Amicus Curiae Brief — Cipollone v. Liggett Group, Inc.

| Supreme Court, U.S,

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No. 90-1038

MEME OF THE CLERK

IN THE

Supreme Court of the United States

October Term, 1990

THOMAS CIPOLLONE,

Petitioner,

v.

LIGGETT GROUP, INC.,

PHILIP MORRIS, INC.,

and LOEW’S THEATRES, INC.

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF AMICUS CURIAE

ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF PETITIONER

Michael C. Maher, Esq. Jeffrey Robert White*

1050 31st St., N.W. 1050 31st St., N.W.

Washington, DC 20007 Washington, DC 20007

(202) 965-3500 (202) 965-3500

President, Association of Attorney for Amicus Curiae

Trial Lawyers of America *Counsel of Record

aSsa———————————————————————

7 'l 6

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wv os ee Se, Phe |

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............... tock

IDENTITY AND INTEREST OF AMICUS CURIAE .. 1

| I. COURTS MAY NOT SET ASIDE STATE TORT LAW

REMEDIES TRADITIONALLY AVAILABLE TO -

INJURED VICTIMS AS PREEMPTED BY

FEDERAL LAW UNLESS CONGRESS HAS

CLEARLY AND UNAMBIGUOUSLY SO

DEED b0606 6neddoESebeRS06 060000 3

A. This Court has Enunciated Clear Principles To

Resolve Questions of Federal Preemption. .... 3

B. This Court has Established a Strong Presumption

against Preemption of State Tort Remedies .... 7

1. Healthy Federalism Requires A Presumption

that Congress Did Not Intend Preemption of

State Law in Areas Traditionally Occupied By

ee ee eee 7

2. This Court Has Established a Strong

Presumption Against Federal Preemption of State

Remedies in the Absence of An Alternative

Federal Remedy. .............0eeeeseeees 8

C. The Decision to Confer Immunity Upon an Industry

is Policy Decision for Congress, Not the Courts. 9

ii

Il. THE CIGARETTE LABELLING ACT DOES NOT

PREEMPT STATE PRODUCT LIABILITY

COMMON LAW CAUSE OF ACTION

EXPRESSLY OR BY OCCUPYING THE

Ill. JURY AWARDS TO VICTIMS OF TORTIOUS

CONDUCT DO NOT ACTUALLY CONFLICT

WITH FEDERAL REGULATION, .........

