¹ Florida's Gov. Signs Anti-Tobacco Bill, LEGAL INTELLIGENCER, May 27, 1994, at 6.

² However, a California jury recently awarded two million dollars to a former smoker for mesolothemia he contracted from asbestos in Kent's “Micronite” filter. Suein L. Hwang, Former Smoker is Awarded $2 Million in Suit over Illness Blamed on Filter, WALL ST. J., Sept. 5, 1995, at B6. The impact of the verdict will be limited because the filter was only manufactured for four years during the 1950s. Id.

³ Alix M. Freedman, “Impact Booster“: Tobacco Firm Shows How Ammonia Spurs Delivery of Nicotine, WALL ST. J., Oct. 18, 1995, at Al.

⁴ See 1994 Fla. Laws ch. 94-251, sec. 4 (codified at FLA. STAT. ANN. § 409.910 (West Supp. 1995)); 1994 Mass. Acts ch. 60, § 276. Although the Florida statute could also reach manufacturers of smokeless tobacco, this Note only addresses suits against cigarette manufacturers.

A bill proposing similar legislation is pending in New York. A.B. 6179, 218th Gen. Assembly, 1st Sess. (1995), available in WESTLAW, NY-BILLS Database. See N.Y. Group Urges Broader Powers to Sue Tobacco Firms for Medicaid Costs, 4 Health L. Rep. (BNA) No. 25, at 953 (June 22, 1995).

In this Note, smoking-related illnesses include lung, larynx, mouth, esophagus, and bladder cancer; chronic obstructive pulmonary disease; coronary heart disease; and stroke. See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco Products to Protect Children and Adolescents, 60 Fed. Reg. 41,314, 41,318 (1995) [hereinafter 1995 FDA Proposed Regulations], and studies cited therein. Cigarette smoking is also a probable cause of infertility and peptic ulcer disease and contributes to, or is associated with, cancer of the pancreas, kidney, cervix, and stomach. Id.

⁵ Peter Brimelow, Thank You for Smoking… ? (Health Benefits from Smoking), FORBES, July 4, 1994, at 80.

⁶ Analysis Regarding the Food and Drug Administration's Jurisdiction over Nicotine- Containing Cigarettes and Smokeless Tobacco Products, 60 Fed. Reg. 41,453, 41,488, 41, 536-37 (1995) [hereinafter FDA's Assertion of Jurisdiction], and studies cited therein.

⁷ id.

⁸ Id. at 41,489, 41,580-81.

⁹ See 1995 FDA Proposed Regulations, supra note 4, at 41,318, and studies cited therein.

¹⁰ Id.

¹¹ FDA's Assertion of Jurisdiction, supra note 6, at 41,483-88. The tobacco industry contested the FDA's assertion of jurisdiction in a lawsuit filed “just hours after” the FDA announced its proposed rules on August 10, 1995. Claudia MacLachlan, FDA Draws First in Tobacco Wars, NAT'L L.J., Aug. 28, 1995, at Al. Within a week of an FDA advisory panel's determination on August 2, 1994 that nicotine is addictive, see Laurie McGinley, Cigarettes Now on Market Are Addictive, FDA Drug Abuse Advisory Panel Finds, WALL ST. J., Aug. 3, 1994, at B8, representatives of the tobacco industry were quoted as saying that smokers’ addictions are mental, rather than physical, and that this mental addiction reflects society's “victim's mind-set.” Dave Mayfield, Tobacco's Rough Road, VIRGINIAN-PILOT, Aug. 7, 1994, at Dl. However, the FDA has compiled tobacco industry documents allegedly proving tobacco companies’ executives’ knowledge of nicotine's addictive qualities. FDA's Assertion of Jurisdiction, supra note 6, at 41,604-16. But see Suein L. Hwang & Yumiko Ono, Addiction on Trial, WALL ST. J., Mar. 23, 1995, at Bl (survey of scientists who challenge the conclusion that nicotine is addictive).

A corollary question is whether cigarette manufacturers manipulate nicotine levels in cigarettes. Specifically, the debate concerns cigarette manufacturers’ addition of ammonia-based compounds to the tobacco in cigarettes. The FDA contends that cigarette manufacturers use ammonia in tobacco preparation because ammonia frees more “bound” nicotine than is otherwise released by burning tobacco. Id. at 41, 710-11. Cigarette manufacturers counter that ammonia does not increase the amount of nicotine absorbed by the smoker, and that they use it to enhance the flavor of cigarettes. Freedman, supra note 3, at Al. The FDA uses its findings that nicotine is addictive, that the use of ammonia-based compounds makes nicotine more potent, and that cigarette manufacturers’ use of ammonia-based compounds to manipulate nicotine levels was intentional, to establish the manufacturers' intent necessary for it to regulate nicotine under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 321(g)(1)(C) (1994). FDA's Assertion of Jurisdiction, supra note 6, at 41,463-66.

¹² IMPERIAL CANCER RESEARCH FUND ET AL., MORTALITY FROM SMOKING IN DEVELOPED COUNTRIES 1950-2000 (1994).

¹³ Cigarette Smoking-Attributable Mortality and Years of Potential Life Lost - United States, 1990, 42 Morbidity & Mortality Wkly. Rep. (Dep't Health & Human Servs.) No. 34, at 645 (Aug. 27, 1993).

¹⁴ J. Michael McGinnis, Actual Causes of Death in the United States, 270 JAMA 2207, 2207- 08 (1993) (approximately 400,000 of 2,148,000 deaths in 1990 were smoking-related).

