United States Court of Appeals
For the First Circuit
No. 02-2688
IRENE CRUZ-VARGAS, ELI ROGELIO FIGUEROA-CRUZ
AND LUIS ROGELIO FIGUEROA-CRUZ,
Plaintiffs, Appellants,
v.
R.J. REYNOLDS TOBACCO COMPANY,
Defendant, Appellee,
R.J.R. NABISCO, INC., NABISCO GROUP HOLDINGS,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.
Archie Jennings with whom Amarilys Arocho and Anita Hill-
Adames were on brief for appellants.
Robert H. Klonoff with whom Salvador Antonetti Zequeira, Luis
A. Oliver, Rosalie Irizarry Silvestrini, James R. Johnson, L.
Christine Buchanan, Jones Day, and Fiddler, Gonzalez & Rodriguez,
P.S.C., were on brief for appellee.
October 28, 2003
COFFIN, Senior Circuit Judge. Appellants are the widow and
two sons of Luis Figueroa Serrano, a longtime heavy smoker who
collapsed and died suddenly after several years of suffering from
hypertension.1 They brought this diversity action against appellee
R.J. Reynolds Tobacco Company, invoking Puerto Rico tort law and
alleging that the cigarette manufacturer was responsible for
Figueroa Serrano's death. The district court granted summary
judgment on most of appellants' claims, allowing only the sons'
failure-to-warn claims arising prior to July 1, 1969 to go to the
jury. After the jury ruled in favor of the sons, the court granted
judgment as a matter of law for Reynolds, concluding that, based on
the evidence at trial, the jury was compelled to find that the
risks of cigarette smoking were commonly known during the relevant
time period. On appeal, the sons challenge the judgment as a
matter of law. All three appellants challenge the summary judgment
ruling to the extent that it found all post-1969 failure-to-warn
claims preempted by federal legislation. Irene Cruz Vargas also
challenges the court's ruling that the statute of limitations
barred her claims. We affirm both of the district court's rulings
on the basis of common knowledge, making it unnecessary to reach
appellants' other arguments.
1
Irene Cruz Vargas is the widow of the decedent; Luis Rogelio
Figueroa Cruz and Eli Rogelio Figueroa Cruz are the sons.
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I. Background
The following facts are undisputed. The decedent was a native
Spanish speaker with no written or verbal English proficiency. He
seldom watched television and rarely, if ever, read newspapers or
magazines. Figueroa Serrano was a longtime heavy smoker with a
documented medical history of hypertension, including several
hospitalizations occurring between 1994 and his death on October
18, 1999. At the request of the family, no autopsy was performed.
Appellants filed this suit against Reynolds in October of
2000, alleging that decedent's smoking was responsible for his
hypertension, which in turn was a substantial factor in his death.
Appellants brought a series of negligence and strict liability
claims under Puerto Rico law, including failure to warn and design
defect. They furthermore argued that Reynolds failed to comply
with its duty, which they alleged to be implicit in federal
regulation, to print Spanish language warnings on cigarette
packages sold in Puerto Rico.
The district court granted Reynolds summary judgment on all of
Irene Cruz Vargas' claims, finding them time-barred. Cruz Vargas
v. R.J. Reynolds Tobacco Co., 218 F. Supp. 2d 109, 116 (D.P.R.
2002). With respect to the sons' claims, the district court
granted Reynolds' motion for summary judgment on claims of
defective design and the inherent dangerousness of tobacco and
cigarettes. Id. at 121. The court denied Reynolds' motion as to
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the failure-to-warn claims arising prior to July 1, 1969, the date
that the amendments to the Federal Cigarette Labeling and
Advertising Act went into effect.2 Id. at 117. The court found
failure-to-warn claims based on conduct after July 1, 1969
preempted by the Labeling Act.
The sons proceeded to a jury trial on their remaining claims.
Reynolds defended at trial primarily based on evidence that the
risks of cigarette smoking were common knowledge prior to 1969, and
thus no duty to warn existed. A jury found in favor of both sons,
awarding each damages in the amount of $500,000. The district
court subsequently granted Reynolds' motion for judgment as a
matter of law, under Fed. R. Civ. P. 50(a), finding that appellants
failed to offer any evidence demonstrating that the ordinary
consumer lacked knowledge of the health risks and addictive nature
of smoking. The district court held that the jury was not entitled
to reject the unimpeached, uncontradicted testimony of Reynolds'
expert witness, who stated his opinion that the Puerto Rican public
was aware of such hazards prior to July 1, 1969.
