Waterhouse v. R.J. Reynolds Tobacco Co. , 162 F. App'x 231 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1482
ROBERT WATERHOUSE,
Plaintiff - Appellant,
versus
R.J. REYNOLDS TOBACCO COMPANY; BROWN &
WILLIAMSON TOBACCO CORPORATION,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-
02-2446-PJM)
Argued: November 29, 2005 Decided: January 11, 2006
Before NIEMEYER, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: George Aubrey Harper, Upper Marlboro, Maryland, for
Appellant. Robert H. Klonoff, JONES DAY, Washington, D.C., for
Appellees. ON BRIEF: Joseph G. Finnerty, Jr., George F. Ritchie,
IV, DLA PIPER RUDNICK GRAY CARY US, L.L.P., Baltimore, Maryland,
for Appellee Brown & Williamson Tobacco Corporation; Paul R.
Reichert, JONES DAY, Washington, D.C., for Appellee R. J. Reynolds
Tobacco Company.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant Robert Waterhouse brought this action against Brown
& Williamson Tobacco Corporation and R.J. Reynolds Tobacco Company,
alleging that he developed lung cancer as a result of smoking
cigarettes manufactured and sold by the defendants. The district
court granted summary judgment to defendants. We affirm.
I.
The facts, recounted in the light most favorable to
Waterhouse, are as follows. Waterhouse began smoking in 1947, at
age 17, and smoked continuously until December 1984. He smoked
Lucky Strikes and Pall Mall cigarettes until the late 1950s to
early 1960s, both of which were manufactured and sold by Brown &
Williamson. He then switched to Winston cigarettes, manufactured
and sold by R.J. Reynolds. As noted by the district court,
Waterhouse was admittedly aware that cigarette smoking was
detrimental to his health. During his teenage years, a coach at
his high school had warned him about smoking and his parents were
opposed to his smoking. Throughout the period that he smoked,
various family members, friends, and physicians encouraged him to
quit for health reasons. And, he was admittedly aware of the
warning labels which were placed on cigarette packs beginning in
1966. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 513-14
(1992) (discussing various warning labels mandated by the Federal
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Cigarette Labeling and Advertising Act). However, Waterhouse did
not quit smoking until December 1984, when his son showed him
photographs of a smoker’s lungs.
On June 24, 1999, nearly fifteen years after he quit smoking
“cold turkey,” Waterhouse was diagnosed with lung cancer. Two
years later, he initiated this action in Maryland state court,
alleging that the cancer was caused by his 37-year history of
smoking the defendants’ cigarettes. Defendants removed the case to
federal district court based on diversity of citizenship. On June
3, 2003, the district court granted in part and denied in part
defendants’ Rule 12(b)(6) motion. See Waterhouse v. R.J. Reynolds
Tobacco Co., 270 F. Supp. 2d 678 (D. Md. 2003).
Following discovery, defendants moved for summary judgment on
Waterhouse’s remaining claims of pre-1969 negligence and strict
liability for failure to warn.* Following a hearing, the district
court held that defendants had presented evidence that the health
risks of smoking were common knowledge during the years that
Waterhouse smoked, which Waterhouse had failed to refute by
*
Waterhouse’s original complaint set forth claims of
negligence, strict liability, false representation, deceit and
fraudulent concealment, civil conspiracy, breach of express
warranty, intentional false and misleading advertising, and
punitive damages. On defendant’s Rule 12(b)(6) motion in 2003, the
district court had ruled that Waterhouse’s post-July 1, 1969
negligence claim based on failure to warn was preempted by the
Cigarette Labeling Act. See Waterhouse, 270 F. Supp. 2d at 683.
Waterhouse later conceded that he could not pursue the fraudulent
misrepresentation and conspiracy claims, and abandoned his design
defect claims at the summary judgment stage.
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sufficient evidence to the contrary, and that, even if a duty to
warn existed, Waterhouse had failed to present sufficient evidence
that a failure to warn proximately caused his injuries. See
Waterhouse v. R.J. Reynolds Tobacco Co., 368 F. Supp. 2d 432 (D.
Md. 2005).
II.
We review the district court’s grant of summary judgment se
novo, see Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162,
1167 (4th Cir. 1988), construing the evidence in the light most
favorable to the nonmoving party and drawing all reasonable
inferences in Waterhouse’s favor, see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The standard for granting summary
judgment is well settled. Summary judgment should be granted only
“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 any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “The party seeking summary judgment has the initial burden
to show absence of evidence to support the nonmoving party’s case.”
Nguyen v. CNA Corp., 44 F.3d 234, 237 (4th Cir. 1995) (internal
quotation marks omitted). Once he has done so, the nonmoving party
“may not rest upon mere allegations or denials,” id. (internal
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quotation marks omitted), but must “go beyond the pleadings and by
[his] own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’” Celotex, 477
U.S. at 324.