B. Jury Awards of Damages Under State Tort Law Do

Not Conflict With Federal Regulatory

GEER cc ccccccecccedebeecuneel

GPSS cc cccsccecstisbceseueen ene

14

14

iii

TABLE OF AUTHORITIES

Cases

Abbot v. American Cyanamid Co., 844 F.2d 1108

DT Sabedeeedeccecscceccococece 9

Brown v. Hotel & Restaurant Employees & Bartenders

International Union Local 54, 468 U.S. 491 (1984) 16

California Coastal Comm'n v. Granite Rock Co.,

PEED s wo cccccccccccccccce 13

California Fed. Savings & Loan Ass'n v. Guerra,

DECTD cccccccccecccccecs 6, 7, 13

California v. ARC America Corp., 109 S. Ct. 1661 (1989) 7

California v. Federal Energy Regulatory Comm'n,

110 S. Ct. 2024 (1990)... eee eee 7

Cipollone v. Liggett Group, Inc., 593 F. Supp. 1146

TEMS Se ceeeeeeecooececccces 13

Dewey v. RJ. Reynolds Tobacco Co., 121 NJ. 69,

577 A.2d 1239 (1990) .... 2... cece eee eees 4,12

English v. General Electric Co.,

110 S. Ct. 2270 (1990) ..........5008- 6, 7, 8, 18

Feldman v. Lederle Laboratories, 97 NJ. 429,

479 A.2d 374 (NJ. 1984) .. 0... cece eee eee 4

Florida Lime and Avocado Growers, Inc. v. Paul,

EP ERs BU CENUD ccc cccccccccccccces 8

iv

FMC Corp. v. Holliday, 111 S. Cx. 403 (1990) ....... 8

Forster v. RJ. Reynolds Tobacco Co., 423 N.W.2d

691 (Minn. App. 1988) ..............0005- 13

Forster v. RJ. Reynolds Tobacco Co., 437 N.W.2d 655

S CEE ocecceccecececeeouceeseooes 12

Freund v. Cellofilm Properties. Inc., 87 NJ. 229,

4352 A.26 FES GES. WEI) .cccccccccccccccccs +

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ..... 11

Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) 18

County v. Automated Medical Laboratories,

Ban. S78 US, FEF CIGEB) 2c cccccccccccces 7, 15

Hines v. Davidowitz, 312 U.S. 52 (1941) ...... 14, 15, 16

Ingersoll-Rand Co. v. McClendon, 111 S. Ct. 478 (1990) 6

International Paper Co. v. Ouellette, 479 U.S. 481 (1987)13

Jones v. Rath Packing Co., 430 U.S. 519 (1977) ...... 8

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).... 8

Maryland v. Louisiana, 451 U.S. 725 (1981) ......... 7

Milwaukee v. Illinois, 451 U.S. 304 (1977) .......... 7

O’Brien v. Muskin Corp., 94 N.J. 160, 463 A.2d 298 (19883

v

Pacific Gas & Elec. Co. v. Energy Resources Comm'n.,

— PP PPTTTITTTTTT TTT Te 10

Palmer v. Liggett Group, Inc., 633 F. Supp. 1171

CR EEE, Seccecoceeeseceetcoeseos 19

SIs vg vi ene Gadeceeseseus 12

Pennington v. Vistron Corp., 876 F.2d 414 (Sth Cir. 1989J2

Pilot Life Ins. Co. v. Dedeaux, 107 S. Ct. 1549 (1987) 6, 18

Puerto Rico Dept. of Consumer Affairs v. Isla

Petroleum Corp., 108 S. Ct. 1350 (1988) ....... 11

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .. 8

Roysdon v. RJ. Reynolds, 849 F.2d 230 (6th Cir. 1988) 12

San Diego Building Trades Council v. Garmon,

Se EE doceceseccccesesecs 8, 16

Schneidewind v. ANR Pipeline Co., 108 S. Ct. 1145 (19888

Silkwood v. Kerr-McGee Corp., 464 US.

aa 4, 7, 9, 17, 18

United Construction Workers v. Laburnum Const. Co.,

Dey CIEE coscéuseeesoenesceeece 4

Wood v. General Motors Corp., 673 F. Supp. 1108

i ED 606 00666s-c6bbeceeteneess 17

vi

Constitutions, Statutes and Rules

U.S. Const., Supremacy Clause .................. 6

Comprehensive Smokeless Tobacco Health Education

EE Winns du cudedesékehinsesos 19

Federal Cigarette Labeling and Advertising Act,

i ii. ée< ecdenhadbabseeceeses 5

DT akcceceseancecsascecceesees 5

ee 6, 12, 14

Other Authorities

Policy, and Alternative Compensation Systems,

39 Syracuse L. Rev. 897 (1988) .............. 9

Ausness, Compensation For Smoking-Related Injuries: An

Alternative to Strict Liability in Tort,

46 Wayne L. Rev. 1085 (1990) ............. 10

Garner, Cigarette Dependency and Civil Liability: A

Modest Proposal, 53 S. Cal. L. Rev. 1423 (1980) . 10

Moore, “Stopping the States,” National Journal,

PN S6cecrecesuecdensoaneessscs 11

Traynor, The Ways and Meanings of Defective Products

and Strict Liability, 32 Tenn. L. Rev. 363 (1965) .. 5

Tribe, Anti-Cigarette Suits, Federalism With Smoke

and Mirrors, The Nation, June 7, 1986 ......... 4

vii

Wade, On the Nature of Strict Tort Liability for

Products, 44 Miss. L.J. 825 (1973) .........5-. 4

Comment, Products Liability: Can It Kick the Smoking

Habit, 19 Akron L. Rev. 269 (1985) .......... 10

Comment, Tobacco Under Fire: Developments in Judicial

Responses to Cigarette Smoking Injuries,

36 Catholic U. L. Rev. 643 (1987) ........... 19

Note, Common Law Claims Challenging Adequacy of

Cigarette Warnings Preempted Under the Federal

Cigarette Labeling and Advertising Act of 1965:

Cipollone v. Liggett Group, Inc., 60 St. John’s

LL. Rev. T5464 (ISEB) onc cccccccccccccccvess 14

“Industries Try For Federal Regulation,”

Washington Post, Nov. 29, 1987 .............. 11

No. 90-1038

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

THOMAS CIPOLLONE,

Petitioner,

v.

LIGGETT GROUP, INC.,

PHILIP MORRIS, INC.,

and LOEW’S THEATRES, INC.

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF AMICUS CURIAE

ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF PETITIONER

~ IDENTITY AND INTEREST OF AMICUS CURIAE

The Association of Trial Lawyers of America [ATLA]

respectfully submits this brief as amicus curiae in support

of Petitioner in this case. Letters of consent by the parties

to the filing of this brief have been filed with the clerk.