Appellants allege the district court's action was improper
because the evidence presented by Reynolds was susceptible to
conflicting inferences. In addition, they contest summary judgment
2
The Labeling Act mandated cautionary warnings on cigarette
packages beginning in 1965. The amendment, effective July 1, 1969,
both strengthened the language of the warnings and included
preemptive language broader in scope than that of the original act.
See Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).
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on two grounds: first, that the court erred in determining that the
claims accrued at the time appellants learned of Figueroa Serrano's
injuries, rather than on the actual date of his death; second, that
it further erred in refusing to find that the absence of warnings
in Spanish rendered the required warnings of the Labeling Act
ineffectual.
II. Judgment as a Matter of Law
We review the grant of judgment as a matter of law de novo.
Hochen v. Bobst Group, Inc., 290 F.3d 446, 453 (1st Cir. 2002). We
examine the record as a whole, reading the evidence in the light
most favorable to the jury verdict. Reeves v. Sanderson Plumbing
Prod., 530 U.S. 133, 150 (2000). Although we may not weigh the
credibility of witnesses, id., we assume the veracity "of any
admissions made and stipulations entered into by the party opposing
the Rule 50 motion...as well as any evidence derived from
disinterested witnesses that has not been contradicted or
impeached." Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62, 69
(1st Cir. 2002)(quoting Alvarez-Fonseca v. Pepsi Cola of P.R.
Bottling Co., 152 F.3d 17, 23 (1st Cir. 1998)). Only if "applying
these standards, the evidence does not permit a reasonable jury to
find in favor" of appellants will we affirm the district court.
Brennan v. GTE Gov't Systems Corp., 150 F.3d 21, 26 (1st Cir.
1998).
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A. Evidence Regarding Common Knowledge
This case calls for us to evaluate application of the common
knowledge doctrine in the context of tobacco litigation. The
doctrine stems from the principle that a manufacturer cannot be
held liable under either strict liability or negligence for failure
to warn of a danger commonly known to the public. See, e.g.,
Guevara v. Dorsey Labs., Div. of Sandoz, Inc., 845 F.2d 364, 367
(1st Cir. 1988) ("The duty to warn in general is limited to hazards
not commonly known to the relevant public."); Aponte Rivera v.
Sears Roebuck, Inc., 44 P.R. Offic. Trans. 7, 144 D.P.R. 830 (1998)
("[A] manufacturer need not warn of a hazard if the average
consumer ordinarily has knowledge of the dangers of the product.").
To state a claim for negligence under the law of Puerto Rico,
a plaintiff must prove that "(1) defendant owed a duty to prevent
the harm by conforming to a reasonable standard of conduct; (2)
defendant breached that duty through a negligent act or omission;
and (3) the negligent act or omission caused the plaintiff's harm."
Tokio Marine & Fire Ins. Co. v. Grove Mfg. Co., 958 F.2d 1169, 1171
(1st Cir. 1992). See also 31 L.P.R.A. § 5141 (1991). Puerto Rico
has also adopted, by judicial act and with a slight modification,
the strict liability principles embodied in section 402A of the
Restatement (Second) of Torts. Perez-Trujillo v. Volvo Car Corp.,
137 F.3d 50, 53 n.5 (1st Cir. 1998) (clarifying that claimant in
Puerto Rico must show the product was "unsafe" rather than
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"unreasonably dangerous"); Rivera Santana v. Superior Packaging,
Inc., 1992 P.R.-Eng. 754830 *3 n.4, 132 D.P.R. 115 (1992) (noting
that Puerto Rico has adopted U.S. common law products liability
principles to "fill a gap in our body of laws").
A products liability plaintiff alleging failure to warn must
prove "(1) the manufacturer knew, or should have known of the risk
inherent in the product; (2) there were no warnings or
instructions, or those provided were inadequate; (3) the absence of
warnings made the product inherently dangerous; (4) the absence of
adequate warnings or instructions was the proximate cause of
plaintiff's injury." Aponte Rivera, 44 P.R. Offic. Trans. at 6.
Under the common knowledge doctrine, however, a defendant neither
breaches a duty nor causes the product to be inherently dangerous
when the allegedly omitted warning concerns a danger of which the
public is well aware.
