                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-26-2004

Jeter v. Brown Williamson
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4839




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"Jeter v. Brown Williamson" (2004). 2004 Decisions. Paper 196.
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                                               NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEAL
                            FOR THE THIRD CIRCUIT


                                    No. 03-4839


                IVAN JETER, ADMINISTRATOR OF THE ESTATE
                      OF RONALD F. SMITH, DECEASED,

                                               Appellant

                                          v.

            BROWN AND WILLIAMSON TOBACCO CORPORATION;
                     LORILLARD, INCORPORATED


                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                            (D.C. Civil No. 02-cv-00789)
                       District Judge: Hon. Arthur J. Schwab


                              Argued October 7, 2004

       BEFORE: SLOVITER, VAN ANTWERPEN and COW EN, Circuit Judges

                              (Filed October 26, 2004)




Kenneth W. Behrend, Esq. (Argued)
Behrend & Ernsberger
306 Fourth Avenue
Union National Bank Building, Suite 300
Pittsburgh, PA 15222

Counsel for Appellant
Frederick M. Erny, Esq.
Melissa L. Korfhage, Esq.
Dinsmore & Shohl
255 East Fifth Street
1900 Chemed Center
Cincinatti, OH 45202

Peter S. Greenberg, Esq (Argued)
Jennifer A. Diamantis, Esq.
Schnader, Harrison, Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103

Counsel for Appellee




                                         OPINION


COWEN, Circuit Judge.

       Ronald F. Smith brought this action against Brown & Williamson Tobacco

Corporation (“Brown & Williamson”), alleging that Brown & W illiamson had committed

various common-law torts in inducing him to smoke their “Kool” brand of cigarettes. He

alleged that Brown & Williamson was responsible for his contracting, and ultimately

dying from, lung cancer. After Smith died, Ivan Jeter continued this action in his capacity

as administrator of Smith’s estate. In a December 1, 2003 order, the District Court

granted summary judgment in favor of Brown & Williamson, dismissing the complaint in

its entirety. Jeter now appeals from that order.

       We will affirm on somewhat different grounds than given by the District Court.



                                             2
                                             I.

       Smith began smoking cigarettes in approximately 1961, when he was eleven or

twelve years old. In deposition testimony taken before his death, Smith testified that he

began smoking because his group of friends started smoking. He testified both of his

parents smoked, and that “everybody on tv did it.” (AR at 99a.) He testified that he

smoked Kools because that was the brand that his parents smoked, and he had seen

advertisements for them. When asked specifically about the advertisements he had seen,

he responded “some of them was cowboys, some of them entertainment, and that was

many years ago. I don’t know whether I can clearly recall that. It was back awhile.” (Id.

at 101a.) When questioned further, he acknowledged that he remembered advertisements

involving sports figures.

       Smith testified that he was aware that smoking was bad for his health, and that he

tried to quit several times. He testified that his parents told him that smoking was bad for

him. He initially hid the fact that he smoked from his parents, because they would have

punished him if they caught him smoking. He also testified that his health class in high

school taught him about the “bad effects of smoking.” (Id. at 112a.) He recalled the

Surgeon General’s report that came out in 1964, stating that smoking could be hazardous

to his health, and recalled the warnings that began to appear on cigarette packages. He

stated, however, “I didn’t do nothing about it. It didn’t make no difference to me, I

smoked them regardless of [the warning].” (Id. at 113a.)



                                             3
       Smith was diagnosed with lung cancer on September 21, 2000. He did not quit

smoking, even after his diagnosis. He died in February 2003.

                                             II.

       We exercise plenary review over a District Court’s decision to grant summary

judgment. Kemmere v. ICI Ams., 70 F.3d 281, 286 (3d Cir. 1995). Summary judgment

is appropriate only when “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). As preemption is primarily a question of law, we likewise

exercise plenary review over the District Court’s preemption analysis. Travitz v.

Northeast Dep’t. IGLWU Health & Welfare Fund, 13 F.3d 704, 708 (3d Cir. 1994).

       Jeter argues on appeal that the District Court erred in finding that the Federal

Cigarette Labeling and Advertising Act (“the Labeling Act”), 15 U.S.C. §§ 1331-1340

preempts his claims for negligence and strict liability based on failure to warn after 1969.1

He argues that the Supreme Court’s decision in Cipollone v. Liggett Group, Inc., 505 U.S.

