230 F.3d 1300 (11th Cir. 2000)
Paul L. SPAIN as Administrator for the Estate of Carolyn Watts Spain, Deceased, Plaintiff-Appellant,v.BROWN & WILLIAMSON TOBACCO CORPORATION, Philip Morris, Inc., et al., Defendants- Appellees.
No. 99-15021.
United States Court of Appeals, Eleventh Circuit.
October 18, 2000.October 30, 2000

[Copyrighted Material Omitted][Copyrighted Material Omitted]
Appeal from the United States District Court for the Northern District of  Alabama. (No. 99-02424-CV-AR-S), William M. Acker, Jr., Judge.
Before CARNES, MARCUS and FARRIS*, Circuit Judges.
CARNES, Circuit Judge:


1
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

2
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).


3
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 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.1

B. PROCEDURAL HISTORY

4
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.2


5
The defendants removed the case to federal court,3 and after removal filed a  motion to dismiss all of Spain's claims under Federal Rule of Civil Procedure  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.4

II. DISCUSSION

6
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

7
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  ("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, 120 L.Ed.2d 407 (1992) (plurality opinion).


8
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.


9
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 required  by the Labeling Act.5 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.


10
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.6 Finally, Spain  argues that there is a genuine issue of material fact as to whether the  defendants violated the Labeling Act, although he does not specify what  consequences he thinks follow from such a failure.


11
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).


12
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

13
1. When the Causes of Action Accrued for Purposes of the Applicable Statutes of Limitations


14
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.


15
Alabama's general rule regarding statutes of limitations is as follows:


16
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.


17
Kelly v. Shropshire, 199 Ala. 602, 75 So. 291, 292 (1917) (as quoted in Garrett  v. Raytheon Co., 368 So.2d 516, 519 (Ala.1979)). However:


18
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.


19
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").7


20
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.


21
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 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.


22
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.8 The Alabama  Supreme Court could choose any of a number of alternatives. Compare Garrett, 368  So.2d 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 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).9 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

23
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.


24
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:


25
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.


26
Snodgrass v. Snodgrass, 176 Ala. 276, 58 So. 201, 201 (1912) (as quoted in  Boshell, 418 So.2d at 91).


27
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 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.


28
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).


29
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, 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

30
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., 768 So.2d 953  (Ala.2000); see also Allen v. Delchamps, Inc., 624 So.2d 1065, 1068 (Ala.1993).


31
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  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).


32
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.10 They point to published scientific  studies from 1920 to 1962; to Austin v. State of Tennessee, 179 U.S. 343, 348,  21 S.Ct. 132, 45 L.Ed. 224 (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 question as to whether in the early 1960s the general public was  aware of the dangerousness of cigarettes.


33
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, 120 L.Ed.2d 407, the Supreme Court recognized that the dangers of  cigarettes were well-known and had been for decades.11 See id. at 508, 112 S.Ct.  at 2613; accord, 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.


34
But neither the Allgood nor the Roysdon 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 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.


35
4. The Issues Involving the Other State Law Claims


36
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.


37
a. Negligence and Wantonness


38
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. at 1217-18.


39
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.12


40
b. Breach of Warranty


41
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.


42
Ala.Code  7-2-314, which governs the implied warranty of merchantability,  provides as follows:


43
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.


44
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.


45
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., 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.13


46
c. Conspiracy


47
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.14 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.15


48
"[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.


49
Under Alabama law, a fraudulent suppression claim requires a plaintiff to show:


50
(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.


51
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.


52
A fraudulent misrepresentation claim requires a plaintiff to show:


53
(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.


54
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

55
For the foregoing reasons, we respectfully certify to the Alabama Supreme Court  the following questions:


56
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?


57
2.Does the Alabama rule of repose apply in a smoking products liability case?


58
3.If so, when does the Alabama rule of repose begin to run in a smoking  products liability case?


59
4.Before the appearance of federally mandated warning labels on cigarettes  packages, were cigarettes "unreasonably dangerous" under the AEMLD?


60
5.Since the appearance of federally mandated warning labels on cigarettes  packages, have cigarettes been "unreasonably dangerous" under the AEMLD?


61
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:


62
a.that the negligence and wantonness claims merge into an AEMLD claim;


63
b.that the sale of cigarettes does not violate the implied warranty of  merchantability under Code of Alabama 1975,  7-2-314;


64
c.that the fraudulent suppression claim, which is a basis for Spain's  conspiracy claim, is not viable under Alabama law; and


65
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.


66
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:


67
[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.


68
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.16


69
The entire record, including the briefs of the parties, is transmitted herewith.



NOTES:


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


1
  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.


2
  Spain's AEMLD claim appears to encompass two separate claims-a claim for    design defect and a claim for failure to warn.


3
   Spain had also sued a number of non-diverse defendants, but he moved to    dismiss all of them and that motion was granted.


4
   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.


5
   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.


6
   Spain does not explain his varying use of the 1970 and 1969 dates to describe    the claims that he argues are not preempted.


7
   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.


8
   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.


9
   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.


10
   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.


11
 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)).
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.


12
 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. 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).


13
 Spain abandoned his express warranty claim at oral argument.


14
 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.


15
 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.


16
 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.


