Carrie Badon v. R. J. Reynolds Tobacco Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-1048

CARRIE BADON

VERSUS

R. J. REYNOLDS TOBACCO CO., ET AL.

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT,
PARISH OF CAMERON, NO. 10-13653,
HONORABLE CHARLEY QUIENALTY, DISTRICT JUDGE AD HOC

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JIMMIE C. PETERS
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Elizabeth A. Pickett,
Judges.

AFFIRMED AND REMANDED.

Jennifer Jones
Jones Law Firm
Post Office Box 1550
Cameron, LA 70631
(337) 775-5714
COUNSEL FOR PLAINTIFF/APPELLANT:
Carrie Badon

James Nieset
Plauché, Smith & Nieset
1123 Pithon Street
Lake Charles, LA 70601
(337) 436-0522
COUNSEL FOR DEFENDANTS/APPELLEES:
R. J. Reynolds Tobacco Co., et al.

PETERS, J.

Carrie Badon appeals the dismissal on summary judgment of her claim for

punitive damages and her claims based on the “unreasonably dangerous per se”

doctrine in connection with her suit for damages against various tobacco defendants

arising out of her contraction of cancer.1 For the reasons that follow, we affirm.

DISCUSSION OF THE RECORD

Carrie Badon filed suit for compensatory and punitive damages against

numerous tobacco manufacturers and distributors, including R. J. Reynolds Tobacco

Company, Brown & Williamson Tobacco Corporation, Philip Morris U.S.A., Inc.,

Liggett & Myers, Inc., Liggett Group Inc., and Brooke Group, Ltd. (collectively

referred to as the tobacco defendants).2 In her suit, Ms. Badon alleged that she

contracted throat, larynx and vocal cord cancer as a result of her consumption of

cigarettes manufactured and sold by the tobacco defendants. Through her pleadings,

Ms. Badon alleged various theories of recovery and claimed compensatory as well as

punitive damages. Among her allegations, Ms. Badon asserted failure to warn,

suppression, and unreasonably dangerous per se theories of recovery and sought

punitive damages pursuant to former La.Civ.Code art. 2315.3.

The tobacco defendants filed several motions for summary judgment seeking,

among other things, to have Ms. Badon’s claim for punitive damages dismissed and

seeking to have other claims dismissed on the basis of federal preemption. Following

a hearing on the motions, the trial court rendered judgment granting the tobacco

1
The trial court also granted summary judgment dismissing Ms. Badon’s claims based on
absolute liability under the “ultrahazardous activity” doctrine. However, Ms. Badon has expressly
abandoned her appeal as to the granting of the summary judgment in this regard in view of the
Louisiana Supreme Court’s decision in Suire v. Lafayette City-Parish Consolidated Government,
04-1459, 04-1460, 04-1466 (La. 4/12/05), 907 So.2d 37.
2
Ray Badon, Russell Badon, Joe Mae Badon Roberson, and Scotty Joseph Badon joined Ms.
Badon as party plaintiffs, but Ms. Badon alone filed the appeal currently before us. Thus, we will
address the facts and issues only as they relate to Ms. Badon.

defendants’ motions for summary judgment as to Ms. Badon’s punitive damages

claim. The trial court also granted the tobacco defendants’ motions for summary

judgment as to Ms. Badon’s failure to warn and suppression claims, finding that they

were “preempted but only with respect to advertising and promotion” and holding

that “post-1969 claims regarding Defendants’ ‘neutralizing’ the effect of the

mandated warning” were preempted. The trial court also held that Ms. Badon’s

“unreasonably dangerous per se claims based on post-1969 events” were preempted.

Additionally, the trial court designated the summary judgments as final judgments for

the purpose of immediate appeal. Ms. Badon has appealed.

OPINION

Punitive Damages

In addition to her claim for compensatory damages, Ms. Badon sought punitive

damages pursuant to former La.Civ.Code art. 2315.3, which provided for such

damages in connection with the storage, handling, or transportation of hazardous or

toxic substances. While this Article was repealed by 1996 La. Acts No. 2, 1st

Ex.Sess., § 1, effective April 16, 1996, section 2 of the Act provided that its

provisions would “only be applicable to causes of action which arise on or after the

effective date hereof.” The Article’s applicability to the instant cause of action is not

at issue on appeal.

Former La.Civ.Code art. 2315.3 provided in pertinent part as follows:

In addition to general and special damages, exemplary damages
may be awarded, if it is proved that plaintiff’s injuries were caused by
the defendant’s wanton or reckless disregard for public safety in the
storage, handling, or transportation of hazardous or toxic substances.

