# Dewey v. R.J. Reynolds Tobacco Co. > Supreme Court of New Jersey · July 26, 1990 · 121 N.J. 69 URL: https://www.frixlaw.com/law-library/cases/9701137 ## Case - **Full name:** Claire E. Dewey, Individually and as Executrix of the Estate of Wilfred E. Dewey, Deceased, Plaintiff-Respondent and Cross-Appellant, v. R.J. Reynolds Tobacco Co., Defendant-Intervenor, and R.J. Reynolds Industries, Inc., American Brands, Inc., (Formerly the American Tobacco Company, Inc.), Defendants, and Brown & Williamson Tobacco Corporation, Defendant-Appellant and Cross-Respondent - **Court:** Supreme Court of New Jersey - **Decided:** July 26, 1990 - **Citations:** 121 N.J. 69; 577 A.2d 1239; 1990 N.J. LEXIS 98 - **Precedential status:** Published - **Opinion:** Concurring in part by Antell - **Judges:** Clifford, Antell - **Cited by:** 135 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9701137 ## How later opinions describe it (automated extraction) - holding that refusal to immunize cigarette makers from liability was “consistent with the general policy in New Jersey of liberally favoring jury resolution of defectiveness issues in product liability cases” - explaining that, under New Jersey law, manufacturers have a duty to warn “foreseeable users of all hidden or latent dangers that would arise out of a reasonably anticipated use of [their] product[s]” - noting that "[t]he interpretation of federal law by federal courts may be persuasive in a given case" even if those decisions "are not binding upon a state appellate court" - holding that "decisions of a lower federal court are no more binding on a state court than they are on a federal court not beneath it in the judicial hierarchy" - noting that the PLA left intact the “three theories under which a manufacturer or seller may be held strictly liable for harm caused by a product — defective manufacture, defective design, and defective warnings” ## Opinion text ANTELL, P.J.A.D. (temporarily assigned), concurring in part, dissenting in part. I respectfully dissent from the conclusion that the labeling requirement of the Federal Cigarette Labeling and Advertising *101 Act, 15 U.S.C.A. § 1333 (hereinafter “the Act”), does not preempt state court product liability actions based on claims of cigarette-caused injury to health that challenge the adequacy of manufacturers’ warnings. I concur with the determination that the “obvious danger”/“consumer expectations” standard contained in the New Jersey Product Liability Act, N.J.S.A. 2A:58C-3a(2), is not applicable to cases such as this which were pending at the time of the statute’s enactment. I also concur that the applicability of lower federal court decisions on the question of preemption must be made on principles of judicial comity and not stare decisis. The majority correctly states that in the interpretation of federal statutes principles of comity dictate that lower federal court decisions “be accorded due respect, particularly where they are in agreement, [citation omitted]. Judicial comity helps to ensure uniformity and hence discourages forum shopping.” From this posture the Court then undertakes its “independent analysis of the federal scheme,” an inquiry in which it rejects the well-reasoned, unanimous determinations of the five federal Circuit Courts of Appeal and the Supreme Court of Minnesota which all conclude that Congress has preempted the question of adequate warnings concerning the use of cigarettes. So much for comity. The Act’s twofold concern is to inform the public of the health hazards posed by cigarette smoking without exposing “commerce and the national economy” to the confounding effects of “diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.” 15 U.S.C.A. § 1331 . Accordingly, at the time relevant to this case the Act mandated that this be accomplished by requiring that the following statement conspicuously appear on each package of cigarettes: “Warning: The Surgeon General Has Determined That Cigarette Smoking is Dangerous to Your Health.” 15 U.S.C.A. § 1333 . 15 U.S.C.A. § 1334 is entitled “Preemption.” It provides *102 (a) No statement relating to smoking and health, other than the statement required by Section 1333 of this title, shall be required on any cigarette package. (b) 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 labeled in conformity with the provisions of this chapter. The structure of the majority’s holding merits close attention. It rests on the premise that the Act permits the states to compromise the federal goal of protecting commerce and the national economy in order to further inform the public about the hazards of smoking. Its rationale is that the protection of trade and commerce is a “secondary goal” because it “must be achieved ‘consistent with’ and not ‘to the detriment of’ the first and principal goal.” Therefore, allowing challenges to the adequacy of warnings in state court proceedings does not conflict with the federal statute since its “principal goal” of adequately warning the public will be thereby better served. As to the “secondary goal” of immunizing the cigarette industry from state regulation, the Court reasons that the impact of adverse jury verdicts based upon inadequate warnings constitutes only incidental regulatory pressure. Because “incidental regulatory pressure is acceptable, whereas direct regulatory authority [such as an injunction or declaratory relief] is not,” the Act’s prohibition against further regulation is not breached by challenges to the adequacy of warnings in state court product liability actions. The cigarette manufacturer, states the majority, is free to decide how it shall respond to such liability verdicts, that is, whether to modify the warnings or simply ignore the import of the verdicts. 