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MILLER v. BROWN & WILLIAMSON TOBACCO CORP.

February 9, 1988

Gisela Miller, Administratrix of the Estate of Colton L. Miller, Deceased and Gisela Miller, Individually
v.
Brown & Williamson Tobacco Corporation and Lorillard, Inc.



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 Presently before the court is defendants Brown & Williamson Tobacco Corporation and Lorillard, Inc.'s renewed motion for summary judgment. For the reasons stated herein, defendants' renewed motion for summary judgment will be granted.

 On October 8, 1986, plaintiff Gisela Miller ("plaintiff") filed the above-captioned action alleging that her husband died on June 5, 1985, at the age of twenty-eight (28), as a result of smoking cigarettes manufactured or promoted by defendants Brown & Williamson Tobacco Corporation ("Brown & Williamson"), Lorillard, Inc. ("Lorillard"), and The Tobacco Institute ("the TI").

 According to plaintiff, the decedent began smoking cigarettes when he was about sixteen (16) years of age and smoked half of a package a day on average for nearly twelve (12) years. Plaintiff's Pretrial Memorandum at 3. He began smoking no earlier than 1973, which was more than seven (7) years after the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. ยง 1331, et seq. ("the Cigarette Labeling Act"), mandated uniform, Congressionally-drafted health warnings on each package of cigarettes.

 On March 12, 1987, defendants moved for summary judgment on the ground that all counts of the Complaint are preempted by federal law, including the Cigarette Labeling Act as interpreted by the United States Court of Appeals for the Third Circuit in Cipollone v. Liggett Group, Inc., 789 F.2d 181, motion to vacate denied, 802 F.2d 658 (3d Cir. 1986), cert. denied, 479 U.S. 1043, 107 S. Ct. 907, 93 L. Ed. 2d 857 (1987). On July 21, 1987, based upon the Third Circuit's holding in Cipollone, the court granted summary judgment against plaintiff and in favor of defendants on Counts II, III and IV of plaintiff's Complaint. *fn1"

 The court notes that Count V does not state a separate basis for liability but merely alleges causation and damages and therefore should not be treated as a separate count.

 The court denied, without prejudice to renew, defendants' motion for summary judgment as to Count I of plaintiff's Complaint. Now before the court is defendants' renewed motion for summary judgment as to Count I.

 Count I of the Complaint is labelled "Strict Liability" and claims that the defendants' cigarettes were sold in a defective condition since: (1) ". . . the risks, dangers, addictive nature and harm to the plaintiff's decedent and other persons similarly situated were and are inherent in said Tobacco Products;" and (2) ". . . they were and are incapable of being made safe for their intended and ordinary use and purpose and in that the risk and danger created by the Tobacco Products is distinctly greater than their utility, such that the use of a warning would make no difference, and liability should attach to defendants for harm caused by the Tobacco Products which they put on the market." Complaint at 5.

 Because of developments in the law, and in the pleadings in this case, the court required plaintiff to state in her pretrial memorandum the specific theory of strict liability she was pursuing. The parties filed pretrial memoranda on August 10, 1987. In her pretrial statement plaintiff articulated her specific theory of strict liability as follows:

 
The manufacture and distribution of cigarettes by the defendants subjects them to products liability. Cigarettes are defective products as defined by Section 402A of the Restatement of Torts, as defined by case law. From a risk-utility analysis, the health risks (i.e., lung cancer) outweigh any benefits to society.

 Plaintiff's Pretrial Statement at 4. According to defendants' memorandum in support of their renewed motion for summary judgment, plaintiff's counsel amended this pretrial declaration by letter dated August 11, 1987, which attached a revised page 4 to plaintiff's pretrial statement, adding the following sentence:

 
In addition to the risk-utility analysis as set forth in Plaintiff's Complaint, plaintiff also claims that cigarettes are defectively designed in that ...

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