216 F.3d 596 (7th Cir. 2000)
VINCENT INSOLIA, BILLY MAYS, MAUREEN LOVEJOY,  KAREN INSOLIA, PHYLLIS MAYS, and LEE LOVEJOY,    Plaintiffs-Appellants,v.PHILIP MORRIS INCORPORATED, R.J. REYNOLDS  TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO  CORPORATION, B.A.T. INDUSTRIES P.L.C., LORILLARD  TOBACCO COMPANY, LIGGETT GROUP, INC., HILL  AND KNOWLTON, INC., THE COUNCIL FOR TOBACCO  RESEARCH-U.S.A., INC., and THE TOBACCO  INSTITUTE, INC.,    Defendants-Appellees.PHYSICIANS PLUS INSURANCE CORPORATION,    Plaintiff-Appellant,v.PHILIP MORRIS INCORPORATED, R.J. REYNOLDS  TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO  CORPORATION, B.A.T. INDUSTRIES P.L.C., LORILLARD  TOBACCO COMPANY, LIGGETT GROUP, INC., HILL  AND KNOWLTON, INC., THE COUNCIL FOR TOBACCO  RESEARCH-U.S.A., INC., and THE TOBACCO  INSTITUTE, INC.,    Defendants-Appellees.
No. 99-2654, No. 99-2693
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 19, 2000Decided June 16, 2000

Appeals from the United States District Court  for the Western District of Wisconsin.  No. 97 C 347 C--Barbara B. Crabb, Judge. [Copyrighted Material Omitted]
Before BAUER, CUDAHY, and EVANS, Circuit Judges.
EVANS, Circuit Judge.


1
If there were such a thing  as moral estoppel, the outcome of this appeal  would be plain. For decades tobacco companies  have assured the public that there is nothing to  fear from cigarettes, yet they now slough off  lawsuits like this one by professing that  everybody knew all along that smoking was risky.


2
In taking this litigation stance, the cigarette  makers either are suffering from amnesia or are  acknowledging that their propaganda over the  years has been ineffectual. Judicial estoppel,  however, applies only to inconsistent positions  adopted in litigation, and punishing hypocrisy is  something left to a court of another realm. The  only issue for us is whether this case was  properly snuffed out on summary judgment.


3
This appeal stems from a lawsuit filed against  this country's major cigarette makers and  industry trade groups by three former smokers who  developed lung cancer that they blame on smoking.  All three smokers began smoking long before the  first health warnings appeared on cigarette  packages in 1965 and all three smoked two to  three packs every day for several decades.  Vincent Insolia began smoking in 1935, at age 12,  and smoked until 1974. Billy Mays began smoking  in 1951, at age 13, and continued until 1994.  Maureen Lovejoy began smoking in 1953, at age 15,  and quit in 1996. The three were diagnosed with  lung cancer in the 1990's.


4
The former smokers and their spouses, all  Wisconsin citizens, filed suit in state court but  the defendants removed the case to federal court  under diversity jurisdiction, 28 U.S.C. sec.  1332. District Judge Barbara B. Crabb  extinguished all but one of the plaintiffs'  claims on summary judgment, 53 F. Supp. 2d 1032  (W.D. Wis. 1999), and the remaining claim  subsequently was dropped. On appeal, the  plaintiffs argue that their strict liability,  negligence, misrepresentation, and intentional  exposure to a hazardous substance claims should  have survived summary judgment, and they ask us  to certify several questions to the Wisconsin  Supreme Court.


5
We review a grant of summary judgment de novo,  construing the evidence in the light most  favorable to the nonmoving party. Bragg v.  Navistar Int'l Transp. Corp., 164 F.3d 373, 376  (7th Cir. 1998). Summary judgment is appropriate  under Federal Rule of Civil Procedure 56(c) if  there are no genuine issues of material fact.  Celotex Corp. v. Catrett, 477 U.S. 317, 322  (1986). Once the party moving for summary  judgment uncovers a hole in the opponent's case,  the nonmoving party that bears the ultimate  burden at trial must show that there is evidence  creating a genuine issue of material fact. Id. at  323-25. Material facts are those which might  affect the outcome of the suit. Anderson v.  Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An  issue is genuine if a reasonable trier of fact  could find in favor of the nonmoving party. Id.  The judge must ask whether a fair-minded jury  could return a verdict for the plaintiff on the  evidence presented. The existence of a mere  scintilla of evidence supporting a plaintiff's  position is insufficient; there must be evidence  on which a jury could reasonably find for the  plaintiff. Id. at 252.


6
We begin with the strict liability claim.  Wisconsin law, which governs this case, relies on  the Restatement (Second) of Torts in this area.  Vincer v. Esther Williams All-Aluminum Swimming  Pool Co., 230 N.W.2d 794, 797 (Wis. 1975); Dippel  v. Sciano, 155 N.W.2d 55, 63 (Wis. 1967). Section  402A of the Restatement says that one who sells  an unreasonably dangerous product is liable for  physical harm caused by the product. However, the  section's "comment i" explains that this rule  "applies only where the defective condition of  the product makes it unreasonably dangerous to  the consumer . . . . The article sold must be  dangerous to an extent beyond that which would be  contemplated by the ordinary consumer who  purchases it, with the ordinary knowledge common  to the community as to its characteristics."  Wisconsin courts have restated the Restatement as  follows: "If the average consumer would  reasonably anticipate the dangerous condition of  the product and fully appreciate the attendant  risk of injury, it would not be unreasonably  dangerous and defective. This is an objective  test and is not dependent upon the knowledge of  the particular injured consumer." Sumnicht v.  Toyota Motor Sales, 360 N.W.2d 2, 16 (Wis. 1984),  quoting Vincer, 230 N.W.2d at 798.