2

ATLA is a voluntary bar association of about 65,000

trial attorneys from every State and many foreign countries.

ATLA members primarily represent victims: Those who

have suffered personal injury, infringement of their civil

rights, property damage, or economic loss. State law has

traditionally afforded a remedy in tort by which victims may

seek fair compensation from wrongdoers.

Increasingly, elements of American business and

industry who may be defendants in state tort actions are

seeking refuge in the doctrine of federal preemption. There

are circumstances in which federal displacement of state

tort remedies may be justified. In other instances, immunity

from state law is urged by those whose objective is

immunity from any accountability, where Congress has not

provided for meaningful alternative regulation and

remedies. Such a regulatory gap represents a failure of

government in one of the most fundamental obligations to

its citizens -- the right to legal recourse for injury. The

preservation of our system of federalism demands that

courts foreclose state remedies only upon clear and

unambiguous evidence that Congress so intends.

SUMMARY OF ARGUMENT

The Supremacy Clause permits Congress to preempt

state law. This Court has clearly enunciated and

consistently applied a set of principles to give effect to the

preemptive purpose of Congress. At the same time, due

regard for healthy federalism has led the Court to prescribe

a presumption against federal preemption of state law. This

presumption is especially strong when Congress legislates

in an area traditionally occupied by the States. And the

presumption is stronger yet where Congress is claimed to

have supplanted traditional state tort remedies without

providing an alternative avenue for redress.

3

In this case, the lower court erred in departing from

these accepted principles and drastically expanding the

scope of federal preemption. The lower court properly

determined that the Federal Cigarette Labeling and

Advertising Act did not expressly preempt state products

liability law and did not occupy the field. The lower court

erred, however, in ignoring the strong presumption against

preemption and finding that tort awards actually conflicted

with the federal statute.

Determination that a state law that stands as an

"obstacle" to the accomplishment of the objectives of

Congress is not an appropriate standard for preemption of

State tort law. Moreover, jury damage awards are not the

equivalent of state regulations that might conflict with

federal regulation. Congress itself has made it clear that

tort actions and federal regulation can coexist in the same

regulatory scheme. |

ARGUMENT

I. COURTS MAY NOT SET ASIDE STATE TORT LAW

REMEDIES TRADITIONALLY AVAILABLE TO

INJURED VICTIMS AS PREEMPTED BY FEDERAL

LAW UNLESS CONGRESS HAS CLEARLY AND

UNAMBIGUOUSLY SO INTENDED.

A. This Court has Enunciated Clear Principles To Resolve

Questions of Federal Preemption.

This case need not have come before this Court. It is

true that the issue presented -- the tension between federal

law and state law -- is fundamental in our system of

federalism. It is also true that the balance is sometimes

delicate. Striking that balance, however, is the responsibility

of Congress. This Court has clearly enunciated and

4

consistently applied the principles under which questions of

preemption may be resolved, giving full effect to the

Supremacy Clause and to the demands of federalism.

All the tools which the lower court needed to properly

resolve the issues in this action had been set forth by this

Court in Silkwood v. Kerr-McGee Corp., 464 U.S. 238

(1984). However, the Third Circuit, giving only scant

recognition to Silkwood, struck out on its own course. The

result was, in the words of Prof. Lawrence Tribe, “a major

departure from established principles of federalism,”

threatening the rights which states have afforded citizens in

a wide variety of situations touched by a federal regulatory

presence. L. Tribe, Anti-Cigarette Suits, Federalism With

Smoke and Mirrors, The Nation, June 7, 1986, at 788. At

that point, it became necessary for this Court to correct this

error.

Plaintiff asserts a products liability action, seeking

compensation for the smoking-related death of Rose

Cipollone. Protecting consumers from hazardous products,

including products which are dangerous in the absence of

adequate warnings, and affording fair compensation to

those who are injured by them, is a traditionally strong

State interest. See Freund v. Cellofilm Properties. Inc., 87

N.J. 229, 238, 432 A.2d 925 (N.J. 1981)(policy basis for

Strict liability for failure to warn); Feldman v. Lederle

Laboratories, 97 NJ. 429, 461, 479 A2d 374 (NJ.

1984)(duty to warn); O’Brien v. Muskin Corp., 94 N.J. 160,

463 A.2d 298 (1988)(strict liability represents an allocation

of the risk of injuries caused by unsafe products); Dewey v.

