holding plaintiff’s complaint that cigarettes produced by defendant tobacco company contained pesticide residue which caused plaintiff’s illness could allege a manufacturing-defect claim; although all cigarettes potentially contain pesticide residue, it is not an ingredient tobacco company intended to incorporate into its cigarettes
How later courts described this case
- holding plaintiff’s complaint that cigarettes produced by defendant tobacco company contained pesticide residue which caused plaintiff’s illness could allege a manufacturing-defect claim; although all cigarettes potentially contain pesticide residue, it is not an ingredient tobacco company intended to incorporate into its cigarettes
- holding that under Texas law, a manufacturing defect occurs "when a finished product deviates, in terms of its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous"
- determining posN1969 common law strict liability, negligence and fraudulent concealment claims, as well as statutory deceptive trade practices claim, preempted “because they ... are premised on [defendant’s] failure to disclose information regarding the dangers of cigarettes”
- holding that pesticide found in cigarettes is a deviation from the planned output type of defect because no cigarette manufacturer would intend to include pesticides in its cigarettes
Written by the judges who cited it.
The opinion
ENOCH, Justice,
joined by HECHT, Justice,
concurring and dissenting.
Wiley Grinnell, Jr. died of lung cancer, a risk that this Court holds as a matter of law he knowingly and willingly undertook when he began smoking American’s cigarettes in 1952. Despite this conclusion, and despite the fact that Grinnell knowingly and willingly began smoking three packs a day, the Court holds that American Tobacco may be liable for Grinnell’s death because some thirty-three years later Grinnell did in fact develop the disease the risk of which he freely accepted at age nineteen.
The Court hinges its decision today on the premise that while the “general health risks” of smoking were commonly known in 1952, the specific risk of addiction was not commonly known when Grinnell started smoking. However, the Court fails to explain what it means by the phrase “general health risks,” giving no guidance to the parties or to the public about which cigarette-related dangers may have given rise to a duty to warn in 1952 and which did not. This shortcoming illustrates the fundamental problem with the Court’s analysis — the “general health risk” of cigarettes, found by the Court to be commonly known in 1952, is that when used as intended, they can kill you. Further, in reaching its decision, the Court misreads at least two of this Court’s recent opinions and misapplies the common knowledge doctrine. Finally, the Court mischaraeterizes the Grin-nells’ pesticide claim as a manufacturing defect claim, when it is actually a design defect claim for which summary judgment for American was appropriate. I would hold that summary judgment was proper on all of the Grinnells’ claims.
I
While I agree with the Court’s conclusion that the “general health risks” of cigarettes have been commonly known for some time, I disagree with several aspects of the Court’s reasoning.
At the outset, the Court retreats from our unanimous opinion in Joseph E. Seagram & Sons v. McGuire, 814 S.W.2d 385 (Tex.1991). The Court limits McGuire by defining the common knowledge doctrine as an “extraordinary defense that applies only in limited circumstances.” 951 S.W.2d at 427. We did not find the common knowledge doctrine so “extraordinary” in Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 383 (Tex.1995), in which we held that a heavy equipment manufacturer did not have a duty to warn of the dangers of operating a front-end loader without a rollover protective structure. Nor did we suggest that the defense has only limited applicability. Rather, we held that the obviousness of a risk is pertinent to any inquiry about a manufacturer’s or distributor’s duty to warn of that risk. Shears, 911 S.W.2d at 382 . I fail to see how the common knowledge doctrine is any more extraordinary or of more limited applicability than any other defense to liability. Accordingly, I would not restrict it as the Court does.
*443 The Court suggests that McGuire is of limited applicability because it involved alcohol as the product. The Court finds McGuire inapposite because the distiller did not dispute the health risks of prolonged alcohol consumption. The Court’s own logic falters because it acknowledges, as it must, that common knowledge does not depend on the parties’ subjective knowledge or beliefs, but is an “objective determination.” 951 S.W.2d at 428. Moreover, the Court ultimately concludes that like alcohol, the health risks of smoking cigarettes were so well known in the community as to be beyond dispute when Grinnell began smoking in 1952. In reality, there is little basis for distinguishing between alcohol and tobacco products in this context. See Restatement (Second) of Torts, § 402A cmt. j (1965); see also Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th Cir.1996) (following McGuire , the defendant had no duty to warn of the dangers of smoking); Roysdon v. R.J. Reynolds Tobacco Co., 623 F.Supp. 1189, 1191 (E.D.Tenn.1985) (following state supreme court’s judicial notice of the public understanding of the dangers inherent in alcohol, trial court found that knowledge of the harm-fid health effects of cigarette smoking is part of the common knowledge of the community), aff'd, 849 F.2d 230 (6th Cir.1988); Paugh v. R.J. Reynolds Tobacco Co., 834 F.Supp. 228, 231 (N.D.Ohio 1993) (same). I would not give our unanimous opinion in McGuire such short shrift.
