Opinion
Civil Action No. 3:99-CV-2125-G
February 29, 2000
MEMORANDUM ORDER
Before the court is the motion of the defendant, Philip Morris Incorporated ("Philip Morris"), for judgment on the pleadings. For the reasons discussed below, the motion is granted.
I. BACKGROUND
The plaintiffs, Wanda Cornelius, Samuel Cornelius, Mary Cornelius, and Erica Cornelius (collectively, the "plaintiffs"), bring claims in this case for personal injury and wrongful death, alleging that Philip Morris caused Robert C. Cornelius to become psychologically and physiologically dependent on the nicotine found in cigarettes. See Complaint ¶¶ 15-53. This addiction, the plaintiffs contend, caused Robert C. Cornelius to develop the lung disease which ultimately took his life. Complaint ¶ 42. Maintaining that Texas law bars the plaintiffs' claims, Philip Morris brings this motion for judgment on the pleadings.
II. ANALYSIS A. Legal Standard
"After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." FED. R. CIV. P. 12(c). When ruling on such a motion, the court must regard allegations of fact in the complaint as true. See Cash v. Commissioner of Internal Revenue, 580 F.2d 152, 154 (5th Cir. 1978). The court may enter judgment on the pleadings only if the material facts show that the movant is entitled to prevail as a matter of law. See Greenberg v. General Mills Fun Group, Inc., 478 F.2d 254, 256 (5th Cir. 1973). This standard is roughly equivalent to that applied on a motion under Rule 12(b)(6) to dismiss for failure to state a claim. See 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 1367 (1990); see also St. Paul Insurance Company of Bellaire, Texas v. AFIA Worldwide Insurance Company, 937 F.2d 274, 279 (5th Cir. 1991).
B. Choice of Law
Because jurisdiction over this action is based on diversity of citizenship, this Court is bound to apply the substantive law of the State of Texas. Erie Railroad Company v. Tomkins, 304 U.S. 64, 78 (1938); Rogers v. Corrosion Products, Inc., 42 F.3d 292, 295 (5th Cir.), cert. denied, 515 U.S. 1160 (1995). Further, this court must apply the state law as it currently exists, and may not change that law or adopt innovative theories of recovery. See Solomon v. Walgreen Co., 975 F.2d 1086, 1089 (5th Cir. 1992) (per curiam).
In ascertaining the law of the forum state, a federal court "is bound to apply the law as interpreted by the state's highest court." Texas Department of Housing Community Affairs v. Verex Assurance, Inc., 68 F.3d 922, 928 (5th Cir. 1995) (quoting Ladue v. Chevron U.S.A., Inc., 920 F.2d 272, 274 (5th Cir. 1991)). "When there is no ruling by the state's highest court, it is the duty of the federal court to determine as best it can, what the highest court of the state would decide." Batts v. Tow-Motor Forklift Company, 66 F.3d 743, 749 (5th Cir. 1995), cert. denied, 517 U.S. 1221 (1996).
It is well established that a district court sitting in diversity is generally bound by the state law interpretations of its circuit court. Batts, 66 F.3d at 747; Mygsa, S.A. De C.V. v. Howard Industries, Inc., 879 F. Supp. 624, 627 (S.D. Miss. 1995) ("When the Mississippi Supreme Court has not spoken on an issue of state law, this Court is bound to follow the Fifth Circuit interpretation of state law."). Fifth Circuit precedents containing Erie predictions bind this court unless "a subsequent state court decision or statutory amendment . . . render[s] [the Fifth Circuit's] prior decision clearly wrong." Batts, 66 F.3d at 747.
C. Statutory Bar
Texas statutory law protects a manufacturer or seller from products liability actions if:
(1) the product is inherently unsafe and the product is known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community; and
(2) the product is a common consumer product intended for personal consumption, such as sugar, castor oil, alcohol, tobacco, and butter, as identified in Comment i to Section 402A of the Restatement (Second) of Torts.
TEX. CIV. PRAC. REM. CODE ANN. § 82.004(a) (Vernon 1997). Relying on this statute, Philip Morris argues that the plaintiffs' claims are statutorily barred. In response, the plaintiffs make two arguments.
First, the plaintiffs contend that the section 82.004 bar is inapplicable to their case because they have filed claims based on a theory of assault — and not products liability. The court disagrees. At the same time it adopted section 82.004, the Texas legislature defined the term "products liability action" as
any action against a manufacturer or seller for recovery of damages arising out of personal injury, death, or property damage allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories.
TEX. CIV. PRAC. REM. CODE ANN. § 82.001(2) (Vernon 1997). Here, the plaintiffs' assault claims, which allege that cigarettes manufactured by Philip Morris caused Robert Cornelius's dependence upon nicotine, dearly fall within this broad definition. See Sanchez v. Liggett Myers, Inc., 187 F.3d 486, 491 (5th Cir. 1999), reh'g en banc denied, 196 F.3d 1259 (Sept. 21, 1999) (holding that actions for fraud, conspiracy, and violations of the Texas Deceptive Trade Practices Act arising out of a wrongful death claim based on smoking cigarettes fall within the definition of "products liability action" found in section 82.001(2)); Hulsey v. American Brands, Inc., No. C-97-003, 1997 WL 271755 at *5 (S.D. Tex. Apr. 7, 1997), aff'd, 139 F.3d 898 (5th Cir.) (table), cert. denied, ___ U.S. ___, 119 S.Ct. 162 (1998) (holding that "the terms `products liability action' as defined by § 82.001" included claims substantially similar to those presented in this case). Therefore, the plaintiffs' claims are considered "products liability actions" under section 82.004, and if they satisfy the two part test found in that statute, they will be barred.