1 The other justification given for diminishing the protection Congress accorded commerce and the national economy is that *103 it allows for the socially desirable objective of placing the risk of loss upon the one best able to bear it. It can be seen that the Court’s holding is vitally dependent upon its assumptions that under the Act one goal is subordinate to the other and that state courts may improve upon the warning statements required by Congress at the expense of commerce and the national economy. This is not what the Act says. In limiting its attention to the statutory condition expressed in 15 U.S.C.A. § 1331 that protection of commerce and the national economy be “consistent with” the policy of adequate warnings, the Court overlooks the larger context of the declared congressional policy. 15 U.S.C.A. § 1331 states that policy “and the purpose of this chapter” to be the establishment of “a comprehensive Federal program to deal with cigarette labeling ... whereby” the public may be adequately informed and commerce may be protected. The word “whereby,” relates to “Federal program.” Thus, the Act itself creates the very “program ... whereby” commerce is given protection “to the maximum extent consistent with” warning the public. It not only sets forth the dual policy in the abstract, but also the bright-line warning language which forms the literal mechanics of its implementation. The preemption declaration of 15 U.S.C.A. § 1334 tells us that Congress wrote the language of the labeling requirement into 15 U.S.C.A. § 1333 to express its exclusive judgment as to how the competing values should be balanced. The Act leaves no doubt as to what warning should be given and how great an intrusion must be tolerated by commerce. Implicit in this is the conclusion that any attempted modification of that balance “under State law” would be in actual conflict with federal law. This is precisely the point of the federal circuit court decisions and the decision of the Supreme Court of Minnesota in Forster v. R.J. Reynolds Tobacco Co., 437 N. W.2d 655 (1989), in applying the Act’s preemption provision. *104 In Palmer v. Liggett Group, Inc., 825 F.2d 620, 626 (1st Cir.1987), the Court noted that the Cigarette Labeling Act was passed after “a hard-fought, bitterly partisan battle in striking the compromise that became the Act. It is inconceivable that Congress intended to have that carefully wrought balance of national interests superseded by the views of a single state, indeed, perhaps of a single jury in a single state. It was there held “that a suit for damages on a common law theory of inadequate warning — if the warning given complies with the Act — disrupts excessively the balance of purpose set by Congress, and is thus preempted.” Ibid. As the Supreme Court of Minnesota reasoned in Forster, supra, The best indication of congressional intent, we think, is what Congress said in the statute’. Congress said it wanted to avoid diverse, nonuniform, and confusing regulations. This statement of intent is at odds with plaintiffs’ claim that Congress contemplated a diversity of conflicting state regulations coexisting with the federal regulatory scheme, or that Congress intended its warning to be a minimal warning to which a state could add further requirements. [Forster, 437 N.W.2d at 660 ] [Footnote omitted] See also Cipollone v. Liggett Group, Inc., 789 F.2d 181, 186 (3d Cir.1986) (“Even more important, we find the language of the statute itself a sufficiently clear expression of congressional intent without resort to the Act’s legislative history.”) The majority states that the Act’s “secondary” goal of protecting commerce “focuses on the need for uniform labeling and advertising regulations as a way of protecting commerce and the national economy, but does not go so far as to restrict the rights of injured consumers in achieving that goal.” The emphasis on “regulations” is presumably used to suggest that the preemption provision is addressed solely to formal regulations promulgated by state administrative or legislative authority. 