7
The plaintiffs contend that the average consumer  at the time in question did not fully appreciate  the health risks of smoking, in particular the  addictive nature of smoking. We must first define  this imaginary "average consumer" and pin down  the time in question. The plaintiffs propose that  in this context the "average consumer" should be  a beginning smoker, maybe even a beginning  teenage smoker. The Restatement incorporates the  common-sense notion that if a consumer knows  ahead of time that a product might be dangerous  but goes ahead and uses it anyway, the consumer  takes the risk upon himself and the manufacturer  will not be held strictly liable. Nicotine's  addictive grip makes it difficult to quit  smoking. Consequently, the state of knowledge of  the average consumer must be measured before the  average person is hooked and is no longer capable  of making a rational choice. We agree with the  plaintiffs that, when it comes to an addictive  product like cigarettes, the "average consumer"  is the beginning smoker.


8
The plaintiffs also believe the average consumer  should be a teenager because that is when many  people begin smoking and become addicted. The  defendants argue that Todd v. Societe Bic, S.A.,  21 F.3d 1402, 1408 (7th Cir. 1994) (en banc),  holds that children may never be the standard to  measure consumer expectations. Todd interpreted  Illinois law, which, like Wisconsin, adopted the  Second Restatement of Torts, Section 402A. Id. at  1405. In Todd, a 22-month-old child was killed by  a fire started by a 4-year-old child using a  cigarette lighter that belonged to one of the  adults in the household. Id. at 1404. The estate  of the deceased child sued the manufacturer of  the cigarette lighter, arguing that though the  ordinary adult consumer would have appreciated  the lighter's danger, children--who were  foreseeable users--would not have understood the  product's hazards. Id. at 1407-08. The court  refused to expand the Restatement's consumer  contemplation test from ordinary consumers to  foreseeable users. Id. at 1408.


9
Contrary to the defendants' interpretation, Todd  does not mean there is a universally fixed  definition of the ordinary consumer that bears no  relationship to the product in question. Because  the primary consumers, users, and purchasers of  cigarette lighters are adults, gauging the  perceived risks of cigarette lighters from the  average adult's viewpoint makes sense. The same  logic holds true even for a product--like  diapers--that is used primarily by children but  that is purchased and the use of which is  supervised by adults. But suppose there was a  product-- say, bubble gum--of which children were  not only the primary users, but also the primary  purchasers, independent of any parental control.  It would defy reason to excuse bubble gum  manufacturers for bubble-gum-related injuries to  children on the grounds that adults who rarely  use the product would have appreciated bubble  gum's hazards. Likewise, if the facts demonstrate  that the ordinary beginning smoker is a teenager,  then the consumer contemplation test should be  measured from the average pre-smoking teenager's  perspective.


10
Most smokers do begin smoking in their teens,  but the record does not reflect this. The  plaintiffs failed to introduce evidence that 82  percent of those who have ever smoked daily began  smoking before age 18. Centers For Disease Control and  Prevention, Morbidity and Mortality Weekly Report, Nov. 8,  1996, Volume 45, No. 45, citing U.S. Department of  Health and Human Services, Preventing Tobacco Use Among Young  People: A Report Of The Surgeon General (1994). Instead,  the plaintiffs pointed to the 1988 Surgeon  General's Report on Nicotine Addiction that said  tobacco addiction "almost always begins during  childhood or early adolescence" and to statistics  indicating that about 23 percent of all high  school students and 30 percent to 35 percent of  high school seniors in 1958 and 1966 smoked. The  Surgeon General's remark is imprecise, and  statistics about what percentage of teenagers  smoke are not pertinent to the question of what  percentage of smokers began smoking as teenagers.  Confined by the evidence in this record, we must  view the ordinary consumer of cigarettes as a  beginning adult smoker.


11
The second component of the consumer  contemplation test we must consider is the time  frame. The plaintiffs, oddly, suggest using 1964  as the benchmark. They say this is a convenient  measuring stick because it is when the first  major Surgeon General report on smoking came out,  and public awareness of smoking's hazards would  not have been any greater prior to the release of  that landmark report. The defendants, equally  oddly, advocated at oral argument that consumer  awareness be measured at the time the injury was  discovered, in other words in the 1990's when the  plaintiffs here learned they had lung cancer. The  idea behind the consumer contemplation test is  that consumers who had their eyes open when they  chose to use a potentially dangerous product  cannot later blame the manufacturer for their  foreseeable injuries. However, consumers who  began using a product at a time when the product  was thought to be safe are not precluded from  holding the manufacturer responsible when they  find out years later that--surprise!--the product  was toxic. Cigarette companies--along with the  makers of asbestos, DDT, and other products that  turned out to be bad news--would love a rule that  measures consumer awareness only after the damage  has been done and the danger thus discovered, but  such a rule would be more than a little  preposterous. Instead, what the ordinary consumer  contemplated about the dangers of smoking should  be evaluated at the time the plaintiffs began  smoking. For Insolia, that's 1935; for Lovejoy  and Mays, that's the early 1950's.


12
To sum up, the plaintiffs' strict liability  claim, at the summary judgment stage, hinges on  whether the plaintiffs produced evidence that  would allow a reasonable jury to find that  average American adults in 1935 and in the early  1950's did not understand the hazards of smoking  before they began to smoke.


13
The plaintiffs made a halfhearted effort in the  district court to show that the ordinary  consumer, at the time they began to smoke, did  not appreciate the general health risks of  smoking. Judge Crabb rejected this idea, and the  plaintiffs have dropped it on appeal. Other  courts also have held that there was common  knowledge of the evils of smoking, although the  plaintiffs in many of those cases began smoking  at a later date than did the plaintiffs in this  case. See Allgood v. R.J. Reynolds Tobacco Co.,  80 F.3d 168, 172 (5th Cir. 1996); Roysdon v. R.J.  Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir.  1988); Guilbeault v. R.J. Reynolds Tobacco Co.,  84 F.Supp.2d 263 (D.R.I.2000); Hollar v.  Philip Morris Inc., 43 F. Supp. 2d 794, 807 (N.D.  Ohio 1998); Jones v. American Tobacco Co., 17 F.  Supp. 2d 706, 718 (N.D. Ohio 1998); Tompkin v.  American Brands, Inc., 10 F. Supp. 2d 895, 905  (N.D. Ohio 1998); Todd v. Brown & Williamson  Tobacco Corp., 924 F. Supp. 59, 62 (W.D. La.  1996); Paugh v. R.J. Reynolds Tobacco Co., 834 F.  Supp. 228, 231 (N.D. Ohio 1993); The American  Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420,  429 (Tex. 1997). But see Hill v. R.J. Reynolds  Tobacco Co., 44 F. Supp. 2d 837, 844 (W.D. Ky.  1999) (court denied motion to dismiss because it  was unwilling to take judicial notice "of  something as intangible as public knowledge over  three decades in the past").


