Opinion
CIV. NO. 3:99-CV-262-X.
April 7, 2000.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion to Reconsider in Light of Intervening Authority, filed February 11, 2000, Plaintiffs' Response, filed February 28, 2000, Defendant's Reply, filed March 10, 2000, and Plaintiffs' Supplemental Response, filed March 27, 2000. For reasons more fully discussed below, the Court finds that the Defendant's Motion is well taken and should be, and is, GRANTED.
BACKGROUND
On October 14, 1999, this Court denied Defendant's Motion for Judgment on the Pleadings. Since that time, eleven other federal district courts have held that the actions asserted in this lawsuit are barred by the Texas Products Liability Act, TEX. CIV. PRAC. REM. CODE § 82.004.
See Joe Perez v. Philip Morris, Inc., No. C-99-153 (S.D.Tex. July, 7, 1999) 2000 U.S. Dist. LEXIS 584 (S.D.Tex. Jan. 4, 2000) (Jack, D.J.); Green v. R.J. Reynolds Tobacco, Co., No. H-99-1409, 1999 U.S. Dist. LEXIS 19744 (S.D.Tex. Nov. 19, 1999) (Milloy, M.J.), adopted, 1999 U.S. Dist. LEXIS 19706 (S.D.Tex. Dec. 20, 1999) (Gilmore, D.J.); McDade v. Phillip Morris, Inc. No. 4:98-CV-323 (E.D. Tex. Dec. 15, 1999) (Ward, D.J.); Dieste v. Philip Morris, Inc., No. 5:97-CV-117 (E.D. Tex. Dec. 3, 1999) (Folsom, D.J.); Williams v. R.J. Tobacco, Co., No. H-99-2108 (S.D. Tex. Sept. 30, 1999) (Hughes, D.J.); Delia Lopez v. R.J. Reynolds Tobacco, Co., No. C-98-521 (S.D. Tex. Feb. 2, 2000) (Head, D.J.); Beebe v. Brown Williamson Tobacco Corp., No. M-98-CV-253 (S.D.Tex. Jan. 6, 2000) (Hinojosa. D.J.); Rene Lopez v. Philip Morris Inc., No. M-99-236 (S.D.Tex. Jan. 6, 2000) (Hinojosa, D.J.); Alfonso v. R.J. Reynolds Tobacco, Co., No. M-99-264 (S.D. Tex. Jan. 11, 2000) (Hinojosa, D.J.).
Plaintiffs brings their case on the theory of civil assault and the wrongful death of Larry Poindexter. Mr. Poindexter died of lung cancer on February 16, 1998. Defendant maintains that the law of Texas bars recovery on Plaintiffs' claims.
STANDARD OF REVIEW
"After the pleadings are closed but within such time as not to delay trial, any party may move for judgment on the pleadings." FED. R. Civ. P. 12(c). In deciding this motion, the Court must take the facts alleged in the complaint as true. Cash v. Commissioner of Internal Revenue, 580 F.2d 152. 154 (5th Cir. 1978). A judgment on the pleadings is appropriate only where it is clear from the facts plead that the movant is entitled to judgment as a matter of law. Greenberg v. General Mills Fun Group, Inc., 478 F.2d 254, 256 (5th Cir. 1973). There is no practical difference between this standard and that of a motion under Rule 12(b)(6). St. Paul Ins. Co. of Bellaire, Texas v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir. 1991).
CHOICE OF LAW
This is a diversity case. Therefore, this Court must apply the laws of Texas. Erie Railroad Co. v. Tomkins, 304 U.S. 64, 78 (1938). Additionally, this Court may not change the law of Texas or adopt new theories of recovery. Solomon v. Walgreen Co., 975 F.2d 1086, 1089 (5th Cir. 1992) (per curiam).