Importantly, former La.Civ.Code art. 2315.3 is subject to strict construction, as it

imposes a penalty. Bonnette v. Conoco, Inc., 01-2767 (La. 1/28/03), 837 So.2d 1219.

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In order to obtain a punitive damages award under La.Civ.Code art. 2315.3, the

plaintiff must prove that (1) the defendant’s conduct was wanton and reckless; (2) the

danger created by the defendant’s wanton or reckless conduct threatened or

endangered public safety; (3) the defendant’s wanton or reckless conduct occurred

in the storage, handling, or transportation of hazardous or toxic substances; and (4)

the plaintiff’s injury was caused by the defendant’s wanton or reckless conduct. Id.

The purpose of La.Civ.Code art. 2315.3 is threefold: (1) to penalize and punish

tortfeasors for engaging in wanton or reckless disregard for public safety in the

storage, handling, or transportation of hazardous or toxic substances that cause injury

to others; (2) to deter tortfeasors and others who might follow their example from

exposing the public to such dangers in the future; and (3) to provide victims injured

by such conduct with incentive to act as the prosecutors of penal laws against such

wrongdoers. Ross v. Conoco, Inc., 02-299 (La. 10/15/02), 828 So.2d 546. In fact, the

“history and the language of the article indicate a legislative determination that the

public interest is adequately protected by punishing parties who wantonly or

recklessly pollute our state and harm our citizens while storing, handling, or

transporting hazardous or toxic substances.” Id. at 553-54.

The trial court granted summary judgment dismissing Ms. Badon’s claim for

punitive damages pursuant to La.Civ.Code art. 2315.3 on the basis that the tobacco

defendants’ conduct was not wanton or reckless and did not occur in the storage,

handling, or transportation of the cigarettes. Louisiana Code of Civil Procedure

Article 966(B) requires that the trial court grant summary judgment where sought “if

the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to material fact, and

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that mover is entitled to judgment as a matter of law.” For the following reasons, we

agree with the trial court that the tobacco defendants were entitled to summary

judgment on the issue as a matter of law because Ms. Badon’s allegations of liability

do not pertain to the tobacco defendants’ conduct in storing, handling, or transporting

the cigarettes. In so holding, we make no comment as to whether the other elements

necessary for a La.Civ.Code art. 2315.3 claim were satisfied or whether federal law

preempts such claims.

In Williams v. A.C. & S., Inc., 700 F.Supp. 309 (M.D.La. 1988), the plaintiff

sought punitive damages under La.Civ.Code art. 2315.3 in connection with injury to

his lungs allegedly sustained through the manufacture and distribution of asbestos

products. The defendants filed a motion to strike the punitive damages claims, which

motion the court granted. In so holding, the court explained that “Defendants’ fault,

if any, arises from the manufacture, design, and labelling of the products-conduct

which, although within the realm of products liability, lies outside the scope of article

2315.3.” Id. at 310. Likewise, Ms. Badon’s allegations of liability pertain to the

tobacco defendants’ manufacturing, design, and labeling activities, and not to their

storage, handling, or transportation of cigarettes. We note that the Louisiana

Supreme Court in Ross, 828 So.2d 546, relied on the reasoning in Williams to reject

a claim for punitive damages under La.Civ.Code art. 2315.3 where the plaintiffs

claimed that the defendants conspired to commit battery and to misrepresent

fraudulently the harmful effects of vinyl chloride. In other words, the mere fact that

a potentially hazardous product causes injury does not automatically bring a

defendant allegedly involved with the product within the ambit of La.Civ.Code art.

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2315.3; the plaintiff must still prove that the defendant stored, handled, or transported

the product that caused the injury.

Ms. Badon has cited us to jurisprudence in support of her claim, but the

jurisprudence she has cited is not compelling. Specifically, Ms. Badon cites

jurisprudence that stands for the proposition that a manufacturer is not automatically

insulated from punitive damages under La.Civ.Code art. 2315.3 simply due to its

status as a manufacturer. We agree. Nevertheless, the jurisprudence further holds

that in order for a manufacturer to be subject to punitive damages under La.Civ.Code

art. 2315.3, the manufacturer’s fault must have arisen out of the storage, handling, or

transportation of toxic or hazardous substances. As set forth above, Ms. Badon’s

allegations pertain to causation of her cancer due to the manufacture, design, and

labeling activities of the tobacco defendants, and not to the storage, handling, or

transportation of the cigarettes. In fact, Ms. Badon’s own expert, Dr. K. Michael

Cummings, acknowledged that cigarettes are not hazardous unless they are smoked.

