matter of Alabama law, because the risks of smoking have been commonly known

among ordinary consumers for many years.11 They point to published scientific

studies from 1920 to 1962; to Austin v. State of Tennessee, 179 U.S. 343, 348, 21

S. Ct. 182 (1900), a 1900 Supreme Court case which, they contend, recognized the

risks of cigarettes; and to an Alabama law, more than a century old, which

restricted the use of cigarettes by minors. Spain responds that a jury should

determine whether products are unreasonably dangerous, and that there is a



       11
          The defendants also argue that Spain failed to adequately plead a specific defect in the
design or manufacture of the defendants’ products and failed to allege that at the time of
manufacture a safer, practical alternative design was available which would have prevented
Carolyn’s injury. In their brief to this Court, the defendants relegate that argument to two
sentences in a footnote.

                                                15
question as to whether in the early 1960s the general public was aware of the

dangerousness of cigarettes.

      Carolyn started smoking sometime in 1962 and became addicted to

cigarettes soon thereafter. The federally mandated warnings did not appear until

well after, but there is evidence that people in general knew prior to 1962 that

smoking is dangerous to health. In its 1992 opinion in Cipollone, 505 U.S. 504,

112 S. Ct. 2608, the Supreme Court recognized that the dangers of cigarettes were

well-known and had been for decades.12 See id. at 508, 112 S. Ct. at 2613; accord,

      12
           The Court wrote:

               Although physicians had suspected a link between smoking and illness for
               centuries, the first medical studies of that connection did not appear until the
               1920's. The ensuing decades saw a wide range of epidemiologic and laboratory
               studies on the health hazards of smoking. Thus, by the time the Surgeon General
               convened an advisory committee to examine the issue in 1962, there were more
               than 7,000 publications examining the relationship between smoking and health.

                        In 1964, the advisory committee issued its report, which stated as its
               central conclusion: "Cigarette smoking is a health hazard of sufficient importance
               in the United States to warrant appropriate remedial action." Relying in part on
               that report, the Federal Trade Commission (FTC), which had long regulated
               unfair and deceptive advertising practices in the cigarette industry, promulgated a
               new trade regulation rule. That rule, which was to take effect January 1, 1965,
               established that it would be a violation of the Federal Trade Commission Act "to
               fail to disclose, clearly and prominently, in all advertising and on every pack, box,
               carton, or container [of cigarettes] that cigarette smoking is dangerous to health
               and may cause death from cancer and other diseases." Several States also moved
               to regulate the advertising and labeling of cigarettes. Upon a congressional
               request, the FTC postponed enforcement of its new regulation for six months. In
               July 1965, Congress enacted the Federal Cigarette Labeling and Advertising Act
               (1965 Act or Act). The 1965 Act effectively adopted half of the FTC's regulation:
               the Act mandated warnings on cigarette packages (§ 5(a)), but barred the
               requirement of such warnings in cigarette advertising (§ 5(b)).

                                                16
Allgood, 80 F.3d at 172 (affirming district court’s alternative ruling in case

involving smoker who was diagnosed with emphysema in 1986 and died in 1989

that claims based on failure to warn were barred because smoking risks were

common knowledge; observing that “[l]ike the dangers of alcohol consumption,

the dangers of cigarette smoking have long been known to the community”);

Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir. 1988)

(affirming district court ruling that as of 1974, the relevant date in that case,

knowledge of the risks of cigarette smoking was widespread and precluded

existence of a jury question on whether cigarettes are unreasonably dangerous ).

Moreover, the Report of the Task Force on Tobacco Litigation Submitted to

Governor James and Attorney General Sessions, 27 Cumb. L. Rev. 577 (1996)

stated, “Virtually every smoker in Alabama has known (or at least should have

known) for many years that cigarettes are dangerous.” Id. at 590.

       But neither the Allgood nor the Royston decision involved Alabama law,

and the Alabama Supreme Court is not bound by those decisions anyway. There

is no decision of the Alabama Supreme Court close enough on point to remove our

uncertainty about how that Court will decide the issue when it is presented, as it



Cipollone, 505 U.S. at 513-14, 112 S.Ct. at 2615-16 (footnotes and internal citations omitted).
The smoker in the Cipollone case began smoking in 1942 and died in 1984. See id. at 508, 112
S. Ct. at 2613.