¹⁵ Medical Care Expenditures Attributable to Cigarette Smoking - United States, 1993, 43 Morbidity & Mortality Wkly. Rep. (Dep't Health & Human Servs.) No. 26, at 469 (July 8, 1994). Thomas Novotny, a co-author of the study, states that “[fjhis is the rock-bottom estimate of the cost of smoking.” Dana Priest, Smoking-Related Medical Care In ‘93 Estimated at $50 Billion; Costs More Than Doubled in 5 Years, CDC Study Says, WASH. POST, July 8, 1994, at A2. Further, a recent study indicates that smokers’ health care use increases as they continue smoking, and that quitting smoking halts that progressive increase within four years. Wagner, Edward H. et al., The Impact of Smoking and Quitting on Health Care Use, 155 ARCHIVES INTERNAL MED. 1789(1995)Google Scholar.

¹⁶ New Law Permits State to Sue to Recover Medicaid Funds from Tobacco Companies. 3 Health L. Rep. (BNA) No. 22, at 721 (June 2, 1994).

¹⁷ Rabin, Robert L., A Sociolegal History of the Tobacco Tort Litigation, 44 STAN. L. REV. 853, 856(1992)Google Scholar.

¹⁸ However, the Comprehensive Smoking Education Act, Pub. L. No. 98-474, 98 Stat. 2200 (1984) (codified as amended at 15 U.S.C. §§ 1331-1341 (1994)), requires that cigarette manufacturers annually and anonymously submit a list to the Secretary of Health and Human Services of the ingredients added to tobacco in any cigarettes they manufacture. Id. § 5. The Secretary of Health and Human Services may then use that information to report to Congress on the health effects of smoking. Id.

¹⁹ Indeed, the FDA goes out of its way to make clear that it does not intend to regulate cigarettes by removing them from the market. FDA's Assertion of Jurisdiction, supra note 6, at 41,786.

²⁰ See PUBLIC HEALTH SERV., U.S. DEP't OF HEALTH, EDUC. & WELFARE, SMOKING AND HEALTH: REPORT OF THE ADVISORY COMMITTEE TO THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE (1964).

²¹ Pub. L. No. 89-92, 79 Stat. 282 (1965) (codified as amended at 15 U.S.C. §§ 1331-1341 (1994)).

²² The original warning required was “Caution: Cigarette Smoking May Be Hazardous to Your Health.” Id. § 4.

²³ In 1970, Congress changed the required warning to “Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health.” Public Health Cigarette Smoking Act of 1969, Pub. L. No. 91-222, § 2, 84 Stat. 87, 88 (1970) (codified as amended at 15 U.S.C. §§ 1331-1341 (1994)).

²⁴ In 1984, Congress changed the required warning to require a rotation of the four following warnings on cigarette packages:

Comprehensive Smoking Education Act, Pub. L. No. 98-474, § 4, 98 Stat. 2200, 2201-02 (1984) (codified as amended at 15 U.S.C. § 1333 (1994)).

²⁵ Public Health Cigarette Smoking Act of 1969, Pub. L. No. 91-222, § 2, 84 Stat. 87, 89 (1970) (codified as amended at 15 U.S.C. § 1335 (1994)). Specifically, the Act regulates advertisement “on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission.” Id.

²⁶ Comprehensive Smoking Education Act, Pub. L. No. 98-474, § 4, 98 Stat. 2200, 2202-03 (1984) (codified as amended at 15 U.S.C. § 1333 (1994)).

²⁷ 1995 FDA Proposed Regulations, supra note 4.

²⁸ Elizabeth M. Whelan, Smoke and Mirrors: The Government's Fight Against Tobacco Use is Full of Sound and Fury, Signifying Nothing, SUN-SENTINEL (Ft. Lauderdale), Sept. 24, 1995, at 1H.

²⁹ 1995 FDA Proposed Regulations, supra note 4, at 41,786.

³⁰ FDA's Assertion of Jurisdiction, supra note 6, at 41,463 (asserting jurisdiction under the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301-395 (1994)).

³¹ Id.

³² Id. at 41,786.

³³ In 1994, the federal excise tax on cigarettes was 24 cents per pack, resulting in annual revenue of $5.5 billion. Gary S. Becker & Michael Grossman, The Senate's Health Care Follies: … and Cigarette Revenues up in Smoke, WALL ST. J., Aug. 9, 1994, at A12. In 1992, state cigarette taxes ranged from two cents per pack in North Carolina to 56 cents per pack in New York. Stuart Vincent, Smokers Taxed But Say They'll Find Ways to Deal with Boost of I? Cents a Pack, NEWSDAY, June 2, 1993, at 7.

³⁴ Linda Himelstein et al., Tobacco: Does it Have a Future?, BUS. WK., July 4, 1994, at 24, 28; Yumiko Ono, Two Big Companies Show Two Faces, WALL ST. J., May 23, 1995, at Bl, B5. See, e.g., Dennis J. McGrath, Smoking Squeeze; Tobacco Lobby Gets Help in Fighting Tax, Restrictions, STAR TRIB. (Minneapolis-St. Paul), Jan. 1, 1992, at Al; Pytte, Alyson, Tobacco's Clout Stays Strong Through Dollars, Jobs, Ads, 48 CONG. Q. 1542 (1990)Google Scholar.

³⁵ See, e.g., City-County Council, INDIANAPOLIS STAR, Nov. 6, 1995, at E12 (candidate Paul H. Jones proposing that cigarette tax revenues be used to fund a boot camp for repeat criminal offenders); Stephen Koff, Mayor Makes Case with Commissioner, PLAIN DEALER (Cleveland), Nov. 6, 1995, at 8A (proposal to use cigarette tax revenues to fund stadium renovations for the Cleveland Browns); Orange County Delay in Payment Cleared by Its Noteholders, WALL ST. J., July 10, 1995, at C15 (proposal to increase cigarette tax in order to increase general tax base and to help Orange County emerge from bankruptcy); Frank Phillips, Weld Aides Reportedly Duck News Conference: Governor Shunning Tobacco Lawsuit, BOSTON GLOBE, Dec. 22, 1995, at 39 (describing Massachu setts governor's abandoned proposal to use cigarette tax funds to balance the state's budget and help finance a tax break).

