# Cipollone v. Liggett Group, Inc.

> Court of Appeals for the Third Circuit · January 5, 1990 · 893 F.2d 541

URL: https://www.frixlaw.com/law-library/cases/8976514

## Case

- **Full name:** Antonio CIPOLLONE, individually and as of the Estate of Rose D. Cipollone v. LIGGETT GROUP, INC., a Delaware Corporation Philip Morris Incorporated, A Virginia Corporation, and Lorillard, Inc., A New York Corporation. Appeal of PHILIP MORRIS, INC. Appeal of LORILLARD, INC. Appeal of LIGGETT GROUP, INC
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** January 5, 1990
- **Citations:** 893 F.2d 541; 1990 WL 184
- **Precedential status:** Published
- **Opinion:** Concurrence by Gibbons
- **Judges:** Becker, Gibbons, Nygaard
- **Cited by:** 50 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8976514

## How later opinions describe it (automated extraction)

- stating that in the ease of “an oral affirmation of fact or promise made to the purchaser in person by the seller ... there is no question that the plaintiff has knowledge that the alleged warranty exists”
- holding intentional misrepresentation claims to be preempted by the Labeling Act

## Opinion text

GIBBONS, Chief Judge,
concurring:
I join in the opinion of the court. I write separately to observe that the enormous complications which arose during the trial of this complex case are largely due to the interlocutory ruling of this court in Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir.1986), cert. denied, 484 U.S. 976 , 108 S.Ct. 487 , 98 L.Ed.2d 485 (1987), to the effect that some state law claims were preempted by the Federal Cigarette Label and Advertising Act (Labeling Act), 15 U.S.C. § 1331 (1982 & Supp. II, 1984). That ruling was made in a case in which this court granted leave to appeal pursuant to 28 U.S.C. § 1292 (b) (1982). With the benefit of hindsight it seems clear to me that permission to appeal was improvidently granted. The case was legally and factually complicated, and our interlocutory ruling was made in the absence of a factual record which would have sharpened the issues and permitted a more informed application of the Labeling Act to the case. When a case involves liability, the application of which depends on what facts are found, it will rarely be true that an interlocutory appeal will “materially advance the ultimate termination of the litigation.” Certainly that was not the effect of the interlocutory appeal in this case. The requirement in 28 U.S.C. § 1292 (b) that the Court of Appeals give permission for a section 1292(b) appeal is intended to permit that court to avoid the kinds of indeterminate rulings which were made here and which do not materially advance anything but the lawyers’ time meter.
More fundamentally, I believe that our interlocutory ruling on the preemptive effect of the Labeling Act, to the extent that we reached a definitive ruling, was wrong as a matter of law, and should be overruled by the court in banc. Had the district court proceeded to trial before presenting us with an opportunity to confuse things by an indeterminate and erroneous ruling on preemption, this case would today be far closer to resolution. Instead there will now be a new trial, and a new appeal, and the Supreme Court may still tell the parties that our views on preemption are wrong, and they should try again. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174 , 108 S.Ct. 1704, 1712 , 100 L.Ed.2d 158 (1988); International Paper Co. v. Quellette, 479 U.S. 481 , 107 S.Ct. 805 , 93 L.Ed.2d 883 (1987); Silkwood v. Kerr-McGee Corp., 464 U.S. 238 , 104 S.Ct. 615 , 78 L.Ed.2d 443 (1984).
Thus, while I join in Part XII of the opinion of the court, I do so only because this panel is bound by what I believe to be an erroneous opinion of the Court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8976514. Public record. Not legal advice.