                                               17
inevitably will be in some case. Moreover, the answer to this question is

potentially dispositive of the AEMLD claim, and could render unnecessary any

decision by this Court on the federal preemption issues relating to that claim. For

these reasons, and because we are certifying the statute of limitations and rule of

repose issues to that Court anyway, we deem it prudent to send as well the

question of whether cigarettes are unreasonably dangerous as a matter of Alabama

law, both before and after the federally mandated warnings appeared.

              4. The Issues Involving the Other State Law Claims

      The issues we have discussed so far, which relate to the statute of

limitations, the rule of repose, and the AEMLD, involve unsettled and potentially

dispositive state law questions upon which we need guidance. There are other state

law issues in this case which we are reasonably confident that we can decide based

upon settled Alabama law. For that reason, we would not bother the Alabama

Supreme Court with these issues if they were the only state law issues in the case.

However, since we are certifying the other state law questions anyway, we think it

prudent to set out our understanding of state law on these other points and invite

the Alabama Supreme Court to correct our view on them if that view is wrong.

                           a. Negligence and Wantonness




                                          18
       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, 996 F. Supp. 1217-18.

       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.13


       13
          We do note that Veal involved a negligent or wanton design claim, but it did not also
involve, as the present case does, a negligent or wanton failure to warn claim. See Tillman v.
R.J. Reynolds Tobacco Co., 89 F. Supp.2d 1297, 1299-1300 (S.D. Ala. 2000)(characterizing
cases cited by plaintiff involving negligent or wanton failure to warn claims as “inapposite” to
that case which involved a negligent or wanton design claim), appeal docketed, No. 00-10963
(11th Cir. Feb. 18, 2000).

                                                19
                               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, 624 So.2d at 1068.

      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 and those arising under

the [Uniform Commercial Code] as adopted in Alabama.” Shell v. Union Oil Co.,


                                          20
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.14

                                        d. 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.15 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.16



       14
            Spain abandoned his express warranty claim at oral argument.
       15
           Spain’s conspiracy claim also appears to be premised in part on failure to warn
claims. If the Alabama Supreme Court holds that the failure to warn claims survive the
defendants’ state law arguments and defenses, so that they potentially could be a basis for
Spain’s conspiracy count, we will have to decide whether the failure to warn claims are
preempted by the Labeling Act and thus could not be a basis for Spain’s conspiracy count.
       16
           The defendants also contend that Spain does not allege with the specificity required by
Federal Rule of Civil Procedure 9(b) the fraudulent misrepresentation made to Carolyn.
Additionally, the defendants argue that the complaint is devoid of an allegation that Carolyn
relied on any statements of the defendants, much less reasonably relied to her detriment.

                                               21
        “[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, 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:

                                           22
             (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

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.

                        C. THE CERTIFIED QUESTIONS

      For the foregoing reasons, we respectfully certify to the Alabama Supreme

Court the following questions:




                                           23
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 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


                                          24
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.

       Our phrasing of the certified questions is not intended to restrict the scope of

inquiry by the Supreme Court of Alabama. As we have stated before:

               [T]he particular phrasing used in the certified question is not to
               restrict the Supreme Court’s consideration of the problems involved
               and the issues as the Supreme Court perceives them to be in its
               analysis of the record certified in this case. This latitude extends to
               the Supreme Court’s restatement of the issue or issues and the manner
               in which the answers are to be given, whether as a comprehensive
               whole or in subordinate or even contingent parts.

Blue Cross & Blue Shield of Alabama, 116 F.3d at 1414 (quoting Martinez v.

Rodriquez, 394 F.2d 156, 159 n. 6 (5th Cir. 1968) (citations omitted)). That means,

among other things, that if we have overlooked or mischaracterized any state law

issues or inartfully stated any of the questions we have posed, we hope the

Alabama Supreme Court will feel free to make the necessary corrections.17

       The entire record, including the briefs of the parties, is transmitted herewith.



       17
           We cannot and do not certify to the Alabama Supreme Court in this case the federal
preemption issues, if any, that may exist after the state law questions are answered. While state
and federal courts have concurrent jurisdiction to decide federal law issues such as preemption,
federal courts have the responsibility for deciding those issues when they arise in federal court,
and that is no less true when federal jurisdiction is based upon diversity of citizenship. Stated
somewhat differently, a federal court may not certify federal law issues to a state supreme court,
and we do not purport to do so.

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