³⁶ See, e.g., Robert Keatley, Washington Wire, WALL ST. J., Sept. 1, 1995, at Al (California Governor Pete Wilson allegedly diverted cigarette tax funds earmarked for an antismoking program).

³⁷ No. 9673(C) (E.D. Mo. filed Mar. 10, 1954).

³⁸ Rabin, supra note 17, at 857.

³⁹ Id. at 854.

⁴⁰ Id.

⁴¹ Id. at 859.

⁴² Id. at 857.

⁴³ Id. at 859.

⁴⁴ Id. at 860-61.

⁴⁵ Id. at 861.

⁴⁶ RESTATEMENT (SECOND) OF TORTS (1965) [hereinafter RESTATEMENT]; Rabin, supra note 17, at 863 n.66.

⁴⁷ RESTATEMENT, supra note 46, § 402A, cmt. i; Rabin, supra note 17, at 863.

⁴⁸ Rabin, supra note 17, at 864.

⁴⁹ Id. at 864 n.67.

⁵⁰ Id. at 864. Professor Rabin's article states that the second wave ended with the Supreme Court's grant of certiorari in the Cipollone case, id. at 874, but his article was written before the Court delivered its opinion. Because the Court's decision left some suits viable even under a duty to warn theory, the cases that have been crafted to fit within that window should also be classified as second wave cases. A federal court in Louisiana recently certified a class of smokers in such a suit. Castano v. American Tobacco Co., 160 F.R.D. 544, 560 (E.D. La. 1995).

⁵¹ Rabin, Robert L., Some Thoughts on Smoking Regulation, 43 STAN. L. REV. 475, 477-78 (1991)Google Scholar.

⁵² Pub. L. No. 89-92, 79 Stat. 282 (1965) (codified as amended at 15 U.S.C. §§ 1331-1341 (1994)); Rabin, supra note 51, at 478.

⁵³ Rabin, supra note 17, at 864.

⁵⁴ Id. at 864-65.

⁵⁵ Id. at 866-67.

⁵⁶ Id. at 874.

⁵⁷ Id. at 867-68. “Thus, the lawyers’ litigation strategies, rather than their legal arguments, once again constituted the first line of defense.” Id. at 868.

⁵⁸ Id. at 869. For a discussion of the Cipollone preemption decision and its impact on present suits by states against the tobacco industry, see infra part III.B.

⁵⁹ Id. at 870.

⁶⁰ Id. at 870-73. For a discussion of how this analysis changes when a state brings the suit, see infra part III.A. 1 .b.ii.

⁶¹ Minnesota, Mississippi, and West Virginia have brought suits against the tobacco industry without first passing a statute enabling the state to bring the suit. The state of Minnesota and Blue Cross and Blue Shield brought suit against the tobacco industry in Minnesota v. Philip Morris Inc., No. CI-94-8565 (Minn. Dist. Ct. filed Aug. 17, 1994). The suit alleges antitrust conspiracy by the tobacco industry, and relies on Minnesota's consumer protection and antitrust laws. Insurer Joins State in Lawsuit Against Tobacco Firms in Minnesota, 3 Health L. Rep. (BNA) No. 34, at 1195 (Aug. 25, 1994). The Mississippi case alleges knowing conspiracy of manufacturers in producing an unreasonably dangerous product. Id. at 1196; State Seeks to Recover Monies Spent in Treating Smoking-Related Diseases, 3 Health L. Rep. (BNA) No. 22, at 722 (June 2, 1994). In West Virginia v. American Tobacco Co., No. 94-1707 (W. Va. Cir. Ct. filed Sept. 20, 1994), West Virginia alleges nuisance, negligence, fraud, and conspiracy. It seeks punitive damages and injunctive relief. W. Va. Suit Names Cigarette Makers; Seeks Recovery of Health Care Funds, 3 Health L. Rep. (BNA) No. 39, at 1415 (Oct. 6, 1994). The state of Maryland is seeking proposals for a similar suit. Maryland Seeks Attorneys for Possible Tobacco Suit, WALL ST. J., Nov. 17, 1995, at B2. Although Texas has only “considered” a similar suit, the tobacco industry has sought a declaratory judgment voiding any potential suit on constitutional grounds. Milo Geyelin, Cigarette Makers Sue to Head off Suits, WALL ST. J., Nov. 29, 1995, at B2.

⁶² See cases cited supra note 61. The federal government has also begun a criminal investigation of the tobacco industry based on this alleged withholding of information. Alix M. Freedman & Wade Lambert, Tobacco Probe Examines Securities Aspect, WALL ST. J., July 27, 1995, at B9. The charges may include securities fraud charges.

⁶³ See cases cited supra note 61.

⁶⁴ David Rogers & George Anders, White House Seeks to Isolate GOP Critics, Claim Middle Ground in Health Debate, WALL ST. J., July 18, 1994, at A14.

⁶⁵ Id.

⁶⁶ 1994 pia. Laws ch. 94-251, sec. 4 (codified at FLA. STAT. ANN. § 409.910).

⁶⁷ Chiles to Veto Anti-Tobacco Repeal, WASH. POST, May 8, 1995, at A11.

⁶⁸ Suein L. Hwang, Judge Upholds Law Letting Florida Sue Tobacco Industry, WALL ST. J., June 19, 1995, at B6.

⁶⁹ FLA. STAT. ANN. § 409.910(1).

⁷⁰ Id. §409.910(6).

⁷¹ Id. § 409.910(6)(a).

⁷² Id. §409.910(14).

⁷³ Id. § 409.910(6)(b),(c).

⁷⁴ Id. §409.910(9).

⁷⁵ Id. § 409.910(1).

⁷⁶ See description of the actual counts in the Florida Complaint as filed infra note 77.

