                  IN THE SUPREME COURT OF MISSISSIPPI

                          NO. 2004-IA-01170-SCT

R. J. REYNOLDS TOBACCO COMPANY, BROWN &
WILLIAMSON TOBACCO CORPORATION, PHILLIP
MORRIS USA INC., THE CORR-WILLIAMS
COMPANY, AND FAYETTE SUPERMARKET, INC.

v.

URSULA R. KING, INDIVIDUALLY AND ON
BEHALF OF ALL WRONGFUL DEATH HEIRS AND
BENEFICIARIES OF MARY LEE LATHAM,
DECEASED


DATE OF JUDGMENT:                03/02/2004
TRIAL JUDGE:                     HON. LAMAR PICKARD
COURT FROM WHICH APPEALED:       JEFFERSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:        MICHAEL B. WALLACE
                                 REBECCA L. HAWKINS
                                 WALKER W. (BILL) JONES, III
                                 MARK C. CARROLL
                                 BRUCE R. TEPIKIAN
                                 MICHAEL W. ULMER
                                 LEWIS W. BELL
                                 CHRISTOPHER A. SHAPLEY
                                 ROBERT L. GIBBS
                                 ANDREA LA’VERNE FORD EDNEY
                                 BROOKE FERRIS, III
                                 RYAN JEFFREY MITCHELL
                                 THOMAS M. LOUIS
ATTORNEY FOR APPELLEE:           ROBERT C. LATHAM
NATURE OF THE CASE:              CIVIL - WRONGFUL DEATH
DISPOSITION:                     AFFIRMED & REMANDED - 06/30/2005
MOTION FOR REHEARING FILED:      08/04/2005; DENIED AND MODIFIED AT
                                 ¶18 - 03/02/2006
MANDATE ISSUED:
        EN BANC.

        RANDOLPH, JUSTICE, FOR THE COURT:

¶1.     Mary Lee Latham (“Latham”) began smoking cigarettes in 1964 at the age of 13.                 She

continued smoking cigarettes until her death from lung cancer, approximately forty years later

on September 20, 2001.

¶2.     On December 30, 2002, Ursula R. King, individually, and on behalf of the wrongful

death heirs and beneficiaries of the deceased, Mary Lee Latham (collectively “King”), filed

suit against several manufacturers, distributors and retailers of cigarettes (collectively “RJR”)

in the Circuit Court of Jefferson County, Mississippi.          In her well-pled complaint, King not

only alleged that Latham smoked cigarettes from 1964 until 2001 and “had developed

debilitating diseases as a result of cigarette smoking,”        King also alleged Latham’s damages

and wrongful death were proximately caused by RJR’s: (1) fraudulent misrepresentation; (2)

conspiracy to defraud; (3) negligent misrepresentation; (4) breach of express warranty; (5)

breach of implied warranty of fitness; and (6) deceptive advertising.

¶3.     King alleged ten causes of action in her                 complaint,    including:   (1) fraudulent

misrepresentation; (2) conspiracy to defraud; (3) strict liability; (4) negligence; (5) gross

negligence; (6) negligent misrepresentation; (7) breach of express warranty; (8) breach of

implied warranty of fitness; (9) deceptive advertising; and (10) wrongful death.

¶4.     On October 14, 2003, RJR filed a motion for judgment on the pleadings on behalf of

all properly served defendants together with a memorandum in support thereof, thereby moving

the court to dismiss the suit in its entirety based solely on the inherent characteristic defense


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of the Mississippi Product Liability Act (“MPLA”), codified in Miss. Code Ann. § 11-1-63

(Rev. 2002).

¶5.     King filed a response to RJR’s motion for judgment on the pleadings and memorandum

in support thereof on December 4, 2003.         In this response, King argued the MPLA did not

preclude her claims.

¶6.     One March 11, 2004, the circuit court entered a memorandum opinion and order

denying RJR’s motion.

¶7.     Thereafter, on June 7, 2004, the circuit court entered a supplemental order granting

RJR’s motion for judgment as to King’s strict liability, negligence, gross negligence, breach

of express warranty, and breach of implied warranty of fitness claims in light of this Court’s

decision in Owens Corning v. R.J. Reynolds Tobacco Co., 868 So. 2d 331 (Miss. 2004).

However, the trial judge denied RJR’s motion for judgment as to King’s fraudulent

misrepresentation, conspiracy to defraud, negligent misrepresentation, deceptive advertising,

and wrongful death claims.         On August 6, 2004, this Court granted RJR’s petition for

interlocutory appeal, but denied King’s cross petition for interlocutory appeal as untimely.

See M.R.A.P. 5.        Therefore, as King’s cross petition was untimely filed, the issues raised

therein will not be addressed by this Court.