RJ.Reynolds Tobacco Co., 121 N.J. 69, 91, 577 A.2d 1239

(1990)(holding that federal law does not preempt product

liability actions for failure to warn of the dangers of

cigarettes, emphasizing that a primary purpose of tort law

is compensation of victims). These strong state interests

have long been widely acknowledged. See generally Wade,

5

On the Nature of Strict Tort Liability for Products, 44 Miss.

L.J. 825, 826 (1973); Traynor, The Ways and Meanings of

Defective Products and Strict Liability, 32 Tenn. L. Rev. 363,

371 (1965)(noting suits against cigarette manufacturers).

Defendants assert that Congress displaced state law

and deprived injured victims of their right to seek just

compensation with respect to a single product. The Federal

Cigarette Labeling and Advertising Act, as amended in

1970, announces:

It is the policy of the Congress, and the purpose of

this chapter, to establish a comprehensive federal

program to deal with cigarette labeling and advertising

with respect to any relationship between smoking and

health, whereby --

(1) the public may be adequately informed that

cigarette smoking may be hazardous to health by

inclusion of a warning to that effect on each package

of cigarettes; and

(2) commerce, and the national economy may be (A)

protected to the maximum extent consistent with this

declared policy and (B) not impeded by diverse, non-

uniform, and confusing cigarette labeling and

advertising regulations with respect to any relationship

between smoking and health.

15 U.S.C. § 1331 (1982).

Toward this end, Congress required each package of

cigarettes to bear the statement: “Warning: The Surgeon

General Has Determined That Cigarette Smoking Is

Dangerous to Your Health.” 15 U.S.C. § 1333 (1976).

6

Congress also included in the Act a preemption provision:

(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 and or promotion of any

cigarettes the packages of which are labelled in

conformity with the provisions of this chapter.

15 U.S.C. § 1334 (1982).

There is no doubt that the Supremacy Clause gives

Congress the power to displace state law.’ In determining

whether Congress has exercised this power, this Court has

emphasized that “the purpose of Congress is the ultimate

touchstone.” Ingersoll-Rand Co. v. McClendon, 111 S. Ct.

478, 482 (1990); California Fed. Savings & Loan Ass'n v.

Guerra, 479 U.S. 272, 284 (1987); Pilot Life Ins. Co. v.

Dedeaux, 107 S. Ct. 1549, 1552 (1987).

Congress can, of course, indicate its intent to preempt

state law by saying so, clearly and unambiguously, so that

“the courts’ task is an easy one.” English v. General

Electric Co., 110 S. Ct. 2270, 2275 (1990). Apart from

express preemption,

‘This Constitution and the Laws of the United States which shall

be made in Pursuance thereof; and all Treaties made, or which shall be

made, under the Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any State to the Contrary

notwithstanding. Art. VI, cl. 2.

7

[S]tate law can be preempted in either of two general

ways. If Congress evidences an intent to occupy a

given field, any state law falling within that field is

pre-empted. . . . If congress has not entirely displaced

State regulation over the matter in question, state law

is still pre-empted to the extent it actually conflicts

with federal law, that is, when it is impossible to

comply with both state and federal law, or where the

state law stands as an obstacle to the accomplishment

of the full purposes and objectives of Congress.

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984).

This Court has consistently announced and applied

these preemption principles. See, e.g., English v. General

Electric Co., 110 S. Ct. 2270, 2275 (1990); California v.

Federal Energy Regulatory Comm'n, 110 S. Ct. 2024, 2033

(1990); California v. ARC America Corp., 109 S. Ct. 1661,

1665 (1989); California Fed. Savings & Loan Ass'n v.

Guerra, 479 U.S. 272, 280-81 (1987); Hillsborough County v.

Automated Medical Laboratories, Inc., 471 U.S. 707, 713

(1985).

B. This Court Has Established a Strong Presumption

Against Preemption of State Tort Remedies.

1. Healthy Federalism Requires A Presumption that

Congress Did Not Intend Preemption of State Law in Areas

Traditionally Occupied By the States.

Integral to this Court’s preemption doctrine is the

“basic assumption that Congress did not intend to displace

State tort law.” Maryland v. Louisiana, 451 U.S. 725, 746

(1981); Milwaukee v. Illinois, 451 U.S. 304, 316 (1977). This

presumption against preemption is not merely a rule of

Statutory construction, but is based on “due regard for the

8

presuppositions of our federal system, including the

principle of diffusion of power, not as a matter of

doctrinaire localism, but as a promoter of democracy.” San

Diego Building Trades Council v. Garmon, 359 U.S. 236, 243

(1959). See also Jones v. Rath Packing Co., 430 U.S. 519,

525 (1977)(the presumption against preemption “provides

assurance that the federal-state balance .. . will not be

disturbed unintentionally by Congress or unnecessarily by

the courts.”)