⁷⁷ Florida's complaint, brought under the Florida Medicaid Third-Party Liability Act and under common law theories of liability, includes the following counts:

Count One: Restitution-Unjust Enrichment

Count Two: Indemnity

Count Three: Negligence

Count Four: Strict Liability for Defective and Unreasonably Dangerous Product

Count Five: Breach of Express and/or Implied Warranties

Count Six: Negligent Performance of a Voluntary Undertaking

Count Seven: Fraud, Intentional Misrepresentation

Count Eight: Conspiracy and Concert of Action

Count Nine: Aiding and Abetting Liability

Count Ten: Injunctive Relief

Complaint, State v. American Tobacco Co., No. 95-1466AO (Fla. Cir. Ct. filed Feb. 21, 1995) [hereinafter Florida's Complaint].

⁷⁸ Associated Industries of Florida's Complaint for Declaratory Relief, Associated Indus, of Fla. v. Agency for Health Care Admin., No. 94-3128 (Fla. Cir. Ct. filed June 30, 1994) [hereinafter Tobacco Industry's Florida Complaint].

⁷⁹ Law; Florida Supreme Court, WALL ST. J., Aug. 18, 1995, at B2.

⁸⁰ Id.

⁸¹ Bill Moss, Legal Big Guns Line Up for Billion-Dollar Tobacco Fight, ST. PETERSBURG TIMES, Nov. 7, 1995, at 5B. The court will probably take about three months to make a decision. Id.

⁸² See 1994 Mas? Acts ch. 60, § 276.

⁸³ Id.

⁸⁴ Id.

⁸⁵ The Massachusetts Attorney General's Office had originally sought modifications to the Massachusetts statute which would make it more like the Florida statute. Massachusetts Prepares Suit Against Tobacco Firms for Health Problem Cost, 4 Health L. Rep. (BNA) No. 10, at 351 (Mar. 9, 1995).

⁸⁶ State Authorized to Sue Tobacco Companies to Recover Medicaid Funds, 3 Health L. Rep. (BNA) No. 28, at 951 (July 14, 1994).

⁸⁷ Complaint, Philip Morris, Inc. v. Harshbarger, No. 95-12574 (D. Mass. filed Nov. 28, 1995), in 10.7 Tobacco Prod. Litig. Rep. (TPLR) 3.563 (1995) [hereinafter Tobacco Industry's Massachusetts Complaint]; see Cigarette Makers Sue to Head off Suits, supra note 61, at B2.

⁸⁸ Complaint, Massachusetts v. Philip Morris, Inc., No. 95-7378 (Mass. Super. Ct. filed Dec. 19, 1995) [hereinafter Massachusetts's Complaint]; see Massachusetts Sues Six Tobacco Firms, WALL ST. J., Dec. 20, 1995, at B6. The Massachusetts Complaint includes the following counts:

Count I: Undertaking of a Special Duty

Count II: Breach of Warranty

Count III: Conspiracy and Concert of Action

Count IV: Restitution

Count V: Unjust Enrichment

Massachusetts's Complaint, supra, at 66-73.

⁸⁹ See supra notes 77-81 and accompanying text.

⁹⁰ Tobacco Industry's Florida Complaint, supra note 78, at 14-25. Specifically, the counts are as follows:

⁹¹ Id.

⁹² Id. at 18-20. A Florida state circuit court judge agreed with the tobacco industry on this count and held that the Act can only be applied to conduct after the enactment date of the Act. Law; Florida Supreme Court, supra note 79, at B2. The state is appealing the decision. Id. This Note assumes that, according to rules of statutory construction, the Act can be read to apply retroactively.

Despite the similarity between the wording of the tobacco industry's complaint and the procedural due process guarantees of notice and opportunity to be heard, a due process challenge to a retroactive statute is one of substantive, rather than procedural, due process. See RONALD D. ROTUNDA ET AL., TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 15.9, at 106 (1986). By contrast, the procedural due process guarantee of notice is typically a guarantee of notice that charges have been brought against a defendant. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (constitutionality of a notice mechanism turns on whether it is “reasonably calculated … to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections“) (emphasis added); see, e.g., Greene v. Lindsey, 456 U.S. 444, 449-50 (1982).

⁹³ Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 16(1976).

⁹⁴ Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984) (applying a rational basis test to a retroactive application); Usery, 428 U.S. at 18 (same).

⁹⁵ 428 U.S. at 14-20.

⁹⁶ Id. at 8-12.

⁹⁷ Id. at 18.

⁹⁸ Id. at 19.

⁹⁹ See FLA. STAT. ANN. § 409.910(1).

¹⁰⁰ Id. (“It is intended that if the resources of a liable third party become available at any time, the public treasury should not bear the burden of medical assistance to the extent of such resources.“) (emphasis added).

¹⁰¹ Tobacco Industry's Florida Complaint, supra note 78, at 21.

¹⁰² FLA. STAT. ANN. § 409.910(9)(b).

¹⁰³ Id §409.910(1).

¹⁰⁴ Id. § 409.910(9), (9)(a).

¹⁰⁵ Id. §409.910(9).

¹⁰⁶ United States v. Carolene Prods. Co., 304 U.S. 144 (1938). Rational basis scrutiny of economic legislation may be satisfied with even purely hypothetical facts and reasons to uphold legislation. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483 (1955). Economic legislation is presumed constitutional, and “the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary or irrational way.” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15(1976).

¹⁰⁷ See Phillips v. Trame, 252 F. Supp. 948, 951 (E.D. III. 1966) (Federal Medical Care Recovery Act's purpose of providing for recovery of medical costs paid by the government from negligent third parties is so clearly legitimate that the statute's constitutionality is “hardly open to question“); FLA. STAT. ANN. § 409.910(1).

¹⁰⁸ By altering causation requirements and eliminating affirmative defenses for these suits, FLA. STAT. ANN. § 409.910(1), (9), the statute eliminates two of the major barriers that have blocked plaintiffs’ suits against the tobacco industry in the past. See generally Rabin, supra note 17, at 868, 870-73 (describing tobacco industry victories based on tobacco industry's suggestion that other environmental factors caused plaintiffs’ cancer and based on a smoker's freedom of choice in smoking). Causation is still an issue today. Even now, the tobacco industry denies that cigarette smoking causes cancer. See, e.g., Mayfield, supra note 11, at D l .