504 (1992), does not dictate a finding that the Labeling Act preempts his claim for failure

to warn after 1969. Jeter did not raise this argument before the District Court, however.

On the contrary, he specifically argued before the District Court that his claims were not

based on a post-1969 failure to warn. (AR at 203a-05a.) As such, barring exceptional

   1
    Jeter does not challenge the District Court’s decision to dismiss his claims for
defective design.

                                              4
circumstances not present here, he has waived this argument. See Brown v. Philip

Morris, Inc., 250 F.3d 789, 799 (3d Cir. 2001).

       Jeter next challenges the District Court’s dismissal of his pre-1969 failure to warn

claims, arguing that the 1965 version of the Labeling Act did not pre-empt state common

law claims for damages. In Cipollone, the Supreme Court held that the 1969 version of

the Labeling Act preempted certain state-law claims for damages, including claims for

failure to warn. Cipollone, 505 U.S. at 524-25. The Supreme Court further held,

however, that the 1965 version “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.

       The District Court did not rely on the express language of the Labeling Act in

reaching its decision. Instead, it employed the principles of implied preemption. When

Congress has explicitly defined the extent to which its enactments preempt state law,

however, there is no need to address the principles of implied preemption. See English v.

General Elec. Co., 496 U.S. 72, 78-79 (1990); Horn v. Thoratec Corp., 376 F.3d 163, 166

(3d Cir. 2004). Thus, the District Court erred in holding that the pre-1969 claims were

preempted. Nonetheless, we will affirm the District Court’s decision on different

grounds. Erie Telecomm., Inc. v. City of Erie, 853 F.2d 1084, 1089 n.10 (3d Cir 1988)

(“An appellate court may affirm a correct decision by a lower court on grounds different

than those used by the lower court.”).



                                             5
       Under Pennsylvania law, a plaintiff in a failure to warn case must establish that 1)

a warning of a particular product was either lacking or inadequate, and 2) the user of the

product would have avoided the risk had he been advised of it by the seller. Phillips v. A-

Best Prods. Co., 665 A.2d 1167, 1171 (Pa. 1995). When the dangers of a product are or

should be known to the user, liability cannot be imposed on the manufacturer for failure

to warn of the danger. Sherk v. Daisy-Heddon, 450 A.2d 615, 618 (Pa. 1982). In

addition, “[t]o reach a jury on a failure to warn theory of liability, the evidence must be

such as to support a reasonable inference, rather than a guess, that the existence of an

adequate warning might have prevented the injury.” Pavlik v. Lane Ltd./Tobacco Exp.

Int’l., 135 F.3d 876, 881 (3d Cir. 1998).

       Smith testified that his parents told him that smoking was bad for him, that he

learned about the bad health effects of smoking in school, that he was aware of the

Surgeon General’s report that smoking was hazardous, and that he had heard cigarettes

referred to as “cancer sticks” when he was growing up. (AR at 111a-14a.) Smith even

admitted that he had always known that smoking was bad for him, but that he started

smoking despite that knowledge, because his friends were doing it. (AR at 114a.) He

also testified that he paid no attention to the warnings when they did appear on cigarette

packages, because he enjoyed smoking. (Id. at 113a.) In other words, Smith was aware

of the risks associated with smoking, but ignored warnings from his parents, teachers, and

the Surgeon General that cigarettes were hazardous to his health, because he enjoyed



                                              6
smoking and his friends were doing it. A finding that an additional warning from Brown

& Williamson would have deterred Smith from smoking would be nothing more than a

guess that has no support in his actual behavior. As a matter of law, therefore, Brown &

Williamson cannot be held liable for failure to warn Smith of dangers of smoking.

       Jeter argues that the District Court erred in granting summary judgment as to his

remaining claims, because there remains a disputed issue of material fact. He asserts that

whether Smith saw and relied on any of Brown & W illiamson’s advertisements is in

dispute.

       To sustain a claim for negligent or intentional misrepresentation, a plaintiff must

establish that he justifiably relied on an alleged misrepresentation. Bortz v. Noon, 729

A.2d 555, 560-62 (Pa. 1999). Similarly, a plaintiff in a breach of warranty claim must

establish that an actual affirmation of fact or a promise formed the basis of the bargain

between the seller and the plaintiff. Pa. C.S. § 2313; Goodman v. PPG Indus., 849 A.2d

1239, 1243 (Pa. Super. Ct. 2004). It follows that, in order for an advertisement to form

the basis of the bargain, a plaintiff must have seen and relied upon the advertisement.