14
The plaintiffs' exclusive argument on appeal is  that although the typical consumer was aware that  smoking was bad, he or she didn't know back then  that smoking was addictive. The idea is that the  first cigarettes don't cause cancer, but they do  make you crave more cigarettes and those  additional cigarettes are the ones that cause  cancer down the road. It's really the addiction  that kills--not smoking. Several courts have said  that whether there is a distinction between  knowing about general health hazards and knowing  about the danger of addiction is a question of  fact that should be decided by a jury. See State  of Texas v. American Tobacco Co., 14 F. Supp. 2d  956, 966 (E.D. Tex. 1997) (when facts are viewed  in light most favorable to plaintiff, "while the  health risks of tobacco consumption are generally  known, the addictive nature of tobacco  consumption is not generally known due to the  concealment and misrepresentation by  Defendants"); Castano v. American Tobacco Co.,  961 F. Supp. 953, 958 n.1, 959 (E.D. La. 1997);  Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp.  1515, 1526 (D. Kan. 1995); Grinnell, 951 S.W.2d  at 429-31 ("we cannot simply assume that common  knowledge of the general health risks of tobacco  use naturally includes common knowledge of  tobacco's addictive quality"); Rogers v. R.J.  Reynolds Tobacco Co., 557 N.E.2d 1045, 1054 (Ct.  App. Ind. 1990).


15
To get past summary judgment the plaintiffs  needed to produce evidence that tobacco's  addictive nature--unlike its general health  risks--was generally unknown in 1935 and the  1950's. In a world where the amount of  information is always expanding, going back in  time to determine the state of public knowledge  50 and 65 years ago is no easy task. But we can  think of three types of material that might help  show what the ordinary person knew about smoking  in 1935 and the early 1950's: Public opinion  polls taken during those eras; other  contemporaneous assessments of public attitudes;  and information widely available to the public  through newspapers, magazines, television, or  other sources, from which one can infer what the  ordinary person might have known.


16
In the first category of evidence, the only  polling evidence was introduced by the defendants  and it addresses the public's perception of  general health risks, not what the public knew  about smoking's addictive danger. (Defense expert  Theodore A. Wilson said a 1954 nationwide Gallup  poll showed that 89.9 percent had heard or read  about the presumed connection between smoking and  lung cancer. Wilson also cited a 1960 poll of  youths by Scholastic Magazine in which 45.4  percent thought all smokers ran a greater risk of  lung cancer than nonsmokers, 19.6 percent thought  only heavy smokers ran a greater risk of lung  cancer, and 32.2 percent thought there might be  some connection but no conclusive link between  smoking and lung cancer.)


17
In the second category the record contains  several outside assessments that the public was  unaware of nicotine's addictive nature. R.J.  Reynolds Tobacco Company research scientist  Claude E. Teague wrote in a 1972 planning  memorandum that "the things which keep a  confirmed smoker habituated and 'satisfied', i.e.  nicotine and secondary physical and manipulative  gratifications, are unknown and/or largely  unexplained to the non-smoker." A Brown &  Williamson Tobacco Corporation marketing employee  wrote in a 1978 memo that "[v]ery few consumers  are aware of the effect of nicotine, i.e., its  addictive nature and that nicotine is a poison."  The Surgeon General's 1988 report said that many  children and adolescents who experiment with  cigarettes "are unaware of, or underestimate, the  strength of tobacco addiction." One of the  plaintiffs' experts, Dr. John Griest, stated in  his affidavit: "In my practice dealing with  nicotine addicted persons, I have found that most  were unaware of the highly addictive nature of  cigarette smoke until after they are addicted."  Griest's statement is of little value, since it  is doubtful that the limited number of patients  he has seen is representative of the public at  large in 1935 and the early 1950's. Though we are  mindful of the difficulty in coming up with  evidence that accurately gauges the state of  public information several decades ago, two stray  lines in industry memos and one sentence in a  government report strikes us as paltry.


18
In the third category the plaintiffs introduced  evidence of information disseminated by the  tobacco industry itself. For example, in 1954 the  Tobacco Industry Research Committee (which later  became the defendant Council for Tobacco  Research) took out a full-page advertisement  signed by the four defendant cigarette  manufacturers that was published in the 448  American newspapers serving cities with  populations of more than 25,000 people. Headed "A  Frank Statement to Cigarette Smokers," the  advertisement said "[w]e accept an interest in  people's health as a basic responsibility,  paramount to every other consideration in our  business. We believe the products we make are not  injurious to health." The defendant Tobacco  Institute issued a news release in 1988 that said  statistics about the number of people who have  managed to quit smoking "contradict any claim  that smoking is an 'addiction.' . . . The claims  that smokers are 'addicts' defy common sense and  contradict the fact that people quit smoking  every day." In 1994 congressional testimony that  received widespread attention, the chief  executive officers of each of the defendant  manufacturers testified under oath that they did  not believe nicotine was addictive. To be sure,  the ordinary consumer does not soak up every  piece of information that appears in an  advertisement, or, for that matter, every word  that is printed in a newspaper or uttered by a  government agency. But knowing what information  was available to the general public gives the  fact finder a rough idea of what the ordinary  consumer might know.