Notwithstanding, Ms. Badon cites jurisprudence wherein summary judgment

was precluded due to a genuine issue of material fact as to whether a defendant

“handled” a product, and she contends that the tobacco defendants in the instant case

“handled their product in such a manner as to increase its addictive propensity.”

However, semantics is insufficient to create a genuine issue of material fact.

Regardless of the term she used, Ms. Badon’s allegation sounds in the design of the

cigarettes, and not the handling of the cigarettes as the term is used in La.Civ.Code

art. 2315.3. Importantly, Ms. Badon has failed to cite any case in which a court has

imposed punitive damages under La.Civ.Code art. 2315.3 upon a

manufacturer/distributor of cigarettes in favor of a plaintiff who has sustained injury

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from smoking cigarettes. Accordingly, we affirm the trial court’s grant of summary

judgment as to the La.Civ.Code art. 2315.3 claim.

Preemption

Ms. Badon based her claim for damages in part on allegations of the tobacco

defendants’ failure to warn, neutralizing the effect of the mandatory warning, and

suppression of information. She also alleged that cigarettes are unreasonably

dangerous per se. The trial court granted the tobacco defendants’ motion for

summary judgment as to Ms. Badon’s failure to warn and suppression claims, finding

that they were “preempted but only with respect to advertising and promotion” and

holding that “post-1969 claims regarding Defendants’ ‘neutralizing’ the effect of the

mandated warning” were preempted. The trial court also held that Ms. Badon’s

“unreasonably dangerous per se claims based on post-1969 events” were preempted.3

Ms. Badon has appealed only the trial court’s rejection of her unreasonably dangerous

per se claim.

Ms. Badon’s claim that cigarettes are unreasonably dangerous per se is based

on Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 118 (La.1986), which held

that a plaintiff can recover against the manufacturer of a product if the product is

“unreasonably dangerous per se, i.e., too dangerous to be placed on the market.” The

elements of a liability claim based on the product’s “unreasonably dangerous per se”

character require proof, first, that the product is in fact unreasonably dangerous per

se. If the product itself is dangerous in fact and if its danger-in-fact outweighs its

utility, it is unreasonably dangerous per se. This is explained in Adams v. Owens-

3
The significance of the year 1969 is because that was the effective date of the Federal
Cigarette Labeling and Advertising Act, as amended by the Public Health Cigarette Smoking Act
of 1969 (15 U.S.C.A. § 1331, et seq.), which requires that every package of cigarettes sold in the
United States bear a warning label and bans cigarette advertisements on electronic communication
media.

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Corning Fiberglas Corp., 04-1589 (La.App. 1 Cir. 9/23/05), 923 So.2d 118, 122, writ

denied, 05-2318 (La. 3/10/06), 925 So.2d 519, as follows:

Louisiana law recognizes products which are “unreasonably
dangerous per se” as a separate class of defective products. For
products in this category, liability may be imposed solely on the basis of
the intrinsic characteristics of the product irrespective of the
manufacturer’s intent, knowledge, or conduct. A product is
unreasonably dangerous per se if a reasonable person would conclude
that the danger-in-fact of the product, whether foreseeable or not,
outweighs the utility of the product. This theory considers the product’s
danger-in-fact, not whether the manufacturer perceived or could have
perceived the danger, because the theory’s purpose is to evaluate the
product itself, not the manufacturer’s conduct. Likewise, the benefits
are those actually found to flow from the use of the product, rather than
as perceived at the time the product was designed and marketed. The
fact that a risk or hazard related to the use of a product was not
discoverable under existing technology or that the benefits appeared
greater than they actually were are both irrelevant. Halphen, 484 So.2d
at 113-14.

Once a plaintiff has established the unreasonably dangerous per se character

of the product, in this case cigarettes, liability is imposed solely on the basis of the

intrinsic characteristics of the product. The remaining elements of the claim are then

simple. In the blunt and substantively accurate language of the trial court, the

plaintiff must prove only that “they’re selling[,] I smoked[,] and [I’m] dying.”

The decision in Halphen, 484 So.2d at 118, equated “unreasonably dangerous

per se” with “too dangerous to be placed on the market.” The preemption assignment

of error does not involve a determination on the merits of whether cigarettes are

unreasonably dangerous per se. Rather, the question is whether, as a matter of law,

the claim itself is preempted by federal law.

