Rivera v. Philip Morris, Inc. , 395 F.3d 1142 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE RIVERA, individually and as 
Guardian ad Litem for Joseph
Rivera, V, and Jenica Rivera,
minors, and Joe Rivera as Special
No. 03-16100
Administrator to the Estate of
Pamela Rivera,
Plaintiff-Appellant,
 D.C. No.
CV-01-00601-JCM
v. OPINION
PHILIP MORRIS, INC., a Virginia
corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
December 10, 2004—San Francisco, California
Filed January 28, 2005
Before: Jerome Farris, Dorothy W. Nelson, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Farris
1187
RIVERA v. PHILIP MORRIS, INC. 1191
COUNSEL
Mark Johnson, Esq. and Sims Weymuller, Esq., Johnson-
Flora, PLLC, Seattle, Washington, for the plaintiff-appellant.
John P. Desmond, Esq., Jones Vargas, Reno, Nevada, Daniel
P. Collins, Esq., Munger Tolles & Olson, Los Angeles, Cali-
fornia, for the defendant-appellee.
OPINION
FARRIS, Senior Circuit Judge:
Joe Rivera brought a wrongful death action against Philip
Morris Inc., a tobacco manufacturer, asserting state law
claims for strict product liability, fraud, and conspiracy. Sum-
mary judgment in favor of Philip Morris was granted. We
affirm in part and remand for further proceedings.
1192 RIVERA v. PHILIP MORRIS, INC.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
Joe Rivera initiated this action individually, as Guardian ad
Litem for his children and as executor of his deceased wife’s
estate. He filed suit in Nevada state court, alleging strict prod-
uct liability based on theories of failure-to-warn and design-
defect, fraud based on theories of both fraudulent conceal-
ment and fraudulent misrepresentation, and conspiracy. He
contended that his late wife, Pamela Rivera, smoked Marlboro
cigarettes manufactured by Philip Morris beginning in the
summer of 1969 until her death from lung cancer in 1999.
B. District Court Proceedings
This action was timely and properly removed from state to
federal court under diversity jurisdiction. The district court
subsequently granted summary judgment in favor of Philip
Morris, on grounds that (1) the strict product liability claim
was preempted by the Federal Cigarette Labeling and Adver-
tising Act of 1965, 15 U.S.C. §§ 1331 et seq., or alternatively,
as a matter of law, the claim failed under Nevada’s common
knowledge test; (2) the fraudulent concealment claim was pre-
empted by the same federal statute, or alternatively, evidence
was lacking that the decedent would have acted differently if
Philip Morris had disclosed material information concerning
the health effects of smoking; (3) the fraud claim was not pre-
empted under federal law but evidence was absent that the
decedent saw, heard, or read and relied upon any misrepresen-
tation by Philip Morris; and (4) the conspiracy claim neces-
sarily failed because it was a derivative of other underlying
claims. Rivera does not appeal the dismissal of his strict lia-
bility design-defect claim. He has not presented any argument
with regard to the dismissal of his conspiracy claim and has
therefore waived that issue on appeal.
RIVERA v. PHILIP MORRIS, INC. 1193
II. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo, constru-
ing the evidence in the light most favorable to the nonmoving
party. Lindsey v. Tacoma-Pierce County Health Dep’t, 195
F.3d 1065, 1068 (9th Cir. 1999). A grant of summary judg-
ment is appropriate only where the moving party has demon-
strated that there is no genuine issue of material fact. Id.
Material facts are those which might affect the outcome of the
suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is genuine if a reasonable trier of fact could
find in favor of the nonmoving party. Id. Once the moving
party demonstrates the absence of a genuine issue of material
fact, the nonmoving party that bears the ultimate burden at
trial must show that there is evidence creating a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-
25 (1986). A mere scintilla of evidence supporting the non-
moving party’s position is insufficient; there must be evidence
on which a jury could reasonably find for the nonmoving
party. Anderson, 477 U.S. at 252.
B. Federal Preemption
[1] As a threshold issue, we first determine whether any of
Rivera’s state law claims are preempted by federal law. Under
the Supremacy Clause of the United States Constitution, Con-
gress may preempt state common law as well as state statu-
tory law through federal legislation. U.S. CONST. art VI. § 2;
Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450
U.S. 311, 325-27 (1981). The district court concluded that
Rivera’s strict liability and fraudulent concealment claims
were preempted by the Federal Cigarette Labeling and Adver-
tising Act of 1965, as amended by the Public Health Cigarette
Smoking Act of 1969, because both claims necessarily
attacked the sufficiency of federally-mandated cigarette health
warnings.