¹⁰⁹ 570 So. 2d 275 (Fla. 1990).

¹¹⁰ Id. at 285.

¹¹¹ Id. at 286 (the “due diligence” requirement). While it appears that Florida courts have not extended market share liability beyond DES cases, a federal district court in Florida has held that the language in Conley lends itself to an extension of the doctrine to other cases in which a plaintiff faces an “inherent inability” to identify which of many manufacturers caused his harm. Ray v. Cutter Lab., 754 F. Supp. 193, 195 (M.D. Fla. 1991) (refusing to grant defendant's summary judgment motion on a claim seeking market share liability under Florida law for contaminated blood plasma products which infected hemophiliacs with AIDS).

¹¹² See, e.g., Conley, 570 So. 2d at 279 (inherent inability due in part to generic appearance of DES pills).

¹¹³ See, e.g., id. at 283 (delayed harmful effect of DES); Ray, 754 F. Supp. at 196 (delayed harmful effect of AIDS from contaminated blood plasma products).

¹¹⁴ FLA. STAT. ANN. § 409.910(9)(b).

¹¹⁵ Id. Note, however, that the statute only defines when market share theory should be applied, and does not mandate the requirements for recovery under the theory. Those requirements would presumably be the same as were required in Conley. Conley set out the requirements for recovery under the theory as: (1) proof that plaintiff has made a reasonable attempt to identify the manufacturer responsible for the injury; (2) proof that the plaintiffs mother used DES during her pregnancy with her daughter; (3) proof that DES caused the injuries; (4) proof that the defendant(s) produced or marketed the type of DES taken by the plaintiffs mother (as specifically as the plaintiff is able to identify it); and (5) that the defendant(s) acted negligently in producing or marketing the DES. Conley, 570 So. 2d at 286. The plaintiff must prove each of these elements by a preponderance of the evidence. Id. To exculpate itself, an individual defendant must prove by a preponderance of the evidence that it did not produce the kind of DES taken by the plaintiffs mother, or that it did not produce that kind of DES in the relevant market or during the relevant time period. Id. Bui see Tobacco Industry's Florida Complaint, supra note 78, at 15 (alleging that the statutory market share theory denies defendants an opportunity to show that they did not cause the injury).

¹¹⁶ Conley, 570 So. 2d at 285-86; see Tobacco Industry's Florida Complaint, supra note 78, at 11.

¹¹⁷ Conley, 570 So. 2d at 280 (quoting Celotex Corp. v. Copeland, 471 So. 2d 533, 537 (Fla. 1985)).

¹¹⁸ While the cases that have applied market share liability have focused primarily on an “inherent inability” based on aspects of the product manufactured, Conley also considered the justice of relaxing causation requirements where “the delayed harmful effect on the nonconsuming plaintiff [made] identification impossible.” Id. at 283 (emphasis added).

¹¹⁹ See id. at 279.

¹²⁰ If the state were to bring suit under a common law market share theory of liability, including the Conley due diligence requirement, the state would have to attempt to identify each manufacturer responsible for each Medicaid smoker's harm. This would be nearly impossible not only because of the large number of Medicaid recipients whose illnesses allegedly result from smoking, but because many of the recipients may be dead or unreachable. Even if the state were able to contact the recipients, however, many would likely have smoked more than one brand of cigarette, thus making it impossible to identify which manufacturer had actually caused the recipient's harm, and thus making market share liability appropriate from another angle.

¹²¹ FLA. STAT. ANN. § 409.910(9)(a). Also, market share liability is more equitably applied to a class action than to an individual plaintiff. In the case of an individual plaintiff who was harmed by the product of one manufacturer, the other manufacturers sued under a market share theory will definitely be paying for harm they did not cause. By contrast, in the case of a class action brought under a market share theory of liability, all joined manufacturers likely caused at least part of the harm they will be held liable for, just because a substantial share of the market is joined.

¹²² See, e.g., McCormack v. Abbott Lab., 617 F. Supp. 1521, 1528-29 (D. Mass. 1985); Martin v. Abbott Lab., 689 P.2d 368, 382-83 (Wash. 1984) (model case for Conley's formulation of market share liability); Conley, 570 So. 2d at 285 (noting this difference in the McCormack and Martin cases).

¹²³ Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973).

¹²⁴ Id. at 438.

¹²⁵ At least one federal court has held that the United States's independent cause of action under the Federal Medical Care Recovery Act (MCRA), 42 U.S.C. §§ 2651-2653 (1994), is not barred by the government's contributory negligence. See United States v. Housing Auth. of the City of Bremerton (Bremerton), 415 F.2d 239, 243 (9th Cir. 1969) (suit seeking recovery of the cost of medical care to serviceman's daughter). In fact, the state has not undertaken to pay Medicaid costs in all circumstances. Its undertaking is limited to paying for medical care when no responsible third party can be identified. See FLA. STAT. ANN. § 409.910(1).

¹²⁶ See FLA. STAT. ANN. § 409.910(6)(a) (Florida's cause of action is against “a liable third party“). Federal courts interpreting the MCRA have used this analysis. See, e.g., Bremerton, 415 F.2d at 242-43; United States v. Theriaque, 674 F. Supp. 395, 398-400 (D. Mass. 1987).

¹²⁷ Hoffman, 280 So. 2d at 434.

¹²⁸ Id. at 436.

¹²⁹ See FLA. STAT. ANN. § 409.910(6)(b).

¹³⁰ See, e.g., Blue Cross & Blue Shield of Fla., Inc. v. Ryder Truck Rental, Inc., 472 So. 2d 1373, 1375 (Fla. Dist. Ct. App. 1985) (insurer subrogee's claim limited by collateral source rule where subrogor's action was limited by that rule).