Finally, the Court rather paradoxically paints with too broad a stroke by giving, at best, vague definition to the “general health risks” that are so commonly known in the community as to be beyond dispute. What we are able to learn from the Court about these “general health risks” is that they include lung cancer, but not addiction. What about other smoking-related health risks? Other cancers? Lip cancer? Throat cancer? Stomach cancer? Emphysema? Bronchitis? Coronary heart disease? Low birth weight and infant mortality? What about the risk of stroke in women taking oral contraceptives? Are these risks within those “general health risks” of smoking that the Court today holds are so commonly known in the community as to be beyond dispute? Since King James I of England first condemned smoking as “a custom loathsome to the eye, hateful to the nose, harmful to the brain, [and] dangerous to the lungs,” we have known that smoking cigarettes is bad for us. James I, Counter-blaste to Tobacco (London 1604), reprinted by Da Capo Press (New York 1969). The Court begins a descent down a very slippery slope by attempting to parse out addiction as a separate and specific smoking-related health risk without giving definition to those risks it deems are within the common knowledge.
Moreover, the Court’s determination to single out one particular risk conflicts with our analysis in Shears, 911 S.W.2d at 381 . There the alleged failure to warn was of the risks of operating a front-end loader without a rollover protection structure. The plaintiff’s injury occurred not as a result of a rollover, but from a rear-end collision. Id. We did not parse out and examine the particular risk of injury from a rear-end collision. Rather, we examined that risk as part of the more general safety risk of operating the front-end loader from an exposed and unprotected driver’s seat. Under the Court’s particularized-risk approach, the result in Shears would be different today.
Given the Court’s decision today, the common knowledge doctrine retains little if any relevance in our products liability jurisprudence because the specific trumps the general. We can now say “I knew smoking was bad for me and could even kill me, but I didn’t know I could become addicted.” 1 *444 There are limits to what the law can and should require in warnings. The Court’s retreat from McGuire may sap the common knowledge doctrine of any vitality it has in the law.
II
I also dissent from the Court’s holding that the Grinnells’ claim regarding the presence of pesticides is a “manufacturing defect” claim that must be remanded for trial. The Court states that a manufacturing defect claim is predicated on “a deviation from planned output.” 951 S.W.2d at 434 (citing Ford Motor Co. v. Pool, 688 S.W.2d 879, 881 (Tex.App.—Texarkana 1985), aff'd in part and rev’d in part on other grounds, 715 S.W.2d 629 (Tex.1986)). Curiously, the Court then concludes that the pesticide claim is a manufacturing defect claim, not a design defect claim, even though “[a]ccording to the undisputed facts, pesticide residue is incidentally, yet normally, found in tobacco after it is fumigated.” 951 S.W.2d at 434. I am not persuaded that the pesticide claim is in fact a manufacturing defect claim.
The Court cites a negligence case for the proposition that the entire tobacco industry can be guilty of the same “manufacturing defect” if pesticides are present “in many if not all cigarettes” and if, presumably, no one “intend[ed] to incorporate” them into the product. Id. at 434 (citing T.J. Hooper, 60 F.2d 737, 740 (2nd Cir.), cert. denied, 287 U.S. 662 , 53 S.Ct. 220 , 77 L.Ed. 571 (1932)). Even if the Court is correct in presuming that American did not “intend to incorporate” pesticides into its cigarettes, this does not convert the pesticide claim into a manufacturing defect claim. The summary judgment proof demonstrated that the cigarettes did not deviate from planned output. Accordingly, the pesticide claim is a design defect claim. For the reasons articulated by the Court in part I.A.2 of its opinion, I would hold that summary judgment was proper for all design defect claims, including those related to the presence of pesticides in American’s products.
III
The Court announces today that summary judgment in favor of American was proper “to the extent” that the claims “relate to the general health risks associated with smoking” but not “to the extent” that the claims are “based on the allegation that the addictive nature of cigarettes rendered American’s products unreasonably dangerous.” 951 S.W.2d at 432. This is a distinction without content. I would adhere to our holding in McGuire and find that all of the Grinnells’ failure-to-warn related claims are barred by the common knowledge doctrine. Moreover, I would hold that summary judgment was proper on all of the Grinnells’ design defect claims, including those predicated on the presence of pesticides.
. The Court cites Crocker v. Winthrop Lab., Div. of Sterling Drug, Inc., 514 S.W.2d 429 (Tex.1974), for the proposition that we have “recognized the seriousness of addiction and the need for manufacturers to warn of this danger in the context of prescription drugs.” 951 S.W.2d at 429. Crocker is inapposite. First, it involved a prescription drug (talwin) prescribed by a doctor for relief of pain brought on by amputation of part of the patient’s thumb. 514 S.W.2d at 430 . Wiley Grinnell, Jr., on the other hand, did not use cigarettes for health reasons; rather, he knowingly and willingly elected to smoke cigarettes despite the commonly known "general health risks.” Second, we stated in Crocker that "the record ... shows that talwin is a good and useful drug which has no adverse side effects upon the great majority of people who use it but *444 that it did harm Glenn Crocker because he was one of those people, perhaps not appreciable in number, who was susceptible to addiction or dependency upon the drug." Id. at 432 . The Court does not find here that cigarettes are "good and useful.” Indeed, cigarettes have long been commonly known to be harmful when used in the manner they are intended to be used.