Next, the plaintiffs argue that because the addictive properties of nicotine are not — as a matter of law — common knowledge in Texas, Philip Morris has failed, as a matter of law, to satisfy subsection (1) of 82.001(a) and thus is not entitled to judgment on the pleadings. A few months ago, however, the Fifth Circuit held otherwise. The plaintiffs in Sanchez brought suit alleging, inter alia, that a cigarette manufacturer failed to warn consumers of the addictive effect of tobacco use. See Sanchez, 187 F.3d at 490. The Fifth Circuit, because it believed that section 82.001 and the legislative history behind it provided no distinction between knowledge of the health dangers associated with smoking and knowledge of its addictive effects, and because the Texas Supreme Court had previously held that, as a matter of law, the community had knowledge of smoking's health dangers, concluded that the plaintiff's claims based on addiction were, as a matter of law, within the purview of section 82.004 (a). See Sanchez, 187 F.3d at 490-91 (citing Allgood v. R.J. Reynolds Tobacco Company, 80 F.3d 168, 172 (5th Cir. 1996)). In this case, all of the plaintiff's claims are — like the claims in Sanchez — premised on the addictive effects of nicotine. Thus, these claims are — like those in Sanchez — covered by section 82.004. And although the plaintiffs vociferously argue that Sanchez was wrongly decided, this court is bound by that decision. See Batts, 66 F.3d at 747 (holding that a district court sitting in diversity is generally bound by the state law interpretations of its circuit court). Accordingly, the plaintiffs' claims are barred by section 82.001 of the Texas Civil Practices and Remedies Code.
See Plaintiffs' Brief in Support of Plaintiffs' Response to Defendant's Rule 12(c) Motion ¶¶ 16-29; 40-45.
D. Open Courts Provision
Finally, the plaintiffs contend that even if section 82.001 bars their claims, the statute is a violation of the open courts provision of the Texas Constitution. The plaintiffs face a heavy burden on this issue, however, since, under Texas law, statutes are presumed constitutional and must be construed in such a way as to uphold their validity. See Nootsie, Ltd. v. Williamson County Appraisal District, 925 S.W.2d 659, 662 (Tex. 1996).
Article 1, Section 13 of the Texas Constitution provides, in part, that "All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law" (Vernon 1997). This state constitutional provision is often referred to as the "open courts provision," and courts construe it to restrict the legislature's ability to withdraw, unreasonably or arbitrarily, all legal remedies from one having a cause of action that is well-established at common law. See Travelers Indemnity Company of Illinois v. Fuller, 892 S.W.2d 848, 853 (Tex. 1995). To establish a violation of rights protected by the open courts provision, the plaintiffs must show that: (1) they have a well-recognized common-law cause of action; (2) the restriction of the cause of action is unreasonable or arbitrary when balanced against the legislature's purpose in enacting the statute; and (3) that the legislature failed to leave open a reasonable alternative. See Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex. 1997).
The first issue this court must address, then, is whether the plaintiffs' claims are well-recognized at common law. They are not. At common law, no personal injury cause of action survived to a deceased tort victim's heirs, and the heirs had no claim for their own losses resulting from the tortious act. See Kramer v. Lewisville Memorial Hospital, 858 S.W.2d 397, 403 (Tex. 1993); Rose v. Doctors Hospital, 801 S.W.2d 841, 845 (Tex. 1990); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355-56 n. 7 (Tex. 1990). Thus, the plaintiffs, who bring only wrongful death or survivors claims in this case, cannot — as a matter of law — establish the first element in proving an open courts doctrine violation.
In their brief, the plaintiffs rely on Martin v. Catterson, 981 S.W.2d 222 (Tex.App.-Houston [1st Dist.] 1998), writ denied, 2 S.W.3d 249 (1999), which held that common law claims filed by a living plaintiff do not lose open courts protection if the plaintiff dies during the pendency of the suit, even if the suit is amended to assert statutory claims such as wrongful death and survivorship. See id. at 226. That case is distinguishable, however, because here the plaintiffs originally brought wrongful death and survival claims. This case is thus more akin to the Supreme Court decisions in Kramer, Rose, and Moreno, above — cases in which only wrongful death and survival claims were brought from the beginning — than it is to Martin.
III. CONCLUSION
Because section 82.004 of the Texas Civil Practices and Remedies Code bars the plaintiffs' claims as a matter of law and because that section comports with the Texas Constitution, Philip Morris is entitled to judgment on the pleadings. Accordingly, the defendant's motion is GRANTED.SO ORDERED.