¹³¹ See FLA. STAT. ANN. § 409.910(6)(c).

¹³² See, e.g., Shreve Land Co. v. J & D Fin. Corp., 421 So. 2d 722, 724 (Fla. Dist. Ct. App. 1982).

¹³³ Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973).

¹³⁴ The Fifth Circuit has held that Florida law does not support an imposition of strict liability to a cigarette manufacturer for a consumer's death from cancer allegedly caused by smoking. Green v. American Tobacco Co., 409 F.2d 1166 (5th Cir. 1969). However, for an argument that absolute liability is appropriately applied to the cigarette industry, see Frank J. Vandall, Reallocating the Costs of Smoking: The Application of Absolute Liability to Cigarette Manufacturers, 52 OHIO ST. L.J. 405, 412 (1991). By his analysis, absolute liability is the base of tort law, which was modified in the United States to subsidize infant industries. As the cigarette industry is not a proper subject for such a subsidy, harms caused by smoking should be subject to absolute liability. Further, he finds a general trend in the law toward absolute-liability-type theories, such as res ipsa loquitur and negligence per se. He concludes, “[i]f absolute liability should apply to blasting because of the certain and unpreventable damages, even more should it apply to the manufacturing of cigarettes with 350,000 smoking-caused deaths per year.” Id. at 412.

¹³⁵ Tobacco Industry's Florida Complaint, supra note 78, at 21.

¹³⁶ Id.

¹³⁷ FLA. STAT. ANN. § 409.910(9).

¹³⁸ Id. § 409.910(9)(a).

¹³⁹ Tobacco Industry's Florida Complaint, supra note 78, at 10.

¹⁴⁰ FLA. STAT. ANN. § 409.910(6)(a).

¹⁴¹ Id. § 409.910(6)(b).

¹⁴² Id. § 409.910(6)(c).

¹⁴³ FLA. R. Civ. P. 1.220(a). These provisions are nearly identical to those of the Federal Rule for certifying classes. See FED. R. CIV. P. 23(a).

¹⁴⁴ FLA. STAT. ANN. § 409.910(9), (9)(a).

¹⁴⁵ Compare FLA. STAT. ANN. § 409.910(9), (9)(a) with FLA. R. Civ. P. 1.220(a).

¹⁴⁶ Compare FLA. STAT. ANN. § 409.910(9)(a) with FLA. R. CIV. P. 1.220(a).

¹⁴⁷ See Hansberry v. Lee, 311 U.S. 32, 41-43 (1940).

¹⁴⁸ FLA. R. CIV. P. 1.220(b)(3). Other situations in which a class may maintain claims or defenses are codified at FLA. R. CIV. P. 1.220(b)(1), (2).

¹⁴⁹ Cf. Castano v. American Tobacco Co., 160 F.R.D. 544, 553-56 (E.D. La. 1995) (holding that the core liability issues of fraud, breach of warranty (both express and implied), intentional tort, negligence, strict liability, and alleged violations of consumer protection statutes in a suit by smokers against tobacco companies involved common issues adequate to be maintained by a class).

¹⁵⁰ Cf. id. at 556 (refusing to permit a class of smokers to be treated as a class relative to affirmative defenses, because affirmative defenses present individual issues that do not predominate over common issues).

¹⁵¹ See FLA. R. CIV. P. 1.220(b)(3).

¹⁵² FLA. STAT. ANN. § 409.910(9).

¹⁵³ Tobacco Industry's Florida Complaint, supra note 78, at 15, 21.

¹⁵⁴ See FLA. R. EVID. § 90.402.

¹⁵⁵ FLA. STAT. ANN. § 409.910(9).

¹⁵⁶ See, e.g., Tribe, Lawrence H., Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329 (1971)Google Scholar.

¹⁵⁷ Even if these alterations did constitute presumptions, they would only need to meet the Turnipseed test to be constitutional:

Mobile, J., & K.C.R.R. v. Turnipseed, 219 U.S. 35, 43 (1910), cited in Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 28 (1976); Mullins Coal Co. v. Director, O.W.C.P., 484 U.S. 135, 159 n.32 (1987).

¹⁵⁸ FLA. STAT. ANN. § 409.910(9) (“the evidence code shall be liberally construed“) (emphasis added).

¹⁵⁹ But see Tobacco Industry's Florida Complaint, supra note 78, at 21.

¹⁶⁰ Tobacco Industry's Massachusetts Complaint, supra note 87. Specifically, the tobacco industry's claims for relief are as follows:

First: Commerce Clause

Second: Due Process

Third: Equal Protection

Fourth: Supremacy Clause/Medicaid Preemption

Fifth: Supremacy Clause/Preemption Under the Public Health Cigarette Smoking Act of 1969

Sixth: Taking of Property

Seventh: First Amendment

Eighth: Ex Post Facto and Bill of Attainder Clause

Ninth: Deprivation of Plaintiffs’ Constitutional and Federal Law Rights Under Color of State Law

Tenth: Massachusetts State Constitutional, Statutory and Common Law Claims

Id.

¹⁶¹ 1994 Mass. Acts ch. 60, § 276.

¹⁶² The legislature passed the statute almost a year and a half before Massachusetts brought suit. See id. at 610 (section 276 approved by Governor on July 10, 1994); Massachusetts's Complaint, supra note 88, at 77 (complaint filed on Dec. 19, 1995).

¹⁶³ State Authorized to Sue Tobacco Companies to Recover Medicaid Funds, supra note 86, at 951.

¹⁶⁴ Tobacco Industry's Massachusetts Complaint, supra note 87, at 3.571.

¹⁶⁵ See supra part III.A. 1 .a.

¹⁶⁶ Tobacco Industry's Massachusetts Complaint, supra note 87, at 3.571. For support for the assertion that the government is not comparatively negligent in providing medical services, see supra note 125.

¹⁶⁷ Compare 1994 Mass. Acts ch. 60, § 276 with FLA. STAT. ANN. § 409.910(6)(a).