¶8.     On appeal, RJR raises the following singular issue:

        Does the inherent characteristic defense of Miss. Code Ann. § 11-1-63(b) (Rev.
        2002), as interpreted in Lane v. R.J. Reynolds Tobacco Co., 853 So. 2d 1144
        (Miss. 2003), bar “any action for damages caused by” manufactured commercial
        cigarettes regardless of how the plaintiff labels the causes of action in the
        complaint?




                                                    3
¶9.     Answering this question in the negative, we affirm the judgment of the trial court and

remand this case for further proceedings.

                                             DISCUSSION

¶10.    Since a motion for judgment on the pleadings under Mississippi Rule of Procedure

12(c) raises an issue of law, this Court’s standard of review for the granting of that motion is

de novo. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206, 1210 (Miss. 2001).

Therefore, this Court sits in the same position as did the trial court.   Bridges ex rel. Bridges

v. Park Place Entm’t, 860 So. 2d 811, 813 (Miss. 2003). A Rule 12(c) motion is similar to

a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

City of Tupelo v. Martin, 747 So. 2d 822, 829 (Miss. 1999). On a Rule 12(c) motion, the

allegations in the complaint must be taken as true, and the motion should not be granted unless

it appears beyond any reasonable doubt that the non-moving party will be unable to prove any

set of facts in support of the claim which would entitle the non-movant to relief. Park Place

Entm’t, 860 So. 2d at 813 (citations omitted).

        I. Miss. Code Ann. § 11-1-63(b).

¶11.    “Products liability is the name currently given to the area of the law involving the

liability of those who supply goods or products for the use of others to purchasers, users, and

bystanders for loses of various kinds resulting from so-called defects in those products.”    W.

Page Keeton et al., Prosser and Keeton on Torts § 95, at 677 (5th ed. 1984).             “It may,

infrequently, rest upon intent; but except in rare instances, it is a matter of negligence, or of

strict liability.” Willaim L. Prosser, Law of Torts 641 (4th ed. 1971).




                                                    4
¶12.      RJR claims that all of King’s claims, including the claims 1 not dismissed by the trial

court, are within the scope of the MPLA, and thus, subject to the inherent characteristics

defense of Miss. Code Ann. § 11-1-63(b). RJR argues:

          “Broadly speaking, the second issue is whether the [Mississippi Product [sic]
          Liability Act] bars all suits based on injuries that arise out of the use [of]
          tobacco products.” Lane v. R.J. Reynolds Tobacco Co., 853 So. 2d 1144, 1147
          (Miss. 2003). The issue presented in this appeal is whether this Court’s
          affirmative answer in Lane was as broad as its question. Stated differently, when
          this Court held that the inherent characteristic defense of Miss. Code Ann. § 11-
          1-63(b) “precludes all products liability actions against tobacco companies,” did
          that mean that the statute precludes “all suits based on injuries that arise out of
          the use of tobacco products”? Id. at 1147, 1149. Because the inherent
          characteristic defense applies broadly to “any action for damages caused by”
          cigarettes, Miss. Code Ann. § 11-1-63, the answer to this question is necessarily
          “yes.”

¶13.      King argues the inherent characteristics defense does not apply, and the MPLA does

not bar suits based on theories other than products liability.       King asserts: “[T]he [t]obacco

[c]ompanies attempt to convince this Court that there are no legitimate product[s] liability

claims.       Further the [t]obacco [c]ompanies argue that even if legitimate claims exist, it has

complete immunity since the passage of Mississippi Code Annotated § 11-1-63 codifying the

‘inherent characteristic defense.’”

¶14.      The MPLA provided in pertinent part:

                In any action for damages caused by a product except for commercial
          damage to the product itself:

                            (a) The manufacturer or seller of the product shall not be
                   liable if the claimant does not prove by the preponderance of the
                   evidence that at the time the product left the control of the
                   manufacturer or seller:

          1
         Fraudulent misrepresentation, conspiracy to defraud, negligent misrepresentation,
deceptive advertising, and wrongful death.

                                                   5
                               (i) 1. The product was defective because it
                       deviated in a material way from the manufacturer's
                       specifications or from otherwise identical units
                       manufactured to the same manufacturing
                       specifications, or

                                   2. The product was defective because it
                       failed to contain adequate warnings or instructions,
                       or

                                3. The product was designed in a defective
                       manner, or

                                      4. The product breached an express
                       warranty or failed to conform to other express
                       factual representations upon which the claimant
                       justifiably relied in electing to use the product; and

                              (ii) The defective condition rendered the
                       product unreasonably dangerous to the user or
                       consumer; and

                               (iii) The defective and unreasonably
                       dangerous condition of the product proximately
                       caused the damages for which recovery is sought.

