Mary Green v. The American Tobacco Company, Edwin Green, Jr., as Administrator of the Estate of Edwin Green, Deceased v. The American Tobacco Company , 409 F.2d 1166 ( 1969 )

COLEMAN, Circuit Judge,

with whom JOHN R. BROWN, Chief Judge, and GODBOLD, Circuit Judge, join, dissenting:

I respectfully dissent.

I do not propose to replay the long history of this litigation as compiled in this Court, in the District Court, and in the Supreme Court of Florida on certificate. A general resume may be found in the prior panel decision, 391 F.2d 97.

The one inescapable consideration is that a jury found as a fact that Mr. Edwin Green, Sr. died of primary cancer of the lung, caused from smoking Lucky Strike cigarettes. This finding was affirmed by this Court, 304 F.2d 70 (1962); 325 F.2d 673 (1963). The decisive point is that when a jury so found there simply remained no further strict liability factual issue in the case.

This Court one time certified the case to the Supreme Court of Florida to settle a narrow question of Florida law. That Court responded. It later took occasion to state exactly what its reply stood for, to-wit, “Green can be summarized as a case which applied a rule of absolute or strict liability to the manufacturer of a commodity who had placed it in the channels of trade for consumption by the public generally”, quoted in the prior opinion, 391 F.2d 101.

Yet, our Court, en banc, is now about to hold that he who sells for profit a product which caused the dread disease of cancer and also caused that ultimate of all dreads, death itself, can wiggle out of it by convincing a lay jury in a swearing match among super-scientists that such a product may somehow be reasonably safe for personal consumption by the general public. Because I do not believe that the Supreme Court of Florida would approve such a result, I persist in my refusal to do so.

The American Tobacco Company sold a product intended to be smoked. It contained an ingredient which caused cancer and death. The evidence shows that there was no way then, and there is none now, to foretell the identity of the person upon whom the fatal consequences will be visited. Yet, as happened to Mr. Green, it is certain they unit occur to some. If one plays Russian Roulette with a revolver containing ten chambers but loaded with one bullet there may be only one chance in ten that he will be shot. I doubt, however, that this Court would hold that the practice raises a jury issue as to its reasonable fitness for common use by the general public. Without resort to any court, the common sense of mankind teaches that such lethal games are inherently dangerous, even if some of the players do escape. The same must be true as to any deadly product. As to cancer-causing cigarettes, one must ask, how can anything, as a matter of fact, be reasonably fit for use by the general public when it is known to kill and no one knows whom it will kill?

If every user of the product is thus exposed to cancer and death, then how, as a fact, can it be reasonably fit — for one or for a million? The inquiry is not answered by proclaiming that a known killer failed to infect or to kill millions of others, who fortunately escaped its effects.

Any product for personal use, of whatever name or content, which causes cancer has no better claim to fitness as a fact than that accorded a poison. I think this Court should say so, and I am sorry that it believes otherwise. Yet, it seems quite clear that if we had a seller of canned meat before us he would get nowhere in an absolute liability case by claiming that only one container in a million contained poison and he is not liable since only a few people were killed. Why the legal distinction between a package of cigarettes and a can of meat? I submit that there is none.

Omitting repetitious discussion of the Florida cases cited in the panel opinion, 391 F.2d at 105, involving such products for human consumption as tinned meat, canned sardines, candy bars, soft drinks, and restaurant food, it is to be remembered that in none of these cases was it hinted that the seller might have avoided liability by proving that (while the plaintiffs were injured by the deleterious substance) numerous others suffered no injury from using or consuming it.

Our late Brother Cameron hit the nail on the head when he wrote, of this case, 304 F.2d 81, 82:

“I think the Florida cases establish a rule of law which constitutes a condition of every sale of a product for human consumption or use, which has the same legal effect in this case as if appellee had entered into a written contract with decedent, covering every package of cigarettes purchased by him, couched in these words:

“American guarantees that the cigarettes contained in this package are fit to be used by purchaser, a human being, by lighting and drawing smoke from them into the lungs, so that the ingredients of the cigarettes carried in the smoke may be deposited on the walls of the blood vessels situated therein, to the end that said ingredients will be absorbed into the blood stream and will produce in the smoker the soothing and relaxing sensations normally attending such use; that said cigarettes do not contain any harmful or deleterious substance; and that it will indemnify the user against any injury, loss or damage which may result from the smoking of said cigarettes.”

It is not to be overlooked that what the majority of the Court is doing here is to leave the law on the sale of cancer producing products to the divergent views of as many juries as may hereafter be empanelled on the subject. Yet, no court would ever do this if it were dealing with any other known poison, which, incidentally, a victim might have a chance to recover from.

With deference, I adhere to the result reached in the prior opinion. Upon the factual finding of the jury, I would hold American Tobacco Company liable as a matter of law and leave it to another jury to assess the damages. See 13 A.L.R.3rd 1049 (1967).

I must likewise state my disagreement with the action of the Court, en bane, refusing to certify this question to the Supreme Court of Florida for a direct, specific ruling on the Florida law applicable to this situation. It will not be denied that in this diversity case we must apply state law. Federal courts do not make the law with reference to state questions but merely ascertain and apply it, Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246; Meredith v. City of Winter Haven, Florida, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9; Smithey v. St. Louis Southwestern Railway Co., 8 Cir., 1956, 237 F.2d 637; Polk County, Georgia v. Lincoln National Life Insurance Co., 5 Cir., 1959, 262 F.2d 486.

While it may be argued that no further delay in the disposition of this long pending case should be tolerated, I would hold that at least in matters of cancer and health, life and death, we should give the Supreme Court of Florida an opportunity to settle the issue, especially since it is the only court which can do it with finality. I make no comment, beyond noticing it, that in this case a heavily docketed twelve judge court has been convened en banc to pass on an issue of state law in a diversity case, yet what we do can be reversed by the Supreme Court of Florida the next time it has the opportunity.