1194 RIVERA v. PHILIP MORRIS, INC.
In 1965, Congress enacted the Federal Cigarette Labeling
and Advertising Act, which required all cigarette packages to
contain a warning that smoking was hazardous. The purpose
of the Labeling Act was to adequately inform the public of the
dangers associated with smoking cigarettes and to protect the
national economy from the burden imposed by diverse, non-
uniform, and confusing cigarette labeling and advertising reg-
ulations. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 514
(1992). A few years later, Congress passed the Public Health
Cigarette Smoking Act of 1969, which amended the Labeling
Act by including a preemption clause that states: “No require-
ment 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.” 15 U.S.C.
§ 1334(b).
In Cipollone, the Supreme Court addressed preemption as
applied to several state common law claims against cigarette
manufacturers. In interpreting the preemption provision, a
four-member plurality of the Court found that the Labeling
Act’s broad language preempted some, but not all, common
law claims. Cipollone, 505 U.S. at 520-21. To determine
whether a particular common law claim fell within the
express preemption clause, the plurality performed the follow-
ing “central inquiry”: “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 523-24. Applying this test, four Justices agreed that the
Labeling Act preempted the petitioner’s failure-to-warn
claims “insofar as claims under . . . [a] failure-to-warn theory
require a showing that . . . post-1969 advertising or promo-
tions should have included additional, or more clearly stated,
warnings . . . .” Id.
[2] As to the claims before us, a majority of the Court,
including two dissenting Justices, agreed that failure-to-warn
RIVERA v. PHILIP MORRIS, INC. 1195
claims based on allegations that post-1969 advertising or pro-
motional materials should have included additional, or more
clearly stated, warnings are preempted by the Labeling Act.
However, a plurality of the Court found that certain claims
were not preempted, including (1) failure-to-warn claims
based solely on negligent testing, research practices, or other
actions unrelated to advertising or promotion, (2) fraudulent
concealment claims based on a state-law duty to disclose
material facts through channels other than advertising or pro-
motion (e.g., state agency), (3) misrepresentation claims
based on false statements of material fact made in advertising,
and (4) conspiracy to misrepresent material facts, provided a
claim for misrepresentation can be maintained.
(1) Strict Liability Failure-to-Warn Claim
The plaintiff advances two arguments to save his strict lia-
bility claim from the preemptive effect of the Labeling Act’s
Section 1334(b) and the Supreme Court’s holding in Cipol-
lone: (1) that Cipollone is not binding authority and may be
disregarded by this Court, and (2) even if Cipollone is bind-
ing, his failure-to-warn claim still survives because it is not
based on “advertising or promotion.”
Although courts are not bound to follow the preemption
test adopted by the four-Justice plurality opinion, other fed-
eral courts of appeal have applied the holding in Cipollone as
binding precedent. See, e.g., Spain v. Brown & Williamson
Tobacco Corp., 363 F.3d 1183 (11th Cir. 2004); Glassner v.
R.J. Reynolds Tobacco Co., 223 F.3d 343 (6th Cir. 2000);
Philip Morris, Inc. v. Harshbarger, 122 F.3d 58 (1st Cir.
1997); Michael v. Shiley, Inc., 46 F.3d 1316 (3d Cir. 1995),
overruled on other grounds, Medtronic, Inc. v. Lohr, 518 U.S.
470, 492 (1996); MacDonald v. Monsanto Co., 27 F.3d 1021
(5th Cir. 1994). Additionally, we have repeatedly relied upon
Cipollone in our jurisprudence. See, e.g., Lindsey, 195 F.3d at
1069 (interpreting and relying upon Cipollone in holding a
ban on outdoor tobacco advertising preempted); Harris v.
1196 RIVERA v. PHILIP MORRIS, INC.
Ford Motor Co., 110 F.3d 1410, 1413 (9th Cir. 1997) (relied
on plurality opinion in Cipollone in determining that product
liability claim was preempted); Taylor AG Indus. v. Pure-
Gro, 54 F.3d 555, 560 (9th Cir. 1995) (recognizing that “[w]e
look to Cipollone for guidance in order to determine whether
Appellants’ failure to warn claim is preempted”).