19
The plaintiffs rely most heavily on reports  issued by the Surgeon General and other medical  authorities. The Surgeon General's seminal 1964  report on smoking, for instance, said smoking was  habituating, but not addictive. The report  compared tobacco to coffee. It was not until 1988  that the Surgeon General declared smoking  addictive, comparing tobacco to cocaine. The  plaintiffs also offered a report by former U.S.  Food and Drug Administration head David A.  Kessler that said prior to 1980 no major public  health organization had determined that nicotine  was an addictive drug. The defendants belittle  this evidence as irrelevant, arguing that what  government authorities or medical experts say  does not reflect what the Average Joe on the  street knows. The plaintiffs' point, however, is  that if the public health community did not  conclude until 1980 or 1988 that smoking is  addictive, surely the Average Joe could not have  known in 1935, 1951, or 1953 that smoking was  addictive. This is a valid inference, and on  summary judgment all inferences are drawn in  favor of the nonmoving party.


20
The evidence in this record that the ordinary  consumer at the time the plaintiffs began smoking  was unaware of smoking's addictive danger is  surprisingly thin. Insolia has the strongest case  because he began smoking long before the first  Surgeon General's report on smoking and 30 years  before the first warnings appeared on cigarette  packs. Whether the evidence amounts to a mere  scintilla or whether it is enough to overcome  summary judgment would be a close call, absent  anything else. The plaintiffs have made it easy  for us, however, by conceding that the ordinary  consumer at the time in question knew that  smoking was habit-forming. One of the defendants'  proposed findings of fact in the district court  was that "[t]he average American has long had the  common knowledge of the potential health hazards  associated with cigarette smoking and the habit-  forming nature of cigarettes." The plaintiffs'  response was to "[a]dmit that the average  American has been led to believe that cigarettes  are merely 'habit-forming' as opposed to  'addictive,' and has not understood cigarettes as  highly addictive drug delivery devices."


21
There might well be, as the plaintiffs argue, a  difference between a habit that can easily be  broken and a physiological addiction that is  difficult to stop. But as Judge Crabb noted, the  average consumer would not be preoccupied with  the esoteric difference between a "habit" and an  "addiction." If the average American knew smoking  was habit-forming, the average American knew it  would be hard to quit smoking. The fact that the  Surgeon General and other authorities called  smoking only "habituating" in 1964 and not  "addicting" until 1988 is a semantical  distinction beyond the grasp of our Average Joe.  There is a considerable difference between  knowing that smoking is bad and knowing that  smoking is addictive, but there is not much of a  difference between knowing that smoking is  habituating and knowing it is addictive. Once the  plaintiffs conceded that the ordinary consumer  knew that smoking was habit-forming, they created  an enormous burden for themselves that they have  not surmounted.


22
Based on this particular evidentiary record, no  reasonable trier of fact could find for the  plaintiffs that the ordinary consumer in 1935 and  in the early 1950's did not appreciate the health  risks of smoking. This decision does not  foreclose the possibility that other plaintiffs  might prevail on a strict liability claim against  the tobacco industry. Another record in another  case might be different. Another plaintiff might  marshal better evidence that the haze of the  tobacco companies' propaganda obscured whatever  health hazards were known to the average  consumer. We explicitly reject the tobacco  industry's invitation to declare that cigarettes  are not unreasonably dangerous. But we do agree  with Judge Crabb that the plaintiffs in this case  did not meet their evidentiary burden on the  strict liability claim.


23
The next question is whether the plaintiffs'  negligence claim also falls prey to the consumer  contemplation test. Wisconsin law is not exactly  a model of clarity in delineating the difference  between strict liability, negligence per se, and  ordinary negligence. The best explanation,  however, comes from Justice Heffernan's  concurring opinion in Greiten v. LaDow, 235  N.W.2d 677, 683-86 (Wis. 1975), which was  subsequently adopted as the court's majority  opinion in Howes v. Deere & Co., 238 N.W.2d 76,  80 (Wis. 1976).


24
Interpreting Dippel v. Sciano, 155 N.W.2d 55  (Wis. 1967), Justice Heffernan said that the  finding of strict liability under the standards  of Section 402A is the equivalent of negligence  per se. Greiten, 235 N.W.2d at 684. Negligence  per se allows a plaintiff to recover where it is  impossible or unduly burdensome to prove that the  defendant acted negligently. Id. The plaintiff  need not prove fault. Instead, under a negligence  per se theory, the plaintiff need only prove that  a dangerously defective product caused the harm.  Id. at 685. The focus in negligence per se is on  the condition of the product, i.e., on the  results of the defendant's actions. Id. at 685  n.2, 686.


25
The focus in ordinary negligence, on the other  hand, is on how the defendant created the  product, i.e., on the defendant's conduct in  attaining the final result. Id. The plaintiff  must prove fault. Id. at 686. The plaintiff must  prove that the defendant failed to exercise  ordinary care and that this failure caused the  harm. Id. at 684-85.


26
In short, negligence per se is about effect,  while negligence is about conduct leading to that  effect. Negligence-- unlike negligence per se--  requires proving foreseeability. Conversely,  negligence per se--unlike negligence--requires  proving that the product was unreasonably  dangerous.


27
It is possible for a defendant to be both  negligent and negligent per se. "If the lack of  ordinary care results in a defective design, it  is indeed true that the product may well be  unreasonably dangerous even in the sense of  Dippel v. Sciano . . . . Where a plaintiff proves  negligence--in this case, the lack of ordinary  care in the design of a product--there is no  doubt that there may be recovery in the event the  defective design results in an unreasonably  dangerous product." Id. at 685.


28
It also is possible for a defendant to be  negligent, but not negligent per se. "[T]here may  be recovery for the negligent design of a product  even though it is not unreasonably dangerous in  the 402A sense." Id. As recently as last year the  Wisconsin Supreme Court affirmed this position.  Sharp v. Case Corp., 595 N.W.2d 380, 387-88 (Wis.  1999).