2 I disagree that Congress intended to shelter cigarette *105 manufacturers only from further governmental regulation but yet leave them answerable to multifarious claims of inadequate warnings limited only by the resourcefulness of counsel and expert witnesses. Such claims would expose the cigarette industry to more “diverse, nonuniform, and confusing cigarette labeling and advertising regulations” than could ever be expected from state governmental authority. Moreover, claims of inadequate warning asserted in state court liability actions are pernicious in a sense not shared by governmental regulations. They are asserted after the fact, when compliance by the manufacturer is no longer possible to avoid the consequences of a particular suit. Regulations promulgated by state authority, once complied with, impose no duty on a manufacturer to respond in compensatory or punitive damages. It is obvious that the congressional intent could not have been limited to protecting the industry from state regulatory action while leaving it open to the indirect regulation implicit in product liability suits based on claims of inadequate warning. Both have the proscribed regulatory effect. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 246-247 , 79 S.Ct. 773, 780 , 3 L.Ed.2d 775, 784 , (1959). Although the majority relies upon Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 186 , 108 S.Ct. 1704, 1712 , 100 L.Ed.2d 158, 171 (1988) for the proposition that “Congress may reasonably determine that incidental regulatory pressure is acceptable, whereas direct regulatory authority is not,” that decision more pertinently demonstrates that when Congress chooses to allow for “incidental regulatory pressure” it knows how to do so. It did not do so in this statute. As the Court said in Cipollone v. Liggett Group, Inc., 789 F.2d at 187 , Applying this principle [that State law damage claims have a regulatory effect], we conclude that claims relating to smoking and health that result in liability *106 for noncompliance with warning, advertisement, and promotion obligations other than those prescribed in the Act have the effect of tipping the Act’s balance of purposes and therefore actually conflict with the Act. See also Roysdon v. R.J. Reynolds Tobacco Co., 849 F. 2d 230, 234 (6th Cir.1988). Furthermore, I can make no sense of a federal statute which would preclude state legislatures from requiring further minimal warnings, but allow private litigants to run riot with claims of inadequate warnings — claims which might never have come into existence if local lawmakers had been permitted to act in the first place. Had Congress intended to permit litigants to assert these claims on a case-by-case basis there would be no reason to prohibit state legislatures from requiring warnings, in addition to those specified by the Act, to protect consumers from the very injury for which they later sue. Cases cited by the majority lend no support to its judgment that the Cigarette Labeling Act does not preempt product liability suits based on inadequate warning. In Silkwood v. Kerr-McGee Corp., 464 U.S. 238 , 104 S.Ct. 615 , 78 L.Ed.2d 443 (1984), the Supreme Court decided in a five-four decision that a claim for punitive damages in an action for injuries resulting from the escape of nuclear radiation was not preempted by the Federal Atomic Energy Act of 1954, 42 U.S.C.A. § 2011 et seq. The case is distinguishable. First, unlike the Act herein, the Atomic Energy Act contained no preemption provision whatever. Palmer v. Liggett Group, Inc., 825 F.2d at 628 . Further, the federal legislation reserved significant regulatory authority to the State. Ibid. Also, the defendant there was in violation of the federal statute. Here, it is in compliance. In addition, whereas Silkwood was a hapless victim of the nuclear accident, here the decedent voluntarily exposed himself to the risks of smoking in the face of a federally prescribed warning that this would endanger his health. Finally, in Silkwood the Supreme Court specifically found a clear congressional intent that state court tort remedies should remain available to those injured by nuclear incidents. Having *107 done so, it naturally concluded that since punitive damages “have long been a part of traditional state tort law,” Silkwood 464 U.S. at 255 , 104 S.Ct. at 625 , 78 L.Ed.2d at 457 , they were not preempted by federal law. It should be noted also that unlike jury verdicts which determine the adequacy of labeled warnings and therefore carry a regulatory impact, an award of punitive damages, which addresses a tortfeasor’s state of mind and is given consideration only after liability has been determined, has no regulatory effect. In one case a standard is promulgated with which a defendant must comply. In the other, no such standard of performance is involved. While it is true, as the majority states, that MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131 , 475 N.E.2d 65 (1985), cert. den. 474 U.S. 920 , 106 S.Ct. 250 , 88 L.Ed.2d 258 (1985), decided that compliance with FDA labels on oral contraceptives does not shield manufacturers from liability, it appears that the label requirements in that case merely took the form of a regulation promulgated by the FDA Commissioner who “specifically noted that the boundaries of civil tort liability for failure to warn are controlled by applicable State law.” Id. 475 N.E.2d at 70 . In Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C.Cir.1984), cert. den. 469 U.S. 1062 , 105 S.Ct. 545 , 83 L.Ed.2d 432 (1984), the Court found that plaintiff’s claim of inadequate warning had not been preempted by