[3] Looking to Cipollone for guidance we must conclude
that Rivera’s failure-to-warn claim is not preempted by the
Labeling Act. A claim is expressly preempted if the predicate
duty underlying the claim constitutes: (1) a requirement or
prohibition, (2) based on smoking and health, (3) imposed
under state law, (4) with respect to the advertising or promo-
tion of cigarettes. Cipollone, 505 U.S. at 523-24. Rivera
asserts that Philip Morris failed in its duty to warn consumers
about the dangers of using its product, including the addictive
nature of nicotine, the manipulation of nicotine levels in ciga-
rettes, and the carcinogenic effect of smoking. According to
Rivera, the duty to warn about such information is unrelated
to “advertising or promotion.” His claim is based on Philip
Morris’ failure to employ non-promotional communications,
such as public service announcements, to adequately warn
consumers of the specific hazards of smoking. In support of
his claim, he introduced examples of so-called advocacy
statements by Philip Morris, including the purchase of news-
paper space for making public announcements and issuing
press releases.
Philip Morris counters that any claim that it should have
provided more information than was required on the federally
mandated warning labels necessarily challenges the adequacy
of those labels and is therefore preempted. See Papike v. Tam-
brands, Inc., 107 F.3d 737, 743 (9th Cir. 1997) (holding that
a failure to warn claim was preempted under the Medical
Devices Amendments to the Food, Drug & Cosmetic Act
because the claim involved, in part, mandating that the manu-
facturer of tampons add a variety of warning statements not
required by federal regulation); Taylor, 54 F.3d at 561 (hold-
RIVERA v. PHILIP MORRIS, INC. 1197
ing that claims that point-of-sale signs, consumer notices, and
other informational materials inadequately warned consumers
were preempted under the Federal Insecticide, Fungicide, and
Rodenticide Act because those claims challenged the ade-
quacy of EPA-approved and mandated warnings on the prod-
uct’s labeling and packaging).
[4] Rivera does not, though, challenge the warnings Philip
Morris actually gave pursuant to the Labeling Act. Rather, his
claim addresses smoking harms outside the Act’s reach, about
which Philip Morris gave no warnings at all, but could have,
through means other than advertising and promotion. His
claim is thus unlike the claims in Papike and Taylor, where
we held that plaintiffs’ failure-to-warn claims regarding
harms addressed in federally-regulated warning labels were
preempted because the claims were “premised ultimately
upon the inadequacy of the product label.” Taylor, 54 F.3d at
561. Rivera’s failure-to-warn claim is predicated on Nevada’s
common law duty that requires manufacturers to advise con-
sumers of their products’ dangers, a warning which is not nec-
essarily required to be given through advertising or
promotion. Since Nevada does not specify how manufacturers
should warn consumers, Rivera’s failure-to-warn claim is not
preempted as long as it (1) does not challenge a substantive
warning issued pursuant to the Act, and (2) is not based on
Philip Morris’ packaging, advertising, or promotional mate-
rial.
Philip Morris also relies on a line of cases which hold that
any claim requiring public release or disclosure of informa-
tion is necessarily related to advertising and promotion. John-
son v. Brown & Williamson Tobacco Corp., 122 F. Supp. 2d
194, 201 (D. Mass. 2000) (holding that any communication
from a cigarette manufacturer to the public constitutes “adver-
tising or promotion” under the Labeling Act); Sonnenreich v.
Philip Morris, Inc., 929 F. Supp. 416, 419 (S.D. Fla. 1996)
(holding that any attempt by cigarette manufacturers to notify
their customers of the dangers of smoking is the equivalent of
1198 RIVERA v. PHILIP MORRIS, INC.
an advertising or promotional campaign because the same
techniques are employed even though the goal is to discour-
age smoking); Lacey v. Lorillard Tobacco Co., 956 F. Supp.
956, 964 (N.D. Ala. 1997) (“[A] claim that the defendant has
a duty to disclose additional information concerning cigarette
ingredients unavoidably attacks defendants’ advertising and
promotion” and is inextricably related to smoking and health);
Griesenbeck v. Am. Tobacco Co., 897 F. Supp. 815, 823
(D.N.J. 1995) (“A company’s attempt to notify its mass mar-
ket of anything, whether a danger warning or a marketing
effort, is considered ‘advertising or promotion’ under the gen-
eral usage of those terms, and a state cannot impose require-
ments on such activities without running afoul of the clear
language of Cipollone.”).