29
The issue for us is whether the plaintiffs'  negligence claim should go to a jury, even though  the consumer contemplation test of Section 402A  doomed their strict liability claim. The  plaintiffs, naturally, say yes, arguing that  their negligence claim revolves around the  defendants' conduct in creating a foreseeably  hazardous product. The defendants say no,  characterizing the plaintiffs' negligence claim  as a warmed-over version of their strict  liability claim. Judge Crabb categorized the  plaintiffs' negligence claim as a "hybrid" that  combined components of strict liability  (cigarettes are unreasonably dangerous because  they are addictive and cause cancer) with  components of negligence (the defendants knew  when making and selling cigarettes that the  product was dangerous). This combination placed  the plaintiffs' claim in the negligence per se  category, according to the district court, citing  Howes, 238 N.W.2d 76. Negligence per se is  governed by Section 402A, which shields  defendants from liability if the ordinary  consumer understood the product's risks, and thus  the plaintiffs' negligence (per se) claim fell  down the same chute as their strict liability  claim.


30
We disagree with this portion of the district  court's thoughtful analysis in this difficult  case. First, though closely related to the strict  liability claim, the plaintiffs' negligence claim  stands on its own. The plaintiffs' negligence  claim revolves around the tobacco companies'  conduct in producing cigarettes. The plaintiffs  contend that while designing, manufacturing,  marketing, and selling cigarettes, the defendants  could foresee that cigarettes were addictive and  cause cancer. The plaintiffs argue that by going  forward with the product despite that knowledge,  the tobacco companies breached their duty of  ordinary care and thus are liable for negligence.  Their negligence theory that the defendants were  at fault during the process is independent of  their strict liability claim regarding the final  result.


31
Second, even if the plaintiffs' negligence claim  contains ingredients of strict liability, we fail  to see any mandate in Howes that such a claim  must be treated as negligence per se. The  plaintiffs in Howes alleged negligence and strict  liability: negligence in how the product was  designed, manufactured, and marketed; strict  liability because the product was allegedly  unreasonably dangerous. 238 N.W.2d at 78. In  crafting the special verdict and instructions at  the close of trial, the court forced the  plaintiffs to choose between their negligence and  strict liability theories. Id. at 78-79. The  plaintiffs went with strict liability and lost.  Id. at 79. The Wisconsin Supreme Court reversed,  saying that the trial court should not  automatically have required the plaintiffs to  elect between the two theories because sometimes  the submission of both theories to the jury is  appropriate. Id.


32
Over the course of the opinion, what Howes  initially terms a "strict liability" claim  becomes referred to as "negligence per se." "We  here declare that when two grounds of negligence  are alleged it does not categorically follow that  the plaintiff must always elect one of the two  grounds of negligence for submission to the jury  . . . . This is especially so when the negligence  per se doctrine as formulated in Wisconsin  comparative negligence law from sec. 402A,  Restatement in Dippel, supra, and common law  negligence are both properly pleaded." Id.  (footnote omitted). Later, the court concludes  that the trial court erroneously thought that  "the issues of negligence were precluded by the  submission of the case to the jury on the  negligence per se doctrine." Id. at 80. Treating  negligence per se interchangeably with strict  liability is understandable, since the two are  close cousins, if not identical twins, under  Wisconsin law.


33
But nowhere does Howes transform the plaintiffs'  negligence claim into a negligence per se claim.  Throughout the opinion the plaintiffs' negligence  claim is consistently called a "negligence"  claim. The former smokers' claim of negligent  design and manufacture in this case is analogous  to the Howes' plaintiffs' negligence claim, not  to their strict liability claim. As we read it,  nothing in Howes requires categorizing the former  smokers' negligence claim as a negligence per se  claim.


34
Perhaps the district court's conclusion that  Howes refashioned the plaintiffs' negligence  claim into negligence per se was based upon the  following passage:


35
Greiten v. LaDow, supra, emphasizes that when the  claim is based upon negligence, it is necessary  to prove what the seller or manufacturer did or  did not do; that there was a breach of the duty  of ordinary care and that the element of  foreseeability was encompassed as an element of  proof. It was also pointed out if such proof  demonstrated a defective condition unreasonably  dangerous to the user or consumer, the product  might well fall within the negligence per se  doctrine of Dippel, supra.


36
Howes, 238 N.W.2d at 80. In saying that a  negligence case might fall within the negligence  per se doctrine of Dippel if the proof of  negligence also demonstrated an unreasonably  dangerous condition, Howes merely reiterated  Greiten's teaching that a defendant could be both  negligent and negligent per se, as discussed  earlier. Howes goes on to endorse Greiten's  explanation of the distinction between negligence  and negligence per se--and Greiten made clear  that the negligence per se framework had not been  imposed upon negligence actions. "Dippel did not  intend to apply the dangerously defective  standard to an ordinary negligence case. It was  not intended to modify or to limit a plaintiff's  right to recover, but to extend that right to  those circumstances where it was impossible to  allege the particulars of negligence. It was not  intended that Dippel be transplanted to  negligence actions." Greiten, 235 N.W.2d at 684.  Consequently, we part ways with the district  court's assessment that Howes places the former  smokers' negligence claims "squarely within the  negligence per se category."


37
It may seem puzzling that a defendant could be  found negligent for designing a product that in  the end is not found unreasonably dangerous.  Critics point out that "negligence requires a  jury to find that the product creates an  unreasonable risk of harm to the consumer; if the  jury finds that the product does not present an  unreasonable danger or defect in the strict  products liability sense, then the jury cannot  find the manufacturer negligent because the jury  cannot logically find an unreasonable risk of  harm to the consumer created by the  manufacturer's conduct." Sharp, 595 N.W.2d at  388. Supporters argue that "a jury's finding that  a defect did not create a quantum of danger  reaching the 'unreasonable' level in deciding a  strict liability claim does not preclude a  finding that a defect existed that could have  been discovered and that failure to discover the  defect constituted a breach of a defendant's duty  of ordinary care, thereby causing a plaintiff's  injuries." Id. Puzzling or not, this is the law  in Wisconsin and we are bound to uphold that law.  Hansen v. Cessna Aircraft Co., 578 F.2d 679, 682-  84 (7th Cir. 1978).