In determining what law is appropriate, the Court first looks to the Texas Supreme Court. Texas Department of Housing and Community Affairs v. Verex Assurance, 68 F.3d 922, 928 (5th Cir. 1995). "When there is no ruling by the states 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 Co., 66 F.3d 743, 749 (5th Cir. 1995), cert. denied, 517 U.S. 1221 (1996).
Further, it is axiomatic that a district court sitting is diversity is bound to adhere to the decisions of the Court of Appeals for its circuit. Batts, 66 F.3d at 747. Erie predictions made by the Fifth Circuit are controlling authority unless and until state court decisions or statutory amendments overrule the prior decision. Id.
I. Statutory Bar
Plaintiffs' claims are barred by § 82.004. Texas law bars products liability actions against manufacturers where:
(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). The Defendant contends that this statute bars the Plaintiffs' theories of recovery. Plaintiffs allege that section 82.004 is inapplicable to the present case because they assert an assault, not products liability, claim. A review of the "products liability action" reveals the fallacy of Plaintiff's argument. A products liability action is defined 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). This expansive definition clearly includes a claim for civil assault. 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 charges of fraud, conspiracy, and violations of the Texas Deceptive Trade Practices Act for wrongful death arising from the use of cigarettes are barred by section 82.001(2)). Therefore, as this action constitutes a products liability action as defined by the Texas legislature, this Court must analyze the Plaintiff's claims under the test set forth in section 82.004. If the test is met, the claims are barred.
Plaintiff asserts that the dangers of tobacco are not common knowledge within the community and therefore judgment on the pleadings is not appropriate. Unfortunately for Plaintiff, the Fifth Circuit decided this issue several months ago. In Sanchez, the Fifth Circuit found that section 82.004 covers claims based on addiction. Sanchez, 187 F.3d at 490-91. As Plaintiff's claims are founded in addiction, they are, like those in Sanchez, covered by section 82.004.
The Plaintiffs argue with great fervor that this rule is incorrect, and that the notion that a civil assault, bearing the same elements as that of a criminal assault, can not and should not be condoned by Texas law. Although this Court is not without sympathy towards the Plaintiffs' outrage, this Court is bound by the Fifth Circuits legal interpretations. Batts, 66 F.3d 743. Therefore, Plaintiffs' claims are, as a matter of law, barred by section 82.001 of the Texas Civil Practices and Remedies Code.
II. Open Courts Provision
In a last ditch effort to save their claims, Plaintiffs assert that the Texas Constitution Open Courts Provision trumps section 82.001. Plaintiffs' argument fails. Under Texas law, a statute is presumed constitutional and are to be upheld whenever possible. Nootsie, Ltd. v. Williamson County Appraisal District, 925 S.W.2d 659, 662 (Tex. 1996). The Texas Constitution states 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 the course of law." Texas Const. Art. I, sec. 13 (Vernon 1997). This "open courts provision" is construed to limit the legislatures ability to unreasonably withdraw legal remedies from those having common law causes of action. Travelers Indemnity Company of Illinois v. Fuller, 892 S.W.2d 848, 853 (Tex. 1995). The Texas Supreme Court articulated a three part jest to determine a Constitutional violation. First, the Plaintiff must have a well recognized common law cause of action. Second, the restriction is unreasonable or arbitrary when considered against the legislative purpose. Third, there is no reasonable alternative available to the Plaintiff Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex. 1997).
The Court reaches only the first prong. Plaintiff's claims are not well recognized at common law. Historically, personal injury claims did not survive the injured's death. 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). Therefore, the claims in this case, brought by the survivors, fail to satisfy the first element required to prove an open courts violation.
CONCLUSION
Section 82.004 of the Texas Civil Practices and Remedies Code bars Plaintiffs' claims. Additionally, as that section is not violative of the Texas Constitution, judgment on the pleadings is appropriate. Therefore, Defendant's Motion for Reconsideration is well taken and Defendant's Motion for Judgment on the Pleadings is GRANTED.
SO ORDERED this 7 th day of April, 2000.