This broad interpretation of the phrase “advertising or pro-
motion” does not comport with the language of Cipollone, nor
does it square with the language and legislative history of the
Labeling Act. By preserving some claims in Cipollone that
were based, in part, on the duty to communicate smoking and
health information to the public (e.g., the communicative
duties arising from voluntary activities and research activi-
ties), the plurality envisioned continued avenues for cigarette
manufacturers to perform those duties through means other
than the rigorously controlled avenues of advertising, promo-
tion, and packaging. See Harshbarger, 122 F.3d at 75-76
(viewing the broad constructions given to the phrase “adver-
tising and promotion” with “skepticism”). Further, a fair but
narrow reading of Section 1334(b) does not support the con-
clusion that the only method for a cigarette manufacturer to
communicate directly with the public in general, and smokers
in particular, is by way of packaging, advertising, and promo-
tional materials. If there were no other way for a manufacturer
to communicate with consumers regarding the dangers of
smoking, the limiting “advertising or promotion” phrase in
Section 1334(b) would be mere surplusage. Finally, as the
First Circuit has noted, the legislative history’s “repeated ref-
erences to the ‘narrow’ and ‘limited’ nature of the preemption
RIVERA v. PHILIP MORRIS, INC. 1199
provision,” also cut against the plausibility of the construction
we are urged to adopt. Id. at 76 (citing S. Rep. No. 91-566,
at 2663 (1970), reprinted in 1970 U.S.C.C.A.N. 2663).
[5] A trier of fact could find that Philip Morris had an obli-
gation to warn consumers of the health risks of smoking out-
side of packaging, advertising, and promoting. We conclude
that imposing such an obligation would be consistent with a
“fair but narrow” reading of the Labeling Act’s Section
1334(b) and the plurality’s decision in Cipollone. Further, the
rationale of those cases holding that public service announce-
ments, lobbying, seminars, or educational programs are neces-
sarily promotional is open to question under Cipollone.
(2) Fraudulent Concealment Claim
Rivera’s fraudulent concealment claim is not preempted for
similar reasons. Rivera alleges that Philip Morris engaged in
fraud by failing to disclose information relating to the addic-
tive qualities of smoking and the true nature and degree of the
health hazards associated with cigarettes through media unre-
lated to the advertising or promotion of cigarettes, such as the
industry-established Tobacco Industry Research Committee.
A plurality of the Supreme Court in Cipollone agreed that
fraudulent concealment claims escape preemption “insofar as
those claims rely on a state-law duty to disclose . . . [material]
facts through channels of communication other than advertis-
ing or promotion,” such as state statutes requiring a cigarette
manufacturer “to disclose material facts about smoking and
health to an administrative agency.” Cipollone, 505 U.S. at
528. The Supreme Court’s nonexclusive example of a hypo-
thetical state law mandating disclosure of health information
to a state agency does not preclude recognition of a duty to
disclose material facts which arises under Nevada’s common
law.
[6] The predicate of Rivera’s fraudulent concealment claim
is the general duty under Nevada law not to conceal state-
1200 RIVERA v. PHILIP MORRIS, INC.
ments of material fact. The separate channel through which
Philip Morris could communicate those facts was the TIRC,
which was established specifically to inform the public of the
health risks of tobacco use. Philip Morris’ duty to disclose
statements of material facts was imposed by state law and
unrelated to the advertising or promotion of cigarettes. Rive-
ra’s fraudulent concealment claim is not preempted.1
C. Rivera’s Substantive Claims
(1) Strict Liability Failure-to-Warn Claim
Having concluded that Rivera’s strict liability claim is not
preempted, we next determine whether his claim should have
survived summary judgment. Rivera appeals the dismissal of
his strict liability failure-to-warn claim, contending that the
district court erred in two ways: first, by taking judicial notice
of the fact that the dangers of smoking were commonly
known after 1969, the year that the federal government
strengthened the warning labels on cigarette packages and
Mrs. Rivera started smoking; and second, by holding, as a
matter of law, that after 1969 cigarettes were not unreason-
ably dangerous under Nevada law.
The parties agree that this strict product liability case is
governed by Nevada law. Nevada has adopted the strict liabil-
ity formula set forth in Section 402A of the Restatement (Sec-
ond) of Torts. See Forest v. E.I. DuPont de Nemours, & Co.,
791 F. Supp. 1460, 1464 (D. Nev. 1992) (“In light of
Nevada’s explicit recognition of Section 402A, particularly in
failure to warn cases, the court concludes that the Restatement
1
In Cipollone, the Supreme Court insinuated that “state law” does not
include legal duties imposed on voluntary acts. See Cipollone, 505 U.S.
at 528 n.24. Thus, if Philip Morris’ duty to disclose material facts
“through channels of communication other than advertising or promotion”
was voluntarily undertaken by the defendant, an action based on fraudu-
lent concealment would not be preempted.