the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.A. § 136 -136y (“FI-FRA”), containing labeling requirements complied with by defendant manufacturer. The case differs from this in important respects. There, the federal act “clearly allow[ed] the states to impose more stringent constraints on the use of EPA-approved pesticides than those imposed by the EPA.” Ferebee, 736 F.2d at 1541 . (emphasis in original). Moreover, under that statute each manufacturer was required to submit to the EPA a warning label for each of the approximately forty thousand different herbicides and pesticide formulations covered by the statute for EPA approval. Thus, two manufacturers of the *108 same regulated product could use different labels so long as they were approved by the EPA. See Palmer v. Liggett Group, Inc., 825 F.2d at 628-629, n. 13 . The requirement for uniformity in labeling was not a subject of congressional concern and Congress had not taken the trouble, as it did here, to specify the precise warning required. Finally, in Burch v. Amsterdam Corp., 366 A.2d 1079 (D.C.Ct. of App.1976), plaintiff was injured in a flash fire when vapors from defendant’s product were ignited by a kitchen stove pilot light. The label of the product was appropriately marked with warnings prescribed under the Federal Hazardous Substances Act, 15 U.S.C.A. § 1261 (p)(1) (FHSA), which gave notice of its extreme inflammability. Although the Court held that the FHSA did not preempt a state court suit based on failure to warn, unlike the case here there was nothing in that statute from which federal preemption could be implied. The Court made no preemption analysis and stated that it could find “nothing in the statute itself or the legislative history which implies that Congress intended to limit a seller’s common law ‘duty to warn.’ ” 366 A.2d at 1085 . In my opinion, by allowing challenges to the adequacy of warnings on cigarette labels the Court is licensing a form of legal sanction forbidden by Congress. The federal legislation gives effect to the coordinate goals of protecting the public with minimal consequences to the cigarette industry. It does this by requiring that consumers be informed that cigarette smoking is “dangerous to your health,” reflecting a judgment that this was all an ordinary consumer need know to appreciate the risk of smoking and drawing the line at which personal responsibility begins. Implicit in this choice of words is a recognition that the extent to which the warning can be particularized is infinite and that there are few cases of which it can be said that the manufacturer adequately covered the myriad risk possibilities about which a consumer could claim a warning should have been, but was not, given. Although Congress intended to put the matter to rest, the decision of the majority *109 allows for the very chaos which the Act attempts to resolve. Because this conflict breaches settled principles of federal preemption I would affirm the decision of the Appellate Division as to this issue. 3 For affirmance in part; for reversal in part; for remandment — Justices CLIFFORD, HANDLER, O’HERN and STEIN, and Judges KING and COLEMAN — 6. Concurring in part; dissenting in part — Judge ANTELL — 1. A choice "akin to the free choice of coming up for air after being under water.” Palmer v. Liggett Group Inc., 825 F.2d 620, 627 (1st Cir.1987). The argument was there described as having been "disingenuously” maintained. Ibid. Although the word "regulations" is used in the Act’s Declaration of Policy, 15 U.S.C.A. § 1331 , the prohibition contained in 15 U.S.C.A. § 1334 is actually more broadly stated to extend to any requirements and statements relating to smoking and health "other than the statement required by section 1333 of this title." It should be noted that the preemption provision of § 1334(b) prohibits *105 any further requirement "under State law.” It did not limit itself to statutory law and is plainly intended to encompass judicial determinations. It is not amiss to note that offensive collateral estoppel has been applied in product liability cases to preclude a producer from denying the inadequacy of a warning found inadequate in a previous case in which the producer defended the claim against a different plaintiff. Ezagui v. Don Chemical Corp., 598 F.2d 727 (2d Cir.1979); Fraley v. American Cyanimid Co., 570 F.Supp. 497 (D.Colo.1983). Although in Kortenhaus v. Eli Lilly & Co., 228 N.J.Super. 162 , 549 A.2d 437 (1982), the Appellate Division concluded that collateral estoppel would be unfair under the facts presented, its potential applicability in a failure to warn case was recognized. For general contours of the doctrine, see Restatement, Judgments 2d § 29 at 291 (1982). Its conceivable implication to a cigarette producer is that once its warning is found inadequate, it could be barred from re-litigating the issue in later suits brought by other consumers. Thus, dissolution of the “maximum" protection to which it is entitled would be complete, and the purpose of the federal program, as to that producer, would be nullified. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9701137. Public record. Not legal advice.