                      (b) A product is not defective in design or formulation
               if the harm for which the claimant seeks to recover
               compensatory damages was caused by an inherent
               characteristic of the product which is a generic aspect of the
               product that cannot be eliminated without substantially
               compromising the product's usefulness or desirability and
               which is recognized by the ordinary person with the ordinary
               knowledge common to the community.

Miss. Code Ann. § 11-1-63 (emphases added).2




       2
          The Legislature has since amended § 11-1-63. See 2004 Miss. Laws 1st Ex. Sess.
ch. 1, § 3; 2002 Miss. Laws 3rd Ex. Sess. ch. 4, § 5. These amendments do not apply to this
case.

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¶15.    First, this Court never gave an affirmative answer in Lane that the MPLA bars all suits,

but rather concluded: “State law precludes all tobacco cases that are based on products

liability.” 853 So. 2d at 1150 (emphases added). Clearly, this Court only stated that state law

precludes all tobacco cases based upon products liability, not all tobacco cases, which could

be based on other possible theories of recovery. Second, § 11-1-63(b) is commonly referred

to as the “inherent characteristics defense” and is just that–a defense that must be pled and

proven, rather than an outright bar.3

¶16.    The inherent characteristic defense in subsection (b) of § 11-1-63 does not bar “any

action for damages caused by” cigarettes.

¶17.    First, the inherent characteristic defense applies only to a products liability action. One

would not expect to see this defense pled in any other type of liability action. As the trial court

dismissed the products liability claims, and King failed to timely appeal, no products liability

claim is presently before the Court in the case sub judice.

¶18.    Second, as with any other affirmative defense, the inherent characteristic defense is a

matter of proof. The burden rests upon the defendant, not the plaintiff, to prevail on an

affirmative defense. Pearl Pub. Sch. Dist. v. Groner, 784 So. 2d 911, 916 (Miss. 2001)

(citing Marshall Durbin Cos. v. Warren, 633 So. 2d 1006, 1009 (Miss. 1994)). Whether one

accepts traditional requirements that the defendant carries the burden of proving the essential

elements of any affirmative defense, or assuming arguendo the statute requires the plaintiff to




        3
          RJR acknowledges that § 11-1-63(b) is a defense rather than a bar. In its brief,
RJR states: “The inherent characteristic defense of Miss. Code Ann. § 11-1-63(b) . . .
applies ‘[i]n any action for damages cause by’ cigarettes.’” (Emphasis added).

                                                    7
prove her case to the exclusion of the elements enumerated, is of no consequence.             The

elements must be satisfied. Some of the questions that must be answered before a party may

prevail include: (1) whether the plaintiff was harmed; (2) if harmed, was such harm caused by

an inherent characteristic of the product; (3) if so, whether the inherent characteristic is a

generic aspect of the product; (4) if generic, could the inherent characteristic have been

eliminated without substantially compromising the product’s usefulness or desirability; and

(5) whether the inherent characteristic is recognized by the ordinary person with the ordinary

knowledge common to the community. If all of these elements are not specifically established

in the pleadings, issues remain for the fact-finder. Accordingly, a motion to dismiss on the

pleadings should not be sustained. Subsection (b) of § 11-1-63 precludes certain, but not all,

products liability claims of defective design or formulation.

¶19.    The statute clearly contemplates suits may be brought under the statute.      The language

of § 11-1-63 uses words such as requiring proof, which presuppose that a plaintiff may file an

action and offer proof on the issue of the defendant’s liability, whether in response to a motion

for summary judgment or at trial. The statute states that the manufacturer or seller “shall not

be liable” unless the elements of the statute are met.              Miss. Code Ann. § 11-1-63(a).

Accordingly, the defendant shall not be liable if the facts warrant, or if the elements of the

statute are not met. The statute does not preclude or bar an action, although it clearly creates

what some may argue to be formidable obstacles for a plaintiff to overcome in order to prevail.

Regardless of one’s opinion, the statute did not create immunity from suit for tobacco

companies. The rights afforded under the statute are available to all parties.




                                                     8
¶20.    The statute is replete with a series of affirmative defenses, any one of which, if the

defendant prevailed upon, could result in success to the defendants, i.e., “shall not be liable.”

The statute even concludes with a catchall that the listed defenses were not meant to “eliminate

any common law defense to an action for damages caused by a product” available to the

defendant. Miss. Code Ann. § 11-1-63(a) & (h).

¶21.    Because the inherent characteristic defense applies only to products liability actions,

this issue is without merit.

        II. Mississippi Statute v. Texas Statute.

¶22.    RJR argues that a broad definition of “products liability action” was intended by the

Mississippi Legislature when it adopted § 11-1-63.          Furthermore, RJR argues that the Texas

products liability statute cited in Sanchez v. Liggett & Myers, Inc., 187 F.3d 486 (5th Cir.

1999), is no broader than § 11-1-63.