Where Congress has legislated in a field which the

states have traditionally occupied, the courts “start with the

assumption that the historic police powers of the States

were not to be superseded by the Federal Act unless that

was the clear and manifest purpose of Congress.” Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). This

Court has consistently reaffirmed this presumption in favor

of state law in areas traditionally occupied by the states.

See English v. General Electric Co., 110 S. Ct. 2270, 2277

(1990)(even in the highly regulated field of nuclear

facilities, the Court found “no clear and manifest intent on

the part of Congress . . . to preempt all state tort laws that

traditionally have been available"); FMC Corp. v. Holliday,

111 S. Ct. 403, 410 (1990); Schneidewind v. ANR Pipeline

Co., 108 S. Ct. 1145, 1156 n.13 (1988); Florida Lime and

Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143-44

(1963)(noting the legitimate interest of States in the

protection “against fraud and deception in the sale of food

products within their borders.”)

2. This Court Has Established a Strong Presumption

Against Federal Preemption of State Remedies in the

Absence of An Alternative Federal Remedy.

In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163

(1803), Chief Justice Marshall stated that “the very essence

9

of civil liberty certainly consists in the right of every

individual to claim the protection of the laws, whenever he

receives an injury. One of the first duties of government is

to afford that protection.” Recognition of this basic notion

has caused this Court to refuse to find preemption of state

law remedies where federal law provided no alternative

redress. See United Construciion Workers v. Laburnum

Const. Co., 347 U.S. 656, 663-64 (1954).

As the Silkwood Court stated:

This silence (of congress) takes on added significance

in light of Congress’ failure to provide any federal

remedy for persons injured by such conduct. It is

difficult to believe that Congress would, without

comment, remove all means of judicial recourse for

those injured by illegal conduct.

464 US. at 251. Justice Blackmun, dissenting in Silkwood,

was equally emphaiic on this point: “The absence of

federal regulation governing the compensation of victims is

Strong evidence that Congress intended the matter to be

left to the States.” 464 U.S. at 264 n.7.

Other courts have followed this mandate. See, e.g.,

Abbot v. American Cyanamid Co., 844 F.2d 1108, 1112 (4th

Cir. 1988)("The presumption is even stronger against

preemption of state remedies, like tort recoveries, when no

federal remedies exist.”)

C. The Decision to Confer Immunity Upon an Industry is

Policy Decision for Congress, Not the Courts.

It has been suggested that courts have found

preemption in cigarette cases in order to protect the

tobacco industry from flood of claims. See Ausness,

Cigarette Company Liability: Preemption, Public Policy, and

10

Alternative Compensation Systems, 39 Syracuse L. Rev. 897,

903 (1988); 32 Vill. L. Rev. 875, 891 (1987).

The tobacco industry is hardly in need of such

indulgence. From the mid-1950’s to the present, the entire

industry has never lost a trial or paid a Yo

e and Civil Liability: A

POEL T ner 1c (080, Conte mamtecares

managed to compile this unique record without the benefit

of federal preemption. Rather, success has been due to the

inability of plaintiffs to overcome a variety of difficult

problems of proof. Jd. at. 1425-28; See also Comment,

Products Liability: Can It Kick the Smoking Habit, 19 Akron

L. Rev. 269 (1985)(discussing early wave of cigarette cases

in detail).

It should be immediately apparent that, even without

the protective shield conferred upon cigarette

manufacturers by the Third Circuit, few smokers could be

confident of prevailing in a product liability action.”

If a significant number of claims for smoking-related injuries

Injuries: An Alternative to Strict Liability in Tort, 46 Wayne L. Rev. 1085

(1990); Garner, Cigarette and Civil Liability: A Modest

Proposal, 53 S. Cal. L. Rev. 1423 (1980). The tobacco industry, which

carries considerable clout in congressional corridors, can be counted on

to ensure that the industry remains a viable, if winded, market

competitor. The Third Circuit, however, should have more closely

heeded this Court’s advice: “The courts should not assume the role

which our system assigned to Congress.” Pacific Gas & Elec. Co. v.

Energy Resources Comm’n., 461 U.S. 190, 223 (1983).

11

As a result, those most affected by the extraordinarily

broad view of federal preemption espoused by the lower

court will not be smokers or the tobacco industry. They will

be those injured by the wide array of products or services

touched in some fashion by federal regulation. The Court

is therefore not required to blind itself to the political

realities surrounding this dispute.

Though this court recognized Congress’ preemptive

authority as early as Gibbons v. Ogden, 22 U.S. (9 Wheat.)