38
Perhaps what the consumer contemplation test did  to the plaintiffs' strict liability claim, the  concept of contributory negligence will do to the  plaintiffs' negligence claim. That, however, is  not for us to decide. Apportioning negligence  generally is a question for the jury. See, e.g.,  Stewart v. Wulf, 271 N.W.2d 79, 84 (Wis. 1978).  As a matter of law, the plaintiffs' negligence  claims are distinct from their strict liability  claims, and the district court erred in stubbing  out the former on summary judgment.


39
We now shift our attention to the plaintiffs'  claims that the tobacco companies conspired to  fraudulently conceal and misrepresent the health  risks of smoking. In contrast to their strict  liability claim that necessitated determining  only what the generic average beginning smoker  knew, the plaintiffs' fraud claims require proof  that they specifically relied upon the alleged  misrepresentation or that they specifically were  victims of the alleged fraudulent concealment.  Because none of the plaintiffs could recall a  single statement from the tobacco industry about  the effects of smoking, Judge Crabb stamped out  their original fraud claims for lack of proof of  reliance and causation.


40
In briefing the summary judgment motion,  however, the smokers attempted to transform their  claim that they were directly defrauded into a  claim that the public health community was  defrauded and that they in particular suffered as  a result. The theory is that cigarette makers  concealed information about the addictive  qualities of nicotine, consequently the public  health community did not recognize until recently  that smoking is addictive, consequently no one  tried to create smoking cessation products until  recently, consequently the plaintiffs were unable  to quit smoking sooner, and consequently their  chances of avoiding lung cancer were diminished.


41
Aside from the tenuous and speculative link  between the defendants' alleged concealment at  the beginning of the chain and the actual  injuries to these plaintiffs at the end of the  chain, the plaintiffs' new theory runs into  another problem--namely, that it is new. "A  plaintiff may not amend his complaint through  arguments in his brief in opposition to a motion  for summary judgment." Shanahan v. City of  Chicago, 82 F.3d 776, 781 (7th Cir. 1996). The  smokers insist that their public health community  theory was not cooked up on summary judgment, but  already was lurking in their answers to certain  interrogatories. Given the plethora of paper  produced by a case like this, bits of information  in an interrogatory hardly provides the  particularity required of a fraud claim. See Fed.  R. Civ. P. 9(b).


42
Finally, the plaintiffs ask us to recognize a  tort claim of "intentional exposure to a  hazardous substance" or, alternatively, to  certify the issue to the Wisconsin Supreme Court.  Federal courts are loathe to fiddle around with  state law. Though district courts may try to  determine how the state courts would rule on an  unclear area of state law, district courts are  encouraged to dismiss actions based on novel  state law claims. Railway Express Agency, Inc. v.  Super Scale Models, Ltd., 934 F.2d 135, 138 (7th  Cir. 1991). When confronted with a state law  question that could go either way, the federal  courts usually choose the narrower interpretation  that restricts liability. Birchler v. Gehl Co.,  88 F.3d 518, 521 (7th Cir. 1996). Innovative  state law claims should be brought in state  court. Afram Export Corp. v. Metallurgiki Halyps,  S.A., 772 F.2d 1358, 1370 (7th Cir. 1985).


43
The plaintiffs say they tried to litigate this  in state court, but the tobacco companies--as  they generally do in cases like this--removed the  case to federal court. The plaintiffs are in a  predicament because state law in this area is  stunted by the ability of tobacco companies to  remove cases under diversity jurisdiction. Some  tobacco litigation, however, has taken place in  state courts. See, e.g., Ramos v. Philip Morris  Cos., Inc., 743 So.2d 24 (Fla. Dist. Ct. App.  1999); Small v. Lorillard Tobacco Co., Inc., 679  N.Y.S.2d 593 (N.Y. App. Div. 1998); Grinnell, 951  S.W.2d 420; Horton v. American Tobacco Co., 667  So.2d 1289 (Miss. 1996); Gilboy v. American  Tobacco Co., 582 So.2d 1263 (La. 1991); Forster  v. R.J. Reynolds Tobacco Co., 437 N.W.2d 655  (Minn. 1989). And even if the plaintiffs are in  something of a bind, that does not justify the  federal courts imposing a new tort claim on  Wisconsin.


44
That said, there is little indication that  Wisconsin courts would recognize the "intentional  exposure" claim the plaintiffs espouse. The  plaintiffs compare their claim to battery cases  in which physical force is not a requirement,  citing 19th century cases from other  jurisdictions. Commonwealth v. Stratton, 114  Mass. 303, 305-06 (1873); State v. Monroe, 28  S.E. 547, 548 (N.C. 1897). But Wisconsin battery  law requires unlawful physical touching and the  use of force or violence. Vandervelden v.  Victoria, 502 N.W.2d 276, 278 (Wis. Ct. App.  1993). The plaintiffs compare their claim to  nuisance cases, citing Vogel v. Grant-Lafayette  Elec. Coop., 548 N.W.2d 829, 834 (Wis. 1996)  (nuisance claim for stray voltage injury to  cattle), and Jost v. Dairyland Power Coop., 172  N.W.2d 647, 652 (Wis. 1969) (nuisance claim for  intentional emission of hazardous chemicals into  air that fell on crops). But nuisance requires  damage to property. Vogel, 548 N.W.2d at 834. The  plaintiffs cite a smattering of other cases that  they say recognize similar claims. Bennett v.  Larsen Co., 348 N.W.2d 540, 548 (Wis. 1984)  (applying pesticides in violation of a criminal  statute is negligence per se); Brabazon v.  Joannes Bros. Co., 286 N.W. 21 (Wis. 1939)  (intentionally spraying a substance toxic to  plaintiff may be grounds for a tort claim). But  we do not find these cases analogous and we  decline to invent what would be a truly novel  tort claim in Wisconsin.


