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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0066%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 504

## Text

| Supreme Court, U.S,
*¥ [LED

0 } MAY 2 4 199)
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0066%3A13. Public record. Not legal advice.