¹⁶⁸ Tobacco Industry's Massachusetts Complaint, supra note 87, at 3.571.

¹⁶⁹ Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955) (regarding economic legislation).

¹⁷⁰ Cigarette warning labels could play two distinct roles in tobacco litigation. First, the fact that Congress requires labels could preempt the suit, as described more fully in this section. The preemption question asks only whether Congress has spoken on the issue in such a way as to foreclose further state requirements. It does not, however, ask whether the warning actually required by Congress was adequate to put the plaintiff on notice of the harms of smoking. Instead, a finding of preemption would result in dismissal of the claim before a hearing on its merits. Second, even if a suit were found not to be preempted by the labeling laws, the labels could be used as evidence of actual or constructive notice of potential harms to the smoker in establishing an affirmative defense. Unlike the preemption inquiry, such a notice inquiry would examine the adequacy of the warnings in informing the smoker of the potential harms of smoking.

¹⁷¹ 505 U.S. 504(1992).

¹⁷² Public Health Cigarette Smoking Act of 1969, Pub. L. No. 91-222, 84 Stat. 87 (1970) (codified as amended at 15 U.S.C. §§ 1331-1340 (1994)) (the preemption clause, codified at § 1334(b), has not been amended since the 1969 Act).

¹⁷³ Cipollone, 505 U.S. at 524 (quoting 15 U.S.C. § 1334(b)). However, the Court held that the first labeling law, which was enacted in 1965, only preempted state labeling requirements and did not preempt state law damages actions. Id. at 519-20. Thus, failure-to-warn claims based on cigarette manufacturers’ actions before the enactment date of the 1969 Act are not preempted.

¹⁷⁴ Id. at 524. The Court held that federal labeling laws would not preempt failure-to-warn suits to the extent that they are based on cigarette manufacturers’ “testing or research practices or other actions unrelated to advertising or promotion.” Id. at 524-25.

¹⁷⁵ Id.

¹⁷⁶ cf. Griesenbeck v. American Tobacco Co., 897 F. Supp. 815, 823-24 (D.N.J. 1995) (holding that preempted failure-to-warn claims include claim of tobacco company's failure to warn smokers of the dangers of smoking while sitting on upholstery when drowsy).

¹⁷⁷ See supra note 173.

¹⁷⁸ Cipollone, 505 U.S. at 528 (failure-to-warn claims based on a duty to disclose facts through channels of communication other than advertising or promotion, such as by reporting to an administrative agency, are not preempted).

¹⁷⁹ Id. at 528-29 (fraudulent misrepresentation claims not preempted because they are based on a “duty not to deceive” and not on a duty “based on smoking and health“).

¹⁸⁰ Id. at 530 (conspiracy claims not preempted because they are based on “a duty not to conspire to commit fraud” and not on a duty “based on smoking and health“).

¹⁸¹ Id. at 525-26 (express warranty claims not preempted because the terms of the warranty to which the manufacturer would be held were determined by the manufacturer itself, and not by state law).

¹⁸² Id. at 512 (the trial court's ruling that the design defect claim was not preempted was not appealed).

¹⁸³ See, however, Justice Blackmun's criticism of the plurality's distinctions as creating “a crazy quilt” with “no principled basis.” Id. at 542-43.

¹⁸⁴ 42 U.S.C. §§ 2651-2653 (1994).

¹⁸⁵ Id. § 2651. See United States v. Theriaque, 674 F. Supp. 395, 399 (D. Mass. 1987) (government's right of action is independent under the MCRA).

¹⁸⁶ FLA. STAT. ANN. § 409.910(6)(a).

¹⁸⁷ 1 9 9 4 Mass. A c t s eh. 60, § 276.

¹⁸⁸ Theriaque, 674 F. Supp. at 399 (government's rights are subrogated, rather than independent, “in the sense that it may not sue in situations where state law negates the creation of tort liability in the third person” because the statute limits itself to recovery “under circumstances creating a tort liability upon some third person“).

¹⁸⁹ Id.

¹⁹⁰ Cipollone v. Liggett Group, 505 U.S. 504, 516 (1992) (citing Maryland v. Louisiana, 451 U.S. 725, 746 (1981), for the proposition that state law that conflicts with federal law is “without effect“).

¹⁹¹ Florida's Complaint, supra note 77, at 46 (Count Six claims that the tobacco companies breached their voluntarily-assumed duty and responsibility to report honestly and completely on all research regarding cigarette smoking and health by making public pronouncements, and that Medicaid recipients’ and the government's reasonable reliance on these pronouncements resulted in injury); Massachusetts's Complaint, supra note 88, at 66-67 (Count I alleges defendants’ voluntary undertaking of a duty to cooperate with the Commonwealth in protecting the public's health by researching possible health effects of smoking and disclosing those effects to the Commonwealth and its citizens). Florida also asserts a breach of a general duty to exercise reasonable care in the manufacture, sale, or distribution of cigarettes. Florida's Complaint, supra note 77, at 42.

¹⁹² See discussion of Cipollone and the question of preemption supra part III.B.

¹⁹³ Cipollone, 505 U.S. at 528. “Thus, for example, if state law obliged [manufacturers] to disclose material facts about smoking and health to an administrative agency, [the 1969 Act's preemption provision] would not pre-empt a state-law claim based on a failure to fulfill that obligation.“ Id.

¹⁹⁴ For a discussion of how cigarette warnings work differently in the contexts of preemption and affirmative defenses, see supra note 170.

¹⁹⁵ FLA. STAT. ANN. § 409.910(1) (“[principles of common law and equity as to … comparative negligence, assumption of risk, and all other affirmative defenses normally available to a liable third party, are to be abrogated to the extent necessary to ensure full recovery by Medicaid from third-party resources“). For a discussion of the constitutionality of this provision, see supra part III.A.l.b.ii.