Pursuant to the Supremacy Clause of Article VI of the United States

Constitution, state law may be preempted by federal provisions if Congress has either

enacted a clear expression of that intent or it has legislated so comprehensively in a

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field that it has left no room for state regulation. Epoch Wellsite Servs. v. Ortego, 03-

547 (La.App. 3 Cir. 11/5/03), 858 So.2d 827 (citing Capital Cities Cable, Inc. v.

Crisp, 467 U.S. 691, 104 S.Ct. 2694 (1984)), writ denied, 03-3348 (La. 2/13/04), 867

So.2d 693. Additionally, preemption will be found when it is impossible to comply

with both the federal and state provisions or when application of state law stands as

an obstacle to the accomplishment and execution of Congress’s full objectives and

purposes. Id.

Ms. Badon argues that Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112

S.Ct. 2608 (1992), is controlling on the preemption issue and that it is in her favor.

In Cipollone, the plaintiff sued certain cigarette manufacturers, alleging that they

were responsible for the death of his mother, a long-time cigarette smoker. The

plaintiff asserted various claims, including breach of express warranty, failure to warn

consumers of smoking hazards, fraudulent misrepresentation of smoking hazards to

consumers, and conspiracy to deprive the public of medical and scientific information

about smoking. The Cipollone decision was that the express language of the

Labeling Act preempted some, but not all, common law damages actions. Ms. Badon

argues that Cipollone remains the authority in determining what is preempted by the

Labeling Act and that, because there is no express language in the Act forbidding the

application of Louisiana’s unreasonably dangerous per se cause of action, it is not

preempted.

Ms. Badon’s reliance on Cipollone is misplaced. That case dealt with express

preemption, the foreclosure of state action by express language in a congressional

enactment. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404 (2001).

Conflict preemption occurs when state law stands as an obstacle to the

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accomplishment and execution of the full purposes and objectives of Congress. Fid.

Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014 (1982).

Conflict preemption may exist even in the absence of an express statement of

preemptive intent. Geier v. Am. Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913

(2000). The present case concerns conflict preemption and not express preemption.

The trial court concluded that Ms. Badon’s unreasonably dangerous per se

claims were preempted because a ruling that cigarettes are unreasonably dangerous

per se would have the effect of imposing a ban on the manufacture/sale of cigarettes

where Congress has not enacted a ban. Our de novo review of the summary judgment

record causes us to reach the same conclusion. In Food & Drug Administration v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 137, 139, 120 S.Ct. 1291, 1203,

1204 (2000), the United States Supreme Court stated that “Congress, however, has

foreclosed the removal of tobacco products from the market” and that “[a] ban of

tobacco products . . . would . . . plainly contradict congressional policy.” The court

in Insolia v. Philip Morris Inc., 128 F.Supp.2d 1220, 1224 (W.D.Wis. 2000), after

pointing to Congress’s manifest policy in favor of keeping cigarettes on the market,

stated:

Plaintiffs are correct that there is no law or regulation that
preempts their claim that it is actionable negligence for defendants to
continue to manufacture and sell cigarettes once they realized the danger
that cigarettes posed. What preempts their claim is Congress’s
considered decision that the sale of cigarettes is not only not illegal but
part of a market the government supports.

Nevertheless, Ms. Badon urges in her appellate brief that “[t]he fact that the

defendants may be found liable for these actions does not equate to a ban on the

marketing of their product.” The phrase “these actions” as used in this argument can

mean only the manufacture and sale of cigarettes. We cannot agree with Ms. Badon’s

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argument. Indeed, if Ms. Badon succeeds in proving the unreasonably dangerous per

se character of cigarettes, she will have established a precedent for liability that

cigarette manufacturers can avoid only by taking the product off the market. Thus,

Ms. Badon will have effectively utilized Louisiana law to ban the sale of cigarettes

in this state, in contravention of congressional policy foreclosing the removal of

tobacco products from the market. Thus, the doctrine of federal conflict preemption

applies. Therefore, as a matter of law, the tobacco defendants were entitled to

summary judgment dismissing Ms. Badon’s claim based on the theory that cigarettes

are unreasonably dangerous per se. Accordingly, we affirm the trial court’s grant of

summary judgment dismissing this claim.

DISPOSITION

For the foregoing reasons, we affirm the grant of the summary judgments and

remand this case to the trial court for further proceedings. We assess costs of this

appeal to Carrie Badon.

AFFIRMED AND REMANDED.

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