VERNA STEPHEN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANDREW STEPHEN, DECEASED, PLAINTIFF-APPELLANT,
v.
AMERICAN BRANDS, INC., DEFENDANT-APPELLEE
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The court held that the district court properly denied the motion to strike the federal preemption defense.
Plaintiff sued a cigarette manufacturer alleging liability for her husband's death due to inadequate warnings. The defendant asserted that the Federal…
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[*313] PER CURIAM:
This is a diversity suit instituted by Verna Stephen, as personal representative of her deceased husband’s estate, against American Brands, Inc., alleging that the defendant is liable for the death of her husband because, from 1930 through 1984, he smoked cigarettes manufactured by the defendant. The complaint specifically alleged, among other things, that defendant failed to provide Andrew Stephen with adequate warnings of the risks associated with smoking. Defendant, who alleges that it at all times has complied with the warning requirements of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C.A. §§ 1331-1341, answered, inter alia, on the ground that some of plaintiffs claims were preempted by that Act. Plaintiff moved to strike this defense.
The district court, relying on the only federal appellate decision addressing the issue, Cipollone v. Liggett Group, Inc., 789 F. 2d 181 (3d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987), held that the labeling act “does preempt tort claims which are premised on the adequacy of warnings on cigarette packaging or the propriety of a party’s actions with respect to the advertising and promotion of cigarettes.” The district court, accordingly, denied plaintiff’s motion to strike defendant’s federal preemption defense. The ruling was appealed under 28 U.S.C.A. § 1292(b).
We affirm.
The Supremacy Clause of the United States Constitution vests Congress with the power to preempt state law. U.S. Const., art. VI, cl.
2. Congress may do so expressly dr impliedly. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977).
Where no express preemption language is included in the federal law, preemption may occur by implication where the federal scheme established by Congress is so pervasive as to “occupy the field” and leave no room for local supplementation. Fidelity Federal Savings & Loan Ass’n. v. De La Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed.2d 1447 (1947).
Even if Congress does not occupy the entire field, state law may still be preempted where an actual conflict with federal law occurs making compliance a “physical impossibility.” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or where the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941) (footnote omitted).
The burden of showing that Congress intended to preclude the states from providing traditional state law remedies for its citizens rests upon the defendant. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255, 104 S.Ct. 615, 625, 78 L.Ed.2d 443 (1984).
The question presented on this appeal is whether the district court properly denied the motion to strike a preemption defense to any of Stephen’s state law tort claims. If the defense is good to any claim, the district court should be affirmed, and it is not necessary for this Court to address the merits of any particular claim.
We adopt the decision and reasoning of the Third Circuit in Cipollone v. Liggett Group, Inc., 789 F. 2d 181 (3d Cir.1986). That was a case in which the district judge had granted a motion to strike a preemption defense as has been pled in this case. The Third Circuit reversed the district court and remanded the case for further development of the claims and theories of the parties. Since the denial of the motion to strike put the district court in this case in that position, a simple affirmance is all that is necessary. Following Cipollone, we hold that the district court properly denied the motion to strike. Precisely how the preemption defense plays into the various claims of the plaintiff can only be worked out after further procedures in the district court.
AFFIRMED.
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Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (U.S. 1992)…roup, Inc., 789 F. 2d 181 (CA3 1986). Other federal courts have adopted a similar analysis. See Pennington v. Vistron Corp., 876 F. 2d 414 (CA5 1989); Roysdon v. R. J. Reynolds Tobacco Co., 849 F. 2d 230 (CA6 1988); Stephen v. American Brands, Inc., 825 F. 2d 312 (CA11 1987); Palmer v. Liggett Group, Inc., 825 F. 2d 620 (CA1 1987). Dewey v. R. J. Reynolds Tobacco Co., 121 N. J. 69, 677 A. 2d 1239 (1990) (holding that the Cigarette Act does not pre-empt plaintiff’s failure-to-warn and misrepresentation claim…
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Taylor v. Gen. Motors Corp., 875 F.2d 816 (11th Cir. 1989)…r State [*825] action having the effect of law”). The absence of such an explicit reference to state common law in the Safety Act’s preemption clause therefore counsels against a finding of express preemption. See Stephen v. American Brands, Inc., 825 F. 2d 312, 313 (11th Cir.1987) (adopting decision and reasoning of Cipollone v. Liggett Group, Inc., 789 F. 2d 181, 185-86 (3d Cir.1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987), which held that failure of preemptive language in fede…1 / 3
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Kotler v. The Am. Tobacco Co., 926 F.2d 1217 (1st Cir. 1990)…nce will equally be tipped by state tort claims that posit improper advertising as undermining the adequacy of federally mandated warnings. Accord Pennington v. Vistron Corp., 876 F. 2d 414, 421 n. 9 (5th Cir.1989); Stephen v. American Brands, Inc., 825 F. 2d 312, 313 (11th Cir.1987) (per curiam); Cipollone v. Liggett Group, Inc., 789 F. 2d 181, 187 (3d Cir.1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987). At bottom, appellant’s misrepresentation claims are just another species of sta…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hines v. Davidowitz, 312 U.S. 52 (U.S. 1941)
- Rice v. Santa FE Elevator Corp., 331 U.S. 218 (U.S. 1947)
- Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (U.S. 1963)
- Jones v. Rath Packing Co., 430 U.S. 519 (U.S. 1977)
- Fid. Fed. Sav. & Loan Ass'n v. DE LA Cuesta, 458 U.S. 141 (U.S. 1982)
- Silkwood v. Kerr-McGEE Corp., 464 U.S. 238 (U.S. 1984)
- Cipollone v. Liggett Grp., Inc., 789 F.2d 181 (3d Cir. 1986)