1 (1824), over half of the federal statutes which have ever

preempted state law were enacted since 1970. Moore,

"Stopping the States," National Journal, July 21, 1990 at

1760 (Reporting data supplied by the Advisory Commission

on Intergovernmental Relations).

The demand by business and industry for federal

preemption is often simply an attempt to avoid state

regulation that has become more stringent than federal

requirements. Jd. A report by the Academy for State and

Local Government found that, while the federal role in

intergovernmental relations has diminished as a result of

deregulation and reduced federal aid, state and local

authority continues to be preempted. See “Industries Try

For Federal Regulation,” Washington Post, Nov. 29, 1987.

The result is a vacuum. The regulatory cat slowly fades,

leaving behind a preemptive grin. Cf. Puerto Rico Dept. of

Consumer Affairs v. Isla Petroleam Corp., 108 S. Ct. 1350,

1355 (1988).

The politically sensitive nature of this conflict amply

justifies this Court’s refusal to find preemption in the

absence of clear and manifest evidence that Congress so

intended. The lower court acknowledged that it could find

no definitive evidence of Congress’ intent to preempt state

tort law in either the language of the statute or the

12

legislative history. 789 F.2d 185-86. Amicus respectfully

suggests that if the lower court had accorded the proper

weight to this Court’s presumption against preemption of

traditional state tort remedies, it would have permitted

plaintiffs action to go forward.

Il. THE CIGARETTE LABELLING ACT DOES NOT

PREEMPT STATE PRODUCT LIABILITY COMMON

LAW CAUSES OF ACTION EXPRESSLY OR BY

OCCUPYING THE FIELD.

The lower court correctly found that in § 1334 of the

Act, Congress did not expressly preempt state tort law. Nor

did Congress clearly intend to occupy the field so as to

preclude state tort actions. 789 F.2d at 185-86. Every court

which has considered this issue has reached the identical

conclusion. Pennington v. Vistron Corp., 876 F.2d 414, 418-

21 (Sth Cir. 1989); Roysdon v. RJ. Reynolds, 849 F.2d 230,

234 (6th Cir. 1988); Palmer v. Liggett Group, Inc., 825 F.2d

620, 625-26 (1st Cir. 1987); Dewey v. RJ. Reynolds Tobacco

Co., 121 N.J. 69, 577 A.2d 1239, 1247 (1990); Forster v. RJ.

Reynolds Tobacco Co., 437 N.W.2d 655, 658-60 (Minn.

1989).

The Act prohibits imposition of advertising

requirements “under state law,” clearly preempting state

statutory and regulatory requirements. If Congress had

wanted to bar common law tort actions as well, it could

have done so explicitly, as it has in other statutes.’

3See, ¢.g., Domestic Housing and International Recovery and

Financial Stability Act, 12 U.S.C. § 1715z-17(d), -18(e) (Supp. V

1987)(preempting any “State constitution, statute, court decree, common

law, rule, or public policy"); Copyright Act of 1976, 17 US.C.

§301(a)(1982)(preempting rights “under the common law or statutes of

any State"); Employee Retirement Income Security Act of 1974, 29

13

Moreover, portions in the legislative history support the

notion that Congress anticipated that product liability suits

against cigarette manufacturers would continue under the

Act. See Cipollone v. Liggett Group, Inc., 593 F. Supp. 1146,

1162-63 (D.N.J. 1984)(quoting HEW Counse! Ellenbogen,

referring to previous product liability suits against cigarette

makers, and statements by Rep. Fascell, Rep. Watson, and

others concerning the Act’s effect on the chances of success

of future plaintiffs).

Had Congress been silent with respect to preemption,

it would have been appropriate for the lower court to

search, as it did, for signs of implied intent. See

International Paper Co. v. Ouellette, 479 U.S. 481, 493

(1987)(“Given that the Act itself does not speak directly to

the issue, the Court must be guided by the goals and

policies of the Act in determining whether it in fact

preempts [state law].”)(emphasis added). In the Cigarette -

Labeling and Advertising Act, however, Congress was not

silent. It included a_ section specifically entitled

“Preemption” which did not include state tort actions.

Amicus suggests that this situation is more closely

related to that addressed by Justice Marshall in California

Fed. Savings & Loan Ass’n v. Guerra, 479 U.S. 272, 281

(1987). Where Congress included two express preemption

provisions in the Civil Rights Act, “there is no need to

infer congressional intent to pre-empt state laws.” See also

California Coastal Comm’n v. Granite Rock Co., 107 S. Ct.