RIVERA v. PHILIP MORRIS, INC. 1201
is authoritative in this jurisdiction.”); Stackiewicz v. Nissan
Motor Corp., 686 P.2d 925, 928 (Nev. 1984); Ward v. Ford
Motor Co., 657 P.2d 95, 96 (Nev. 1983). In Nevada, strict lia-
bility is imposed on anyone who sells a product in a defective
condition unreasonably dangerous to consumers. A product is
defective when it fails to perform “in the manner reasonably
to be expected in the light of its nature and intended func-
tion.” Ward, 657 P.2d at 96; see also Ginnis v. Mapes Hotel
Corp., 470 P.2d 135, 138 (Nev. 1970). A product may be con-
sidered unreasonably dangerous if consumers are inade-
quately warned of an anticipated danger posed by a product
of which the average consumer would not already be aware.
Yamaha Motor Co. v. Arnoult, 955 P.2d 661, 665 (Nev.
1998).
[7] To state a cause of action for strict product liability in
Nevada, Rivera must show that: (1) the product has a defect
which rendered it unreasonably dangerous, (2) the defect
existed at the time the product left the manufacturer, and (3)
the defect caused Mrs. Rivera’s injury. Fyssakis v. Knight
Equip. Corp., 826 P.2d 570, 571 (Nev. 1992). Under the
Restatement approach to strict liability, a product is consid-
ered unreasonably dangerous when it is “dangerous to an
extent beyond that which would be contemplated by the ordi-
nary consumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics.” Rest. (2d)
Torts § 402A cmt. i (1965) (emphasis added). This test explic-
itly incorporates the “common knowledge” doctrine, which
rests upon the premise that a product is not unreasonably dan-
gerous if everyone knows of its inherent dangers.
The district court took judicial notice of the fact that the
health risks and addictive nature of smoking have been com-
mon knowledge in Nevada and, as a matter of law, concluded
that cigarettes were not unreasonably dangerous. According to
Philip Morris, courts have repeatedly dismissed claims
brought by cigarette smokers because information regarding
the health risks of smoking, including addiction, have long
1202 RIVERA v. PHILIP MORRIS, INC.
been available to, and known by, the public. Philip Morris
argues that the district court correctly took judicial notice of
this past awareness and granted dismissal of Rivera’s strict
liability claim.
The Federal Rules of Evidence allow for judicial notice of
a fact that is “not subject to reasonable dispute in that it is
either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determina-
tion by resort to sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b). The notes of the advisory
committee with regard to Federal Rule of Evidence 201
explain that “[a] high degree of indisputability is the essential
prerequisite” to taking judicial notice of adjudicative facts and
that “the tradition [of taking judicial notice] has been one of
caution in requiring that the matter be beyond reasonable con-
troversy.” Fed. R. Evid. 201(a) & (b) advisory committee’s
notes. “Because the effect of judicial notice is to deprive a
party of an opportunity to use rebuttal evidence, cross-
examination, and argument to attack contrary evidence, cau-
tion must be used in determining that a fact is beyond contro-
versy under Rule 201(b).” Wright v. Brooke Group Ltd., 114
F. Supp. 2d 797, 816 (N.D. Iowa 2000).
[8] The Nevada courts have not determined whether the
common knowledge doctrine in the context of tobacco litiga-
tion would defeat Rivera’s strict liability claim as a matter of
law. We therefore “make a reasonable determination of the
results the highest state court would reach if it were deciding
the case.” Aetna Cas. & Sur. Co. v. Sheft, 989 F.2d 1105,
1108 (9th Cir. 1993). Would Nevada courts take judicial
notice of the fact that all the risks of smoking were commonly
known after 1969, four years after federal law first mandated
warning labels on cigarette packages and the same year those
warnings were strengthened, is the question. See, e.g., Hearn
v. R.J. Reynolds Tobacco Co., 279 F. Supp. 2d 1096, 1107 (D.
Ariz. 2003). “Other courts considering this very issue have
reached different results regarding when, if at all, assorted
RIVERA v. PHILIP MORRIS, INC. 1203
risks, namely general disease-related risks and risks of addic-
tion, associated with smoking became common knowledge.”
Wright, 114 F. Supp. 2d at 811.
Philip Morris urges us to hold, as a matter of law, that the
dangers of smoking were commonly known by 1969. In Guil-
beault v. R.J. Reynolds Tobacco Co., 84 F. Supp. 2d 263
(D.R.I. 2000), the court concluded:
[A]fter thoroughly reviewing the facts regarding the
evolution of the public’s knowledge of smoking-
related dangers, the Court is satisfied that it can take
judicial notice of the community’s common knowl-
edge of the general disease-related health risks asso-
ciated with smoking, including the risk of
contracting cancer, as of 1964.
