07C0834 Richardson v. R.J. Reynolds Tobacco Co.

Listen to this article

Torts
Tobacco; preemption

Strict liability claims against tobacco companies under Wisconsin law are not preempted by federal law.

"Claims such as plaintiff's do not interfere with the regulation of advertising and promotion of tobacco. Further, it is highly unlikely that such claims will lead to the destruction of the tobacco industry. Allowing common law claims does no more than place manufacturers of tobacco products in the same position as manufacturers of other legal products with known inherent risks. See Insolia v. Phillip Morris, Inc., 216 F.2d 596, 599 (7th Cir. 2000) (discussing a strict liability claim under Wisconsin law and noting that '[i]f the average consumer would reasonably anticipate the dangerous condition of the product and fully appreciate the attendant risk of injury, it would not be unreasonably dangerous and defective.'). State common law only affords a remedy to individuals who can establish that tobacco products rather than their own negligence or disregard of the inherent risks of tobacco caused them to suffer injuries. Cf. Cipollone, 505 U.S. at 512 (noting that at trial, the jury found the plaintiff to have 'voluntarily and unreasonably encountered a known danger by smoking cigarettes,' and to be eighty percent responsible for her own injuries, therefore, not entitled to damages); see also Sprietsma v. Mercury Marine, 537 U.S. 51, 64 (2002). Finally, the elimination of common law remedies would abrogate all judicial recourse for injured parties – including, for example, individuals injured by second-hand smoke. Congress is unlikely to create such dramatic consequences without discussing or even alluding to them. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251 (1984)."

Motion Denied.

07C0834 Richardson v. R.J. Reynolds Tobacco Co.

E.D.Wis., Adelman, J.

Full Text