1419, 1430 (1987)(A clear expression of Congress’ intent

“will end our inquiry.”); Forster v. RJ. Reynolds Tobacco

Co., 423 N.W.2d 691, 696 (Minn. App. 1988), affd in part,

US.C. § 1144(a), (c)(1)(1982)(preempting all state “law, decision, rules,

regulations, or other State action having the effect of law’).

14

437 N.W.2d 655 (Minn. 1989)("It is one thing for courts to

try to divine congressional intent from the overall operation

of a statute and its legislative history when Congress has

been silent, but it is quite another to do so when Congress

has included specific provisions, as in did in 15 U.S.C.

$1334, expressly addressing what it intended to preempt.")

Amicus suggests that the lower court erred in seeking

out implied intent in the face of Congress’ express

Statement of preemption which did not included tort

actions. Amicus further submits that the lower court further

erred in finding implied preemption.

Ill, JURY AWARDS TO VICTIMS OF TORTIOUS

CONDUCT DO NOT ACTUALLY CONFLICT WITH

FEDERAL REGULATION.

A. The Hines Test Does Not Apply to State Tort Remedies.

The core of the Third Circuit’s holding is

the duties imposed though state common law damage

actions have the effect of requirements that are

capable of creating “an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress. See Hines, 312 U.S. at 67, 61 S.

Ct. at 404...”

789 F.2d at 187.

The quoted passage from Hines v. Davidowitz, 312 U.S.

52 (1941), to a far greater extent than any other element in

this Court’s set of preemption standards, permits a court to

interject its own policy judgments for those of Congress.

For this reason, commentators have urged its abandonment.

Note, Common Law Claims Challenging Adequacy of

15

Cigarette Warnings Preempted Under the Federal Cigarette

Labeling and Advertising Act of 1965: Cipollone v. Liggett

Group, Inc., 60 St. John’s L. Rev. 754, 767 (1986).

This Court need not go so far, however. The context

in which Justice Black announced this rule indicates that it

was clearly intended to apply in areas of particularly federal

concern. At issue was the validity of an Alien Registration

Act adopted by the state of Pennsylvania:

Our primary function is to determine whether, under

the circumstances of this particular case,

Pennsylvania’s law stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress. And in that determination, it is

of importance that this legislation is in a field which

affects international relations, the one aspect of our

government that from the first has been most generally

conceded imperatively to demand broad national

authority. Any concurrent state power that may exist is

restricted to the narrowest of limits; the state’s power

here is not bottomed on the same broad base as is its

power to tax. And it is of importance that this

legislation deals with the rights, liberties and personal

freedoms of human beings, and is in an entirely

different category from state tax statutes or state pure

food laws regulating the labels on cans.

312 U.S. at 67-68. (emphasis added)

This distinction was underscored recently in

Hillsborough County v. Automated Medical Laboratories,

Inc., 471 U.S. 707 (1985), which involved local regulation of

blood plasma. Justice Marshall, for the Court noted that

Hines inferred a congressional intent to preempt state law

based on the dominance of the federal interest in foreign

16

affairs. “Needless to say, those factors are absent here.

Rather, as we have stated, the regulation of health and

safety matters is primarily and historically, a matter of local

concern.”

471 U.S. at 719.

On this basis, Amicus suggests, the Third Circuit erred

in applying the Hines test to preempt a state tort remedy.

B. Jury Awards of Damages Under State Tort Law Do Not

Conflict With Federal Regulatory Activities.

The most damaging and fundamental error in the

lower court’s decision is the notion that a jury damage

award in a tort suit is, for preemption purposes, the

equivalent of state regulatory action.

To be sure, there is some support for this view in this

Court’s opinion in San Diego Building Trades Council v.

Garmon, 359 U.S. 236, 247 (1959)

Such regulation can be as effectively exerted through

an award of damages as though some form of

preventive relief. The obligation to pay compensation

can be, indeed is designed to be, a potent method of

governing conduct and controlling policy.

As this Court has recently clarified, Garmon sought to

establish the remedial scheme provided by the National

Labor Relations board in place of state remedies “by

ensuring that the primary responsibility for interpreting and

applying this body of law remained with the NLRB...

based on the primary jurisdiction rationale.” Brown v. Hotel

& Restaurant Employees & Bartenders International Union

Local 54, 468 U.S. 491, 502 (1984). As one district court

concluded, Garmon is best understood as dealing with the

primary jurisdiction of the NLRB and its remedial scheme.

17

Wood v. General Motors Corp., 673 F. Supp. 1108, 1118 n.14

(D. Mass. 1987), rev'd 865 F.2d 395 (1st Cir. 1988).

