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April 4, 2003


The opinion of the court was delivered by: Matthew F. Kennelly, United States District Judge


Maria DeLuca, the administrator of the estate of her late husband, Joseph DeLuca, maintains this suit pursuant to the Illinois Wrongful Death Act, 740 ILCS 180/1, and Illinois' survival statute, 755 ILCS 5/27-6. Her amended complaint asserts claims of negligence and strict products liability based on defendants' manufacture and sale of cigarettes that, plaintiff alleges, caused the illness and death of Joseph DeLuca. Defendants have moved for summary judgment. For the reasons stated below, the Court grants defendants' motions.


Joseph DeLuca was diagnosed with terminal lung cancer in June 2000; he died six months later in December at the age of seventy. Mr. DeLuca smoked cigarettes for most of his life; he began smoking in his native Italy around 1946, when he was sixteen years old. Around 1965, Joseph moved to Canada, where he resided for approximately two years. In 1967, he relocated again, this time to the United States. At the time of his diagnosis, he was smoking about four packs of cigarettes a day. Joseph stopped smoking for a six-month period in 1976 and for shorter periods on other occasions. On November 29, 2000, he filed this lawsuit against defendants Liggett & Myers, Inc., Philip Morris USA, Inc., R.J. Reynolds Tobacco Co., and Lorillard Tobacco Co., alleging that he developed lung cancer as a result of smoking cigarettes manufactured and sold by them. Sadly, Mr. DeLuca did not live to see the outcome of this suit; he passed away two days before he was scheduled to give a video-taped evidence deposition to preserve his testimony. Upon her husband's death, Maria DeLuca, the administrator of Joseph's estate, replaced him as the plaintiff in this case and filed an amended complaint. We will refer to the plaintiff as "DeLuca" except where necessary to distinguish between Mr. and Mrs. DeLuca.


Summary judgment is proper only if the affidavits and other evidentiary materials submitted by the parties show "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, the nonmovant's evidence "is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Supreme Court has stated that Rule 56(c) mandates the entry of summary judgment when, "after adequate time for discovery," the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 321 (1986). Even when certain facts are genuinely disputed, a "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

DeLuca alleges that defendants were negligent in the following ways: (1) by failing to warn or notify consumers of cigarettes' dangerous effects and addictive quality; (2) by manipulating the nicotine levels in cigarettes to ensure that consumers would remain addicted; (3) by misrepresenting to consumers, through false advertisements, that cigarettes are actually reasonably safe; and (4) by putting into the stream of commerce an unreasonably dangerous product. DeLuca's strict liability claims allege that defendants manufactured and sold unreasonably dangerous products in that they contained a design defect and did not contain a warning as to the dangerousness and addictive quality of cigarettes.

A. Claims Based on a Failure to Warn

Defendants argue that DeLuca's claims that relate to the adequacy of the warnings and disclosures on their cigarette packages are preempted by the Federal Cigarette Labeling and Advertising Act (Labeling Act), 15 U.S.C. § 1331-41, as amended by the Public Health Cigarette Smoking Act of 1969, Pub.L. No. 91-222, 84 Stat. 87. The Labeling Act represents a "comprehensive federal scheme governing the advertising and promotion of cigarettes." Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001). Section 1331 lays out the Labeling Act's purpose:

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 about any adverse health effects of cigarette smoking by inclusion of warning notices on each package of cigarettes and in each advertisement 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, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.
15 U.S.C. § 1331. The Labeling Act accomplishes the twin goals of informing consumers of the health risks of smoking and protecting the national economy by requiring specific warnings on cigarette packages and advertisements, see id. § 1333, and by prohibiting states from imposing their own warning regulations on cigarette manufacturers. Lorillard, 533 U.S. at 542-43. The Labeling Act's preemption provision provides:

(a) Additional statements

No statement relating to smoking and health, other than statement required by section 1333 of this title, shall be required on any cigarette package.
(b) State regulations
No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.
Id. § 1334. This preemption provision "unequivocally precludes the requirement of any additional statements on cigarette packages beyond those provided" by the Act. Lorillard, 533 U.S. at 542. It also expressly precludes states from "imposing any requirement or prohibition based on smoking and health with respect to the advertising and promotion of cigarettes." Id.

In Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), the Supreme Court stated that to determine whether the Labeling Act preempts a common law claim, "we ask whether the legal duty that is the predicate of the common-law damages action constitutes a `requirement or prohibition based on smoking and health . . . imposed under State law with respect to . . . advertising or promotion,' giving that clause a fair but narrow reading." Id. at 524 (plurality opinion) (quoting § 1334) (alterations in original). The Court also instructed that each of the plaintiff's common law claims must be examined individually to determine whether it is in fact preempted. Insofar as DeLuca's claims "require a showing that [defendants'] post-1969 advertising or promotions should have included additional, or more clearly stated, warnings, those claims are pre-empted." Id.

In the amended complaint, DeLuca alleges that defendants "failed to notify" consumers of cigarettes' dangerous effects and addictive qualities and that defendants manufactured and sold cigarettes "without adequate warning" to this effect. She does not allege that the packages containing the cigarettes Joseph smoked after 1969 omitted the federally mandated warnings specified in Section 1333 of the Act. Thus DeLuca's claims are undeniably predicated on an alleged obligation to warn of the health risks associated with smoking above and beyond that imposed by the Labeling Act. The imposition of such obligations is precisely what the Act's preemption provision precludes; it is only by way of packaging or other promotional materials that defendants communicate directly with the public generally, and purchasers of cigarettes in particular. Cf. Miles v. S.C. Johnson & Son, Inc., No. 00 C 3278, 2002 WL 31655188, at *7 (N.D.Ill. Nov. 25, 2002) (observing that the only way manufacturers of a cleaning substance could instruct or warn consumers was "by printing the information on the container or in accompanying literature"). DeLuca's negligence and strict products liability claims based on a failure to warn and a failure to notify are therefore preempted.

DeLuca attempts to breath life into these claims by stating that they are actually predicated on theories of fraudulent concealment and fraudulent misrepresentation. Even if, however, we analyze her claims accordingly, they are preempted, with the exception of her pre-1969 claims against Liggett & Myers.

The Court concludes that the Labeling Act preempts DeLuca's claim of fraudulent concealment to the extent it is based on defendants' failure to reveal the full extent of cigarettes' harmful effects. Cipollone, though not a model of clarity in this respect, bars a fraudulent concealment claim of this type. No opinion in Cipollone garnered a majority on the question of how preemption applied to specific types of claims. Justice Stevens' plurality opinion was joined by three other justices. Justice Blackmun's concurring/dissenting opinion, joined by two other justices, concluded that the Labeling Act did not preempt any of the plaintiff's claims. Cipollone, 505 U.S. at 531-44 (Blackmun, J., concurring in part and dissenting in part). Justice Scalia's concurring/dissenting opinion, joined by one other justice, concluded that the Labeling Act preempted all of the plaintiff's claims. Id. at 544-56 (Scalia, J., concurring in the judgment in part and dissenting in part). Though, as an original matter, the authoritativeness of Justice Stevens' plurality opinion is not entirely clear, courts have ...

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