Id. at 273. Several courts have also taken this approach and
held, as a matter of law, that by 1969 there was common
knowledge of the evils of smoking. See, e.g., Glassner, 223
F.3d at 351-52 (holding that plaintiff’s strict liability claims
were barred as a matter of law because, between the time
when the decedent began smoking in 1969 and when she died
in 1997, “there existed a widespread public awareness of the
health risks associated with smoking”); Allgood v. R.J. Reyn-
olds Tobacco Co., 80 F.3d 168, 172 (5th Cir. 1996); Roysdon
v. R.J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir.
1988) (applying common knowledge doctrine to affirm grant
of summary judgment to defendant on plaintiff’s product lia-
bility claims spanning 1974 to 1984); Hollar v. Philip Morris
Inc., 43 F. Supp. 2d 794, 807 (N.D. Ohio 1993) (dismissing
two plaintiffs’ product liability claims, who began smoking in
1968 and 1971 respectively).
Other courts deciding the issue have drawn a distinction
between common knowledge of the general health hazards of
smoking versus the common knowledge of specific illnesses
or injuries allegedly caused by smoking. For example, in
1204 RIVERA v. PHILIP MORRIS, INC.
Tompkin v. Am. Brands, 219 F.3d 566, 572 (6th Cir. 2000),
the Sixth Circuit reversed the district court’s grant of sum-
mary judgment in favor of the defendant tobacco companies,
holding that whether the dangers of smoking, namely the link
between smoking and lung cancer, were common knowledge
between 1950 and 1965 presented a question of fact for the
jury. In reaching this decision, the court expressly stated:
The pertinent issue here is not whether the public
knew that smoking was hazardous to health at some
undifferentiated level, but whether it knew of the
specific linkages between smoking and lung cancer.
Id. at 572. The court narrowed the common knowledge
inquiry to the question of whether the link between cigarette
smoking and lung cancer was common knowledge, not
merely whether the link between cigarette smoking and gen-
eral health maladies was common knowledge. The court
explained its reason for narrowing the inquiry:
It is one thing to be aware generally that a product
might have an attenuated and theoretical connection
with a deadly disease like lung cancer; it is another
altogether to comprehend that it is the cause of an
overwhelming majority of lung cancer cases. The
“common knowledge” requirement is emasculated if
a defendant may show merely that the public was
aware that a product presented health risks at some
vague, unspecified, and undifferentiated level.
Id. (internal citation omitted).
[9] The issue is unresolved in Nevada, but there is a basis
to conclude that Nevada courts would narrow the inquiry and
distinguish between knowing about general health risks of
smoking and knowing about specific risks, like lung cancer or
addiction, caused by tobacco products. See Allison v. Merck
& Co., Inc., 878 P.2d 948, 952-56 (Nev. 1994) (plurality
RIVERA v. PHILIP MORRIS, INC. 1205
opinion) (recognizing Nevada’s long-standing public policy
grounds for holding manufacturers and distributors of defec-
tive products responsible for injuries caused by the defective
products and rejecting the concept of “unavoidably unsafe
products” as an exception to the rules of strict liability). Such
an inquiry is a question of fact to be decided by a jury. See
Tompkin, 219 F.3d at 572. Rivera alleged that Philip Morris’
tobacco products proximately caused the decedent’s lung can-
cer. The common knowledge inquiry should have been nar-
rowed to whether the link between cigarette smoking and lung
cancer was common knowledge, not simply whether the link
between smoking and general health hazards was well-known.
It is at least premature on this record to take judicial notice of
the fact that the link between smoking and specific illnesses
allegedly caused by smoking was common knowledge during
the relevant time.
Philip Morris urges us to affirm the district court based on
the evidentiary record. The test for whether a product is “un-
reasonably dangerous” is an objective determination and is
measured by the “ordinary consumer” for whom the product
is designed. See McLennan v. Am. Eurocopter Corp., 245
F.3d 403, 428, (5th Cir. 2001); Insolia v. Philip Morris Inc.,
216 F.3d 596, 599 (7th Cir. 2000). To get past summary judg-
ment, Rivera needed to present evidence showing that the
ordinary consumer was unaware of the link between smoking
and lung cancer after 1969 (i.e., the defendant’s product was
more dangerous than was contemplated by the ordinary con-
sumer).