¶23.    The Texas Legislature defined a “products liability action” as:

        any action against a manufacturer or seller for recovery of damages arising out
        of personal injury, death, or property damage allegedly caused by a defective
        product whether the action is based in strict tort liability, strict products
        liability, negligence, mis-representation, breach of express or implied warranty,
        or any other theory or combination of theories.

Sanchez, 187 F.3d at 489 (quoting Tex. Civ. Prac. & Rem. Code § 82.001(2) (Vernon 1997)).

¶24.    Miss. Code Ann. § 11-1-63 contains no such definition. However, the defendants wish

to impute this definition into “any action for damages.” In its brief, RJR includes a copy of a

newspaper article in an attempt to show the intent of the drafters in enacting § 11-1-63.

However, because the statute is not ambiguous, this Court will not consider same.       See Allred

v. Yarborough, 843 So. 2d 727, 729 (Miss. 2003) (citations omitted) (“In considering a

                                                    9
statute passed by the legislature, . . . the first question a court should decide is whether the

statute is ambiguous.      If it is not ambiguous, the court should simply apply the statute

according to its plain meaning and should not use principles of statutory construction.”).   To

adopt the Texas definition into a Mississippi statute would require this Court to assume powers

confided to another branch of government–the Legislature. See Miss. Const. art. 1, § 1.      We

decline to do so, and for good reason. See Rohrbacher v. City of Jackson, 51 Miss. 735, 745

(1875) (“The representative body is entrusted with the responsibility of consulting the public

interest and carrying out public policy by the enactment of laws.   The power to review their

fitness and wisdom does not belong to the courts.”).

       III. Owens Corning.

¶25.   RJR asserts that the Owens Corning decision emphasizes the breadth of the Lane

holding. RJR’s reliance on Owens Corning is misplaced.

¶26.   Owens Corning, was an appeal from a grant of summary judgment. 868 So. 2d at 334.

The trial court entered summary judgment in favor of tobacco defendants based on the

“remoteness doctrine” and directed entry of final judgment against all of Owens Corning’s

claims. Id.    Then-Justice, now-Presiding Justice Cobb, speaking for the Court concluded that

Owens Corning’s claims were indirect. Id. at 338. Justice Cobb noted that nine federal courts

of appeals and several state appellate courts weighed this issue and rejected claims similar to

Owen Corning’s. Id. at 337-38 n.7. See, e.g., Tex. Carpenters Health Benefit Fund v. Philip

Morris, Inc., 199 F.3d 788 (5th Cir. 2000) (loss suffered was too remote from the

manufacture and sale of cigarettes to recover for alleged antitrust or RICO violations . . .



                                                  10
funds’ lawsuits constitute an illegitimate end-run around principles of subrogation); Seibels

Bruce Group, Inc. v. R.J. Reynolds Tobacco Co., 1999 WL 760527 (N.D. Cal. Sept. 21,

1999) (no standing absent showing of direct injury); Republic of Venezuela ex rel. Garrido

v. Philip Morris Cos., 827 So. 2d 339 (Fla. Dist. Ct. App. 2002) (Plaintiff did not have a direct

independent cause of action against tobacco companies); Steamfitters Local Union No. 614

Health & Welfare Fund v. Philip Morris, Inc., 2000 WL 1390171 (Tenn. Ct. App. Sept. 26,

2000) (plaintiffs’ alleged injuries are too remote, as a matter of law, to permit recovery on

antitrust, fraud, deceit, misrepresentation,    conspiracy,   and   violation   of   the   Tennessee

Consumer Protection Act violations).

¶27.    Owens Corning quoted the U. S. Supreme Court: “‘[A] plaintiff who complain[s] of

harm flowing merely from the misfortunes visited upon a third person by the defendant’s acts

[is] generally said to stand at too remote a distance to recover.’” 868 So. 2d at 339 (quoting

Holmes v. Secs. Investor Prot. Corp., 503 U.S. 258, 268-69, 112 S. Ct. 1311, 1318, 117 L.

Ed. 2d 532 (1992)).        Furthermore, Justice Cobb stated that the “summary judgment was

determined based on the remoteness of injury, not the egregiousness of conduct.”             Owens

Corning, 868 So. 2d at 343.        Although Owens Corning cited Lane, it did not broaden the

application of Lane. See id. at 340. The case sub judice is clearly distinguishable from Owens

Corning, and as such, RJR’s issue is without merit.

                                          CONCLUSION

¶28.    Any holding or language in Lane that is inconsistent or contrary to our holding today

is expressly overruled.



                                                 11
¶29.    For the foregoing reasons, the judgment of the Circuit Court of Jefferson County,

Mississippi is affirmed, and this case is remanded to that court for further proceedings

consistent with this opinion.

¶30.    AFFIRMED AND REMANDED.

     SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES AND
DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




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