45
We also decline to certify to the Wisconsin  Supreme Court the question of whether Wisconsin  courts would recognize an intentional exposure to  a hazardous substance claim. Certification may be  appropriate where there are unresolved questions  of existing state law, see, e.g., Hanlon v. Town  of Milton, 186 F.3d 831, 835 (7th Cir. 1999); In  re Badger Lines, Inc., 140 F.3d 691, 698-99 (7th  Cir. 1998); Shirkey v. Eli Lilly & Co., 852 F.2d  227 (7th Cir. 1988), but we simply cannot certify  every creative but unlikely state cause of action  that litigants devise from a blank slate.


46
In addition, we decline to certify whether the  average consumer for consumer contemplation test  purposes should be the adolescent beginning  smoker. The plaintiffs waived this issue by  failing to raise it in the district court.  Regardless, the plaintiffs' scant evidence  supporting their strict liability claim would not  satisfy the test under even the most favorable  definition of the average consumer. Thus, the  issue is not controlling and is unsuitable for  certification. Hanlon, 186 F.3d at 835. Our  decision renders moot the plaintiffs' request for  certification on the negligence issue.


47
Recapping our decision, we AFFIRM the district  court's grant of summary judgment on the strict  liability, fraud, and intentional exposure to a  hazardous substance claims. We also AFFIRM Judge  Crabb's decision not to certify any issues to the  Wisconsin Supreme Court. However, we REVERSE the  grant of summary judgment on the negligence claim  and REMAND that portion of the case to the district  court for further proceedings. The appellants  shall recover their costs in this appeal.


48
Cudahy, Circuit Judge, concurring in part and  dissenting in part.


49
Although the majority  presents an insightful commentary on much of the  evidence, it seems to me in addressing strict  liability to have lost sight of the demands of  summary judgment. As we all know, summary  judgment requires that, after viewing the  evidence in the light most favorable to the  nonmoving party, there are no genuine issues of  material fact. See Celotex Corp. v. Catrett, 477  U.S. 317, 322 (1986). Further, summary judgment  is inappropriate "if the evidence is such that a  reasonable jury could return a verdict for the  nonmoving party," Anderson v. Liberty Lobby,  Inc., 477 U.S. 242, 248 (1986), and a number of  the conclusions that the majority accepts as  clear simply fail to reach a degree of certitude  such that no reasonable juror could conclude to  the contrary. In fact, the state of public  appreciation of various health risks from  cigarette smoking fifty or more years ago is so  indeterminate as to make summary judgment on the  subject extraordinarily difficult.


50
To succeed on their strict liability claim, the  plaintiffs would have to show that "the average  consumer [did not] fully appreciate the attendant  risk of injury" associated with smoking. Sumnicht  v. Toyota Motor Sales, 360 N.W.2d 2, 16 (Wis.  1984). Under this standard, the central question,  in its most general terms, is how detrimental to  long-term health did the average beginning smoker  fifty years ago view cigarette smoking?  Cigarettes were called "coffin nails" as far back  as I can remember, but that certainly does not  mean that they were firmly linked to cancer fifty  years ago. Cigarettes were thought to contribute  to various respiratory ailments, and they were  believed to be inconsistent with serious athletic  training,1 but a tie to lung cancer or heart  disease was not yet in the public mind. In fact,  the tobacco companies did their best to keep  these links out of the spotlight. In 1954, the  tobacco companies got together to publish their  notorious "Frank Statement" in which they stated  that "there is no proof that cigarette smoking is  one of the causes [of lung cancer]. . . . We  believe the products we make are not injurious to  health." T. Ex. 14145.2 In 1972, the Tobacco  Institute patted itself on the back for this  disinformation campaign in a memorandum, calling  it "brilliantly conceived and executed" and  "creating doubt about the health charge without  actually denying it." T. Ex. 20987. Thus, it  seems that the defendants tried to keep the full  risks of cancer from the public. At earlier  stages in this litigation, plaintiffs argued that  beginning smokers did not fully appreciate the  general health risks--knowing that smoking would  likely make a person short of breath or cough-  prone is far short of fully appreciating that  smoking could likely be fatal. But the majority  asserts that the issues of health-risk  appreciation have been narrowed to knowledge of  addictiveness. Based on the arguments before this  panel, I can accept this focus, but I do not  believe that limiting the inquiry to awareness of  addictiveness gets us closer to granting summary  judgment.


51
In the majority's view, the key part of the  strict liability analysis involves the question  whether beginning smokers (whether "teenagers" or  "adults"--I'll discuss this in a moment) regarded  cigarette smoking as either habit forming or  addictive--and whether these two attributes are  synonyms in the mind of the average beginning  smoker. The majority answers this question by  first noting the plaintiffs' concession that the  average American saw cigarettes as "habit  forming"--a quality seen by the plaintiffs as  quite distinguishable from "addictive." The  majority then makes this concession a lever for  summary judgment by describing the difference  between a "habit" and an "addiction" as  "esoteric." The majority also regards the  difference between "habit forming" and  "addictive" as "a semantical distinction beyond  the grasp of our Average Joe."


52
Possibly things are that simple, but it is also  entirely possible that the ordinary beginning  smoker associated "habit forming" with the yen  for bon-bons, pistachio nuts or cups of coffee  but thought of heroin and cocaine when  "addiction" was mentioned. The unbreakable  bondage to hard drugs was probably in most minds  of quite a different order than everyday habits--  at least a reasonable jury could so conclude. The  plaintiffs did provide some evidence that  beginning smokers were unaware that cigarettes  were addictive,3 see, e.g., Supp. App. at 53  (Affidavit of Dr. John H. Greist) ("I have found  that most [smokers] were unaware of the highly  addictive nature of cigarette smoke until after  they are addicted."); T. Ex. 13677 (Brown &  Williamson marketing memorandum from 1978) ("Very  few customers are aware of the effects of  nicotine, i.e., its addictive nature and that  nicotine is a poison."); T. Ex. 12408 (R.J.  Reynolds planning memorandum, entitled "The  Nature of the Tobacco Business and the Crucial  Role of Nicotine," written in 1972) ("[N]icotine  and secondary physical and manipulative  gratifications are unknown and/or largely  unexplained to the [beginning smoker]. He does  not start smoking to obtain undefined  physiological gratifications or reliefs, and  certainly he does not start smoking to satisfy a  non-existent craving for nicotine."), and it  seems to me that the state of mind of the  beginning smoker on this subject from 1935 to  1960 is not something that lends itself easily to  summary judgment--even if the evidence offered by  the plaintiffs is not overwhelmingly persuasive.