[10] Rivera, through Marvin E. Goldberg, Ph.D., submitted
an expert report highlighting public opinion polls conducted
in 1970 and 1999 which found that “[o]ver half (53%) of
smokers believed that smoking was not hazardous or that only
heavy smoking was hazardous.” Dr. Goldberg’s report also
discussed various studies conducted by the tobacco industry
that were allegedly concealed from the public but confirmed
“the relationship between heavy and prolonged tobacco smok-
1206 RIVERA v. PHILIP MORRIS, INC.
ing and the incidence of cancer of the lung.” An inference can
be drawn from this evidence that if the tobacco industry pur-
posefully suppressed scientific findings which were support-
ive of a link between tobacco and cancer, then it is less likely
that the ordinary consumer could have known of the connec-
tion between smoking and lung cancer. We cannot weigh evi-
dence. The evidence, and the favorable inferences to be drawn
from it, is sufficient to question whether ordinary consumers
were aware of the association between smoking and lung can-
cer, and the requisite presumptions on summary judgment
leave the question to a trier of fact. See, e.g., Tompkin, 219
F.3d at 568-70 (plaintiff’s expert reviewed periodicals, polls,
and industry and government reports from the relevant period,
concluding that smokers were not adequately informed of the
risks); Little v. Brown & Williamson Tobacco Corp., 243 F.
Supp. 2d 480, 492-95 (D.S.C. 2001) (plaintiff’s “sample
authorities,” including journals, reports, and polls created a
jury question regarding common knowledge).
Rivera also argues that the typical consumer was unaware
in 1969 that smoking was addictive. “The idea is that the first
cigarettes don’t cause cancer, but they do make you crave
more cigarettes and those additional cigarettes are the ones
that cause cancer down the road.” Insolia, 216 F.3d at 601. In
other words, it is “really the addiction that kills — not smok-
ing.” Id. To protect his claim from summary judgment, Rivera
was required to proffer evidence that tobacco’s addictive
nature was generally unknown to the typical consumer during
the time in question. Rivera provided expert testimony from
Dr. Goldberg stating that the tobacco industry, including
Philip Morris, understood the addictive properties of nicotine
yet acknowledged that “[v]ery few consumers are aware of
the effects of nicotine, i.e. it’s [sic] addictive nature and that
nicotine is a poison.” Rivera also relied on an expert report
from Neal Benowitz, M.D., opining that the tobacco industry
was aware of the addictiveness of smoking long before public
health officials identified smoking’s addictive danger. Rive-
ra’s point is that if health officials did not conclude that smok-
RIVERA v. PHILIP MORRIS, INC. 1207
ing was addictive until well after 1969, then the ordinary
consumer could not have known in 1969 that smoking was
addictive.
[11] Philip Morris, on the other hand, submitted affidavits
and reports from two experts, both of whom concluded that
the hazards of smoking, including lung cancer and addiction,
have been commonly known since well before 1969. Some of
Rivera’s own experts did not challenge these conclusions and,
in one instance, supported a finding of common knowledge as
to the risk of contracting lung cancer from smoking. We rec-
ognize that a trier of fact can reject expert testimony, but the
evidence in the record, though slight, is sufficient to survive
summary judgment and raise a question for a trier of fact. See
Texas v. Am. Tobacco Co., 14 F. Supp. 2d 956, 966 (E.D.
Tex. 1997); Castano v. Am. Tobacco Co., 961 F. Supp. 953,
958 n.7, 959 (E.D. La. 1997); Am. Tobacco Co., Inc. v. Grin-
nell, 951 S.W.2d 420, 429 (Tex. 1997).
(2) Fraudulent Concealment
Rivera claims that Philip Morris fraudulently concealed the
link between smoking and lung cancer. In Nevada, the ele-
ments of fraudulent concealment are:
(1) the defendant concealed or suppressed a mate-
rial fact; (2) the defendant was under a duty to dis-
close the fact to the plaintiff; (3) the defendant
intentionally concealed or suppressed the fact with
the intent to defraud the plaintiff; that is, the defen-
dant concealed or suppressed the fact for the purpose
of inducing the plaintiff to act differently than she
would have if she had known the fact; (4) the plain-
tiff was unaware of the fact and would have acted
differently if she had known of the concealed or sup-
pressed fact; (5) and, as a result of the concealment
or suppression of the fact, the plaintiff sustained
damages.