Again, this Court’s Silkwood decision provided all the

guidance the lower court needed. In that case, the Court

held that federal law preempted state regulation of atomic

power, but permitted jury awards for damage due to

plutonium contamination.

Congress did not believe that it was inconsistent to

vest the NRC with exclusive regulatory authority over

the safety aspects of nuclear development while at the

same time allowing plaintiffs like Mr. Silkwood to

recover for injuries caused by nuclear hazards.

464 US. at 258.

Moreover, both dissenting opinions agreed with the

majority that compensatory damages, at least, do not

conflict with federal regulation. Justice Blackmun stated

that “the purpose of punitive damages is to regulate safety,

whereas the purpose of compensatory damages is to

compensate victims.” /d. at 263. Justice Powell’s view was

that, “[t]here is no element of regulation when

compensatory damages are awarded, especially when

liability is imposed without fault, as authorized by state

law.” Id. at 276 n.3.

This Court reaffirmed this distinction recently in

another case involving nuclear safety:

[FJor a state law to fall within the pre-empted zone, it

must have some direct and substantial effect on the

decisions made by those who build or operate nuclear

facilities concerning radiological safety levels. We

recognize that a claim for intentional infliction of

emotional distress at issue here may have some effect

18

on these decisions, because liability for claims like

petitioner’s will attach additional consequences to

retaliatory conduct by employers. As employers find

retaliation more costly, they will be forced to deal with

complaints by whistleblowers by other means,

including altering radiological safety policies.

Nevertheless, we believe that this effect is neither

direct nor substantial enough to place petitioner’s

claim in the preempted field.

This result is strongly suggested by the decision

in Silkwood v. Kerr-McGee Corp.

English v. General Electric Co., 110 S. Ct. 2270, 2278 (1990).

See also Goodyear Atomic Corp. v. Miller, 486 U.S. 174

(1988)(Congress may reasonably determine that incidental

regulatory pressure is acceptable, whereas direct regulatory

authority is not.); Pilot Life Ins. Co. v. Dedeaux, 107 S. Ct.

1549, 1554 (1987)(*A common-sense view of the word

‘regulates’ would lead to the conclusion that in order to

regulate insurance, a law must not just have an impact on

the insurance industry, but be specifically directed toward

that industry.” The Court concluded that tort law is not a

State law which “regulates insurance.")

Any remaining notion that Congress viewed product

liability awards as an obstacle to its purposes evaporated

with the passage of a similar measure shortly after the first

preemption decisions were rendered. As described by

District Judge Mazzone,

Persuasive evidence of Congress’ belief that common

law claims concerning the adequacy of warnings can

exist side by side with federal uniform warning

requirements can be found in the Comprehensive

Smokeless Tobacco Health Education Act of 1986,

Pub. L. No. 99-252, 1986 U.S. Code Cong. & Admin.

19

News (100 Stat.) 30, passed in February, 1986. This

Act is very similar to the Cigarette Labeling Act. ...

Congress must have been acutely aware during

the period the bill was pending --July, 1985 to

February, 1986 -- of cases like Cipollone and Roysdon

in which cigarette manufacturers were arguing that the

federal cigarette labeling requirements preempted

common law claims. It included in its preemption

clause, a ‘savings clause’: “Nothing in the Act shall

relieve any person from liability at common law or

under State statutory law to any other person.” Sec.

7(c). . . . It seems certain, therefore, that Congress

believes that allowing products liability suits involving

the adequacy of cigarette warnings will not frustrate its

objective of uniform warnings.

Palmer v. Liggett Group, Inc., 633 F. Supp. 1171, 1179 (D.

Mass. 1986)

Cigarette-related illness and death result in enormous

costs in the form of medical expense and lost productivity.

See generally Comment, Tobacco Under Fire: Developments

in Judicial Responses to Cigarette Smoking Injuries, 36

Catholic U. L. Rev. 643, 645 (1987). The immunity

conferred on the entire industry by the Third Circuit is

extraordinary. Virtually no other industry, no matter how

financially insecure, is as insulated from responsibility for

the damage it causes. Virtually no other product is as bereft

of social value that might justify such favored treatment.

Amicus submits that, under the preemption principles this

Court has set forth, the lower court was obligated to

require far clearer and unmistakable evidence that

Congress intended this result.

For these reasons, Amicus respectfully urges this Court

20

CONCLUSION

to reverse the order of the court of appeals.

May 24, 1991

Respectfully submitted,

Jeffrey Robert White

1050 31st St., N.W.

Washington, D.C. 20007

(202 965-3500

Attorney for Amicus Curiae

Association of Trial Lawyers

of America

*s

eee i tts