Under Maryland law, sellers are strictly liable for physical
harm caused by a product “in a defective condition unreasonably
dangerous to the user.” Restatement (Second) of Torts § 402A
(1965). Under the consumer expectation test, however, a product is
“unreasonably dangerous” only if it is “dangerous to an extent
beyond that which would be contemplated by the ordinary consumer
who purchases it, with the ordinary knowledge common to the
community as to its characteristics.” Id., cmt. I; see Phipps v.
General Motors Corp, 363 A.2d 955, 963 (Md. 1976) (noting that
Maryland has adopted the strict liability principles of § 402A of
the Restatement (Second) of Torts). Similarly, a manufacturer or
seller of a product cannot be held liable under a negligent
failure-to-warn claim if the danger of the product was obvious to
the consumer. See Mazda Motor of Am., Inc. v. Rogowski, 659 A.2d
391, 397 (Md. App. 1995) (noting that there is no duty to warn of
obvious or commonly-known dangers).
In this case, defendants presented an expert opinion by Robert
J. Norrell, Ph.D., a historian with the University of Tennessee.
Dr. Norrell conducted research into the question of public
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awareness throughout the twentieth century about the health risks
of smoking. He concluded that “between 1947 and 1969 there was
widespread common knowledge among ordinary people that cigarette
smoking could cause serious life-threatening diseases.”
Waterhouse, 368 F. Supp. 2d at 436.
In response, Waterhouse offered the affidavit of Allan
Feingold, M.D., a pulmonologist, who stated that “most smokers did
not have a real understanding of the risk of cigarette smoking”
during these years. Id. (internal quotation marks omitted). The
district court, however, ruled that Dr. Feingold, in contrast to
Dr. Norell, “reache[d] his conclusion without establishing what his
mode of historical analysis is or whether that mode is generally
considered reliable or acceptable,” “failed to demonstrate his
competence to offer an opinion in the matter,” and, by his own
admission, “ha[d] no education or experience in polling, surveying,
or otherwise assembling data upon which historians or other experts
base opinions regarding public awareness.” Id. at 436-37.
Accordingly, the court concluded that Waterhouse’s evidence was
insufficient.
Under the circumstances, we are constrained to agree that
Waterhouse failed to offer sufficient and competent evidence to
contradict the defendants’ assertion that the dangers of smoking
were commonly known. Waterhouse therefore failed to create a
genuine issue of fact sufficient to survive summary judgment.
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We likewise reject Waterhouse’s contention that the district
court erred in granting summary judgment for defendants based upon
plaintiff’s failure to prove that the lack of a warning prior to
July 1, 1969, proximately caused his lung cancer. In order to
establish a failure-to-warn claim under Maryland law, Waterhouse
was required to present evidence “to prove not only that [he] would
have read, understood, and remembered the warning, but also that
[he] would have altered [his] conduct to avoid the injury.” Eagle-
Picher Indus., Inc. v. Balbos, 604 A.2d 445, 468 (Md. 1992)
(internal quotation marks omitted). There is a presumption in
strict liability cases that a plaintiff would have read and heeded
an adequate warning if it had been given. See id. at 469.
However, the presumption may be rebutted where there is “evidence
that the personalities or dispositions of the [plaintiffs] were
such that they clearly would have ignored warnings.” Id.
In light of Waterhouse’s admissions regarding his knowledge of
the ill-effects of smoking cigarettes, the district court held that
Waterhouse had failed to forecast sufficient evidence from which a
jury could find a causal connection between any failure to warn and
his subsequent development of lung cancer. On appeal, Waterhouse
points to his affidavit, filed after his deposition and in response
to the defendants’ motion for summary judgment. In that affidavit,
Waterhouse averred that he “did not learn that smoking causes lung
cancer until 1965, when Nat King Cole died of lung cancer caused by
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cigarette smoking,” and that “[i]f [he] had known that cigarette
smoking could cause lung cancer, [he] would have never begun
smoking.” J.A. 209.
The district court rejected the claim that this “late-
conceived affidavit” was sufficient to create a genuine issue of
material fact on the issue of causation, see Waterhouse, 368 F.
Supp. 2d at 438 (holding that Waterhouse “cannot generate a genuine
issue of material fact by making statements in an affidavit that
directly contradict his sworn deposition testimony given in the
case”) (citing Rohrbough v. Wyeth Lab., Inc., 916 F.2d 970, 975
(4th Cir. 1990)), and ruled that, by Waterhouse’s own admissions,
the presumption that Waterhouse would have read and heeded an
adequate warning if it had been given, had been rebutted.
Having reviewed the record and the district court’s opinion,
we find no reversible error. Because no reasonable juror could
find that defendants’ alleged failure to warn of the hazards of
smoking proximately caused Waterhouse’s lung cancer and other
injuries, we affirm the grant of summary judgment on this basis as
well.
III.
For the foregoing reasons, the judgment of the district court
is hereby affirmed.
AFFIRMED
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