1208 RIVERA v. PHILIP MORRIS, INC.
Dow Chem. Co. v. Mahlum, 970 P.2d 98, 110 (Nev. 1998),
overruled in part on other grounds, GES, Inc. v. Corbitt, 21
P.3d 11 (Nev. 2003). The district court alternatively granted
summary judgment on Rivera’s fraudulent concealment claim
because there was no evidence that any action on the part of
Philip Morris would have altered Mrs. Rivera’s decisions
regarding smoking.
[12] To sustain a claim for fraud based on concealment or
omission, Rivera was required to present evidence showing
that the fraud victim would have acted differently if there had
not been fraudulent concealment. Nev. Power Co. v. Mon-
santo Co., 891 F. Supp. 1406, 1417 (D. Nev. 1995). The
record is void of any evidence that Mrs. Rivera would have
acted differently if the omitted information had been dis-
closed. According to deposition testimony, Mrs. Rivera began
smoking because her friends smoked and it was “cool” to
smoke. This does not mean, necessarily, that Mrs. Rivera still
would have elected to begin smoking in order to be “cool” if
the health risks of smoking had been known. Rivera, however,
has not presented evidence alleging that his wife would not
have started to smoke but-for the concealment of this infor-
mation. Moreover, Rivera testified that his late wife’s failure
to quit smoking was not dependent upon anything Philip Mor-
ris could have said or done; no amount of warning could have
induced her to quit. We affirm the district court’s summary
judgment on the fraudulent concealment claim because Rivera
has not supported a required element of this cause of action.
(3) Misrepresentation Claim
[13] Rivera claims that the defendant made affirmative mis-
representations regarding the health risks of smoking. False
representation claims, whether or not they allege misrepresen-
tation in advertising and promotional materials, are not pre-
empted by the Labeling Act because they are based on a
general duty not to deceive. Cipollone, 505 U.S. at 527-28.
The district court granted summary judgment as to the fraudu-
RIVERA v. PHILIP MORRIS, INC. 1209
lent misrepresentation claim because no evidence showed that
the decedent ever saw, heard, or read and relied upon any
alleged misrepresentation made by Philip Morris.
Under Nevada law, the elements of fraud are: (1) a false
representation made by the defendant; (2) defendant’s knowl-
edge or belief that the representation was false (or insufficient
basis for making the representation); (3) defendant’s intention
to induce the plaintiff to act or refrain from acting in reliance
upon the misrepresentation; (4) plaintiff’s justifiable reliance
upon the misrepresentation; and (5) damage to the plaintiff
resulting from such reliance. Bulbman, Inc. v. Nev. Bell, 825
P.2d 588, 592 (Nev. 1992). In addition, Rivera must prove
each element of fraud by clear and convincing evidence. Id.
Philip Morris contends that the allegation of fraudulent
conduct must fail as a matter of law because Rivera cannot
show that the decedent justifiably relied on any representation
made by the defendant. To establish justifiable reliance,
Rivera must show that an alleged false representation played
a material and substantial part in leading his late wife to adopt
her particular course. See Blanchard v. Blanchard, 839 P.2d
1320, 1322 (Nev. 1992). Of course, reliance on an alleged
misrepresentation presumes that Mrs. Rivera had actually read
or heard the alleged misrepresentation. See Nev. Power Co.,
891 F. Supp. at 1414.
[14] Rivera filed this lawsuit after his wife died. The record
contains no admissible evidence identifying what statements
attributable to Philip Morris the decedent actually saw, heard,
or read and relied upon to support her decision to start and
continue smoking. During discovery, Rivera admitted that he
was:
unable to point to a specific statement in any adver-
tisement or public communication from [Defendant]
which influenced Mrs. Rivera’s decision to start,
continue or fail to quit smoking.
1210 RIVERA v. PHILIP MORRIS, INC.
[15] Rivera argues that the pervasiveness of Philip Morris’
advertisements creates an issue of material fact as to whether
his late wife saw those advertisements and relied upon them.
The mere pervasiveness of the advertisements is insufficient
to counter the plaintiff’s testimony. During his deposition,
Rivera could not identify any misrepresentation by Philip
Morris that his late wife saw or relied upon in deciding to
smoke cigarettes in general and Marlboro cigarettes in partic-
ular. Reliance is an essential element of a misrepresentation
claim. Summary judgment on that claim was appropriate.
We affirm in part and remand for further proceedings. In
doing so, we do not preclude further pretrial considerations
that might rebut the presumptions that must be overcome to
justify summary judgment. Each party shall bear its own
costs.
AFFIRMED IN PART AND REMANDED.