¹⁹⁶ For a discussion of why affirmative defenses should not apply when a state asserts an independent cause of action, see also supra part III.A.l.b.ii.

¹⁹⁷ Donald Garner, quoted in Junda Woo, Cigarette Firms Fight Health-Costs Laws, WALL ST. J., July 8, 1994, at B8.

¹⁹⁸ Id.

¹⁹⁹ See Rabin, supra note 17, at 870-73.

²⁰⁰ Cf. Wade Lambert, FDA 's Move to Regulate Tobacco Seen Aiding Suits Against Industry, WALL ST. J., July 14, 1995, at B4 (RJR Nabisco Holdings Corp.'s tobacco unit's deputy general counsel, noting that “jurors continue to apply the common-sense proposition that people can quit if they want“).

²⁰¹ FDA's Assertion of Jurisdiction, supra note 6, at 41,539-68.

²⁰² Note that this difficulty is one reason that Florida's modification to existing common law application of market share liability is rational. See supra part III.A.l.b.i.

²⁰³ FLA. STAT. ANN. § 409.910(9)(b).

²⁰⁴ But see Alix M. Freedman & Suein L. Hwang, Tobacco: Why Don't Low-Tar Cigarettes Have Lower Nicotine?, WALL ST. J., July 14, 1995, at Bl (noting that lower tar cigarettes do not always have proportionately lower nicotine levels).

²⁰⁵ FLA. STAT. ANN. § 409.910(9).

²⁰⁶ See Santiago v. Sherwin Williams Co., 3 F.3d 546, 549-51 (1st Cir. 1993); McCormack v. Abbott Lab., 617 F. Supp. 1521, 1524-29 (D. Mass. 1985); Payton v. Abbott Lab., 437 N.E.2d 171, 188-90 (Mass. 1982).

²⁰⁷ See 1994 Mass. Acts ch. 60, § 276.

²⁰⁸ See Cipollone v. Liggett Group, 505 U.S. 504, 528-30 (1992).

²⁰⁹ The Federal District Court for the Eastern District of Louisiana has recently ruled that a suit by addicted smokers is not preempted by federal cigarette labeling laws. Castano v. American Tobacco Co., 162 F.R.D. 112, 117 (E.D. La. 1995); see Federal Court Finds No Pre-Emption, Allows Liability Case to Proceed, 3 Health L. Rep. (BNA) No. 40, at 1448 (Oct. 13, 1994). The court certified the plaintiff class in February 1995. Castano v. American Tobacco Co., 160 F.R.D. 544, 560 (E.D. La. 1995). The suit, crafted to stay within the window left open by the Supreme Court in Cipollone, alleges fraud and deceit, negligent misrepresentation, intentional infliction of emotional distress, strict liability, breach of express and implied warranty, and violation of Louisiana consumer protection statutes. Id. at 548. Also, Minnesota's, Mississippi's, and West Virginia's lawsuits charge the tobacco industry with violating antitrust laws and consumer laws by conspiring to hide the dangers of smoking. Gail Appleson, Eight States May Sue Tobacco Industry, Reuter Bus. Rep., June 23, 1994 (Minnesota and Mississippi), available in LEXIS, News Library, REUBUS File; W.Va. Suit Names Cigarette Makers; Seeks Recovery of Health Care Funds, supra note 61, at 1415. Among other things, these suits allege that the tobacco industry's representations to the FDA, upon which the Surgeon General based his warning, were fraudulent.

²¹⁰ See Florida's Complaint, supra note 77, at 47-48 (fraud and intentional misrepresentation claim); Massachusetts's Complaint, supra note 88, at 69-71 (conspiracy and concert of action claim asserts industry fraud).

²¹¹ FDA's Assertion of Jurisdiction, supra note 6.

²¹² Id. at 41,491-516, 41,582-787.

²¹³ If tobacco industry executives made fraudulent misrepresentations to Congress or the FDA, and the warnings required by federal cigarette labeling laws were based in part on these misrepresentations, Congress should consider rewriting the required warnings based on this new information. For instance, if Congress is persuaded that nicotine is addictive, federally-required warnings should probably also include a warning to that effect. In December 1995, a federal grand jury inquired into whether any cigarette company executives or scientists may have perjured themselves in congressional testimony or other sworn statements concerning nicotine addiction and the alleged manipulation of nicotine in their products. Alix M. Freedman, Tobacco: Philip Morris Memo Likens Nicotine to Cocaine, WALL ST. J., Dec. 8, 1995, at Bl.

²¹⁴ Castano v. American Tobacco Co., 160 F.R.D. 544, 548 (E.D. La. 1995).

²¹⁵ Id. The Federal District Court for the Eastern District of Louisiana determined that these claims fit within the Cipollone “window” of claims not preempted by federal cigarette labeling laws. Castano v. American Tobacco Co., 162 F.R.D. 112, 117 (E.D. La. 1995).

²¹⁶ Castano, 160 F.R.D. at 560-61.

²¹⁷ Id. The equitable relief requested includes:

Id. at 548.

²¹⁸ Id. at 548 n.2.

²¹⁹ 1995 FDA Proposed Regulations, supra note 4, at 41,786.

²²⁰ See discussion of the FDA's proposed regulation supra part II.B.

²²¹ See Lambert, supra note 200, at B4.

²²² Viveca Novak & Alix M. Freedman, Tobacco Industry Facing Two Criminal Investigations, WALL ST. J., July 25, 1995, at A3.

²²³ See discussion of state law claims preempted by federal cigarette labeling laws supra part III.B.

²²⁴ See Yumiko Ono, Teenagers Tell Which Antismoking Ads Work, WALL ST. J., Aug. 30, 1995, at Bl.

²²⁵ See Cries of War, Whispers of Peace, ECONOMIST, Oct. 28, 1995, at 27.

²²⁶ See Garner, Donald W., Cigarettes and Welfare Reform, 26 EMORY L.J. 269, 295-97 (1977)Google Scholar.