53
The majority points to no evidence that  suggests that this habit/addiction distinction  was "beyond the grasp of our Average Joe." In  making this assumption in favor of the  defendants, the majority has not only unfairly  demeaned the sagacity of the proverbial Joe but  has also ignored the mandate of summary judgment  that a court draw "all reasonable inferences in  favor of the nonmoving party." Anderson, 477 U.S.  at 255. Far from thinking it "esoteric," medical  professionals have understood the habit/addiction  distinction for years, and, until fairly  recently, they thought cigarettes were merely  "habit forming." Compare A. App. at 56 (1964  Surgeon General's Report) ("In medical and  scientific terminology [the smoking process]  should be labeled habituation to distinguish it  clearly from addiction, since the biological  effects of tobacco, like coffee and other  caffeine-containing beverages, betel-morsel  chewing and the like, are not comparable to those  produced by morphine, alcohol, barbiturates, and  other potent addicting drugs.") (emphasis in  original) with A. App. at 58 (1988 Surgeon  General's Report) ("Cigarettes . . . are  addicting. . . . The pharmacological and  behavioral processes that determine tobacco  addiction are similar to those that determine  addiction to drugs such as heroin and cocaine.").  Whether the Average Joe, beginning smoker  regarded cigarettes as being habit forming or  addictive or saw no distinction between these two  concepts fifty years ago is the kind of  comparative question that should be left to a  jury.


54
Whether the standard beginning smoker should be  taken to be a "teenager," as the plaintiffs  argue, or an "adult," as the majority determines,  also needs to be addressed.4 Here again the  requirements of summary judgment seem to be taken  lightly by the majority. The majority makes the  curious statement that "[m]ost smokers do begin  smoking in their teens, but the record does not  reflect this." In other words, it is common  knowledge that the typical beginning smoker is a  teenager, but somehow the record of this case  allows a grant of summary judgment based in part  on the thesis that such a smoker is older and  better-informed about the dangers of smoking and  the addictiveness of cigarettes. Thus, the path  towards summary judgment can be smoothed by  adopting factual assumptions somehow more  credible than common knowledge. This is very  implausible, and there is more than enough  evidence to support the hypothesis that beginning  smokers became addicted when they were still  children without any warning of the powerful  addiction to which they were becoming subject.  First of all, plaintiffs produced evidence that  the tobacco companies themselves targeted  teenagers as beginning smokers or were, at the  very least, aware that smokers begin in their  teens. See, e.g., T. Ex. 10299 (presentation to  Philip Morris Board of Directors in 1969) ("The  16 to 20-year old begins smoking for psychosocial  reasons."); Supp. App. at 68 (Summary of Expected  Expert Testimony of Richard W. Pollay) ("[T]he  tobacco industry has long displayed a strategic  interest in the youth market."). And although the  majority acknowledges that the plaintiffs'  evidence shows that "30 percent to 35 percent of  high school seniors in 1958 and 1966 smoked," it  dismisses this evidence as both "imprecise" and  "not pertinent to the question of what percentage  of smokers began smoking as teenagers." The  majority is correct that this is not direct  evidence of exactly how many smokers began  smoking as teenagers, but when one considers that  the plaintiffs also introduced evidence that only  6 percent of smokers quit each year, see T. Ex.  0054, attached to R.277: Ex. B (Jorenby et al.,  A Controlled Trial of Sustained-Release  Bupropion, a Nicotine Patch, or Both for Smoking  Cessation, New Eng. J. Med. 340:9 at 685-91 (May 4,  1999)), a jury could reasonably be left with the  conclusion that the vast majority of these high-school smokers kept smoking through their adult  lives. Therefore, I believe that the majority was  hasty, and wrong, to determine as a matter of law  that the "beginning smoker" must mean the "adult  beginning smoker."


55
For these reasons, I respectfully dissent from  the majority's analysis and conclusions  respecting strict liability.



Notes:


1
 But cigarette advertising certainly tried to  convey the opposite. For example, in 1952, the  American Tobacco Company ran the following  advertisement: "Frank Gifford in Action . . . The  young N.Y. Giant halfback was already a top star-  -and a Lucky Strike smoker." See Supp. App. at 61  (Summary of Expected Testimony of Richard W.  Pollay).


2
 Citations to the record come from three sources:  (1) appellants' appendix, cited as "A. App. at  [page];" (2) appellee's supplemental appendix,  cited as "Supp. App. at [page];" or (3) what  would have been plaintiffs' trial exhibits, cited  as "T. Ex. [number]." All trial exhibits cited  can be found in the record attached as part of  Exhibit A to R.277, unless otherwise specified.


3
 The plaintiffs also provided some evidence that  cigarette manufacturers were well-aware of the  addictive quality of cigarettes but failed to  share it with the public. See, e.g., T. Ex. 10299  (report to Philip Morris Board of Directors in  1969) ("[T]he ultimate explanation for the  perpetuated cigarette habit resided in the  pharmacological effect of smoke upon the body of  the smoker."); T. Ex. 259 (internal memorandum by  general counsel for Brown & Williamson, 1963)  ("[N]icotine is addictive. We are, then, in the  business of selling . . . an addictive drug.").


4
 This matters because the plaintiffs produced  evidence that the age of the smoker has some  bearing on smokers' perceptions. See, e.g., Supp.  App. at 69-70 (Summary of Expected Expert  Testimony of Richard W. Pollay) ("Cigarette  advertising affects teens more than adults,"  citing articles).