       In his deposition testimony, Smith did not recall the specifics of any tobacco

advertisements, and did not describe any as being for Kools. Jeter now introduces

evidence of the advertisements Brown & W illiamson ran at the time Smith began

smoking, and argues that the pervasiveness of the advertisements creates an issue of

material fact as to whether Smith saw these advertisements and relied upon them.



                                             7
Although Smith did testify that none of the advertisements he saw indicated that smoking

might be harmful, he did not specifically point to the Brown & Williamson ads when he

stated “It was the thing; everybody would smoke. Your health, it was the right thing to

do.” (AR at 219a). He testified that he did not remember any specifics of any of the

advertisements, because it was so long ago. (Id. at 101a.) In addition, he testified that he

chose to smoke Kools because that was what his parents and friends smoked. Finally, he

testified that the only direct information about health he remembers receiving from

Brown & Williamson is the warning on the cigarette packages.

       The mere pervasiveness of the advertisements is not sufficient to counter Smith’s

actual testimony. See Weinberg v. Sun Co., Inc., 77 A.2d 442, 446 (Pa. 2001) (under

traditional common law elements, reliance on advertisements can only be established

when the plaintiff actually saw or heard and believed the allegedly false advertisement).

Jeter has presented no evidence that Smith actually saw or relied on any of Brown &

Williamson’s advertisements or other representations in deciding to smoke cigarettes in

general and Kools in particular. Because such reliance is an essential element of Jeter’s

claims for false representation, breach of express warranty, negligent misrepresentation,

and intentional misrepresentation, the District Court did not err in dismissing counts III,

VI, VII, and VIII of Jeter’s complaint.

       The District Court also properly dismissed Jeter’s fraudulent concealment claim.

A party is liable for fraudulent concealment when he “by concealment or other action



                                              8
intentionally prevents the other from acquiring material information.” Restatement

(Second) of Torts § 550. Under Pennsylvania law, a party is liable for fraudulent

concealment only when it had a duty to speak in the first place. Duquesne Light Co. v.

Westinghouse Elec. Corp., 66 F.3d 604, 611-612 (3d Cir. 1995). Such duty generally

arises only when there is a special relationship between the parties. Id. Pennsylvania

courts have found, however, that liability may be imposed for failure to speak when a

supplier of chattels knows those chattels are be dangerous in their intended use and fails

to warn the user of the dangers.

       Several cases hold that no fiduciary or confidential relationship exists between the

manufacturer of cigarettes and consumers of cigarettes, which gives rise to a duty to

speak or disclose information. See, e.g., Waterhouse v. R.J. Reynolds Tobacco Co., 270

F.Supp.2d 678, 685 (D.Md. 2003) (dismissing fraudulent concealment claim where

plaintiff and cigarette manufacturer had no special relationship beyond that of purchaser

and vendor); White v. R.J. Reynolds Tobacco Co., 109 F.Supp.2d 424, 431 (D.Md. 2000)

(stating that “the arms-length relationship between defendant cigarette manufacturers and

. . . the consumer of their products, does not create a special relationship that gives rise to

a duty to speak”). Because Jeter failed to establish that Brown & Williamson had a duty

to speak, his fraudulent concealment claim must fail. Moreover, several cases applying a

fraudulent concealment standard virtually identical to the applicable standard in this case

hold that no fiduciary or confidential relationship exists.



                                               9
       Finally, because Jeter failed to assert a viable claim for any of the intentional torts

in his complaint, the claim for civil conspiracy must also fail. See Fife v. Great Atlantic

& Pacific Tea Co., 52 A.2d 24, 29 (Pa. 1947). As such, the District Court properly

granted summary judgment in Brown & Williamson’s favor on all claims.2

                                             III.

       For the foregoing reasons, the judgment of the District Court entered on December

2, 2003, will be affirmed.




   2
    The issue of causation was briefed and argued by all parties. While causation is a
crucial part of any products liability action, we have found it unnecessary to address the
issue in this opinion since we deem the grounds set forth above are adequate to dispose of
the matter before us.

                                              10