In an ordinary case on summary judgment or judgment as a
matter of law, plaintiffs point to evidence suggesting a genuine
dispute of a material fact. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986) (standard for judgment as a matter of
law mirrors that of summary judgment, and thus to withstand a
motion under either inquiry, the evidence must indicate "sufficient
disagreement to require submission to a jury"). In other cases in
which common knowledge was at issue, plaintiffs have successfully
defended against summary judgment motions by pointing to evidence
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suggesting such a genuine dispute. See, e.g., Tompkin v. American
Brands, 219 F.3d 566, 568-70 (6th Cir. 2000) (plaintiff's expert
reviewed periodicals, polls, and industry and government reports
from the relevant time period, concluding that smokers were not
adequately informed of the risks); Little v. Brown & Williamson
Tobacco Corp., 243 F. Supp. 2d 480, 492-495 (D.S.C. 2001)
(plaintiff's "sample authorities," including journals, reports and
polls, created a jury question regarding common knowledge).
Appellants here take a different approach, contending that they did
not have a burden to produce any evidence at all. The crux of
appellants' entreaty on appeal is that neither the strict liability
nor the negligence claim requires any affirmative showing, and thus
the burden rested entirely on Reynolds. Whether or not this is a
correct view of the law, after searching the record we have found
no evidence which supports appellants' allegations that there was
a lack of common knowledge and thus we are compelled to find that
Reynolds met its burden in any event.
Appellants argue that Reynolds' experts presented conflicting
testimony on common knowledge, which permitted the jury to reach
the conclusion it did. This contention, however, is not borne out
by review of the trial transcript. Reynolds' defense consisted of
three witnesses. The testimony of the first two had no relevance
to the specific common knowledge inquiry. Dr. Herman Melavet, a
medical internist, testified as to the dispute in the medical
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community as to the precise causal link, if any, between smoking
and hypertension. He also suggested that the decedent may have
died from a dissecting aneurysm.3 The testimony of Dr. Juan
Fumero, a psychiatrist, concerned contemporary psychiatric
understanding of nicotine dependence.
Appellants extract a discrete portion from the testimony of
Dr. Fumero in support of their argument that the jury was presented
with contradictory evidence undermining common knowledge.
Appellants fault Dr. Fumero for his opinion that regardless of the
term used to describe a smoking habit, be it "addiction," "nicotine
dependence," or "substance abuse," an individual committed to
quitting will be able to do so. But to say that one can abandon a
habit sheds no light on whether the prevalence of the habit was a
matter generally known.4 Similarly, Dr. Melavet's testimony that
3
As explained above, no autopsy was performed and thus the
cause of death cannot be precisely ascertained.
4
Appellants highlight the following portion from Dr. Fumero's
testimony on direct examination:
Q: Is there anything in cigarettes that would render
a person unable to understand that he is smoking and to
make a decision to quit?
A: No, nothing at all.
Q: There is a term addiction that has been bandied
about here which means that a person is not competent
to change their behavior that he or she is said to be
addicted to?
A: No, you can call it addiction; you can call it
nicotine dependence; you can call it substance abuse.
It doesn't matter how you call it, there is nothing in
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cigarette smoking did not cause hypertension says nothing about the
state of common knowledge.
Only Professor Luis Martinez, an expert in Carribean social
history, testified on the precise issue of common knowledge, and he
concluded by stating his opinion that "the average consumer in
Puerto Rico during the 1950's, during the 1960's" was aware both of
health risks, such as cancer and cardiovascular disease, and that
"smoking was or could be difficult to quit." Appellants contend
that the jury permissibly rejected Martinez' testimony as biased
and incredible. Appellants' bias argument relies on the U.S.
Supreme Court's decision in Sonnentheil v. Christian Morlein
Brewing Co., 172 U.S. 401 (1899), which held that "the mere fact
that a witness is interested in the result of the suit is deemed
sufficient to require the credibility of his testimony to be
submitted as a question of fact." Id. at 408. Case law in this
circuit, however, clarifies that mere payment to an expert by a
party does not raise a question of bias. Quintana-Ruiz, 303 F.3d
at 76 (finding that witnesses' status as "paid outside experts" did
not gainsay credibility).5
it that can impair you from quitting if you choose to
quit.
5
Appellants' attempt to bring Martinez' testimony under the
rubric of Sonnentheil by alleging a "fraudulent tinge" finds no
support in the record.
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Martinez' testimony is furthermore neither improbable nor
contradicted, thus falling under the established principle that
"testimony concerning a simple fact, capable of contradiction, not
incredible, and standing uncontradicted, unimpeached, or in no way
discredited by cross-examination, must be permitted to stand." Id.
at 75 (quoting Chicago, Rock Island & Pac. Ry. Co. v. Howell, 401
F.2d 752, 754 (10th Cir. 1968)). Martinez' research followed an
accepted method of historical analysis and drew on a breadth of
sources — such as newspapers, polls, surveys, school curricula,
films, and reports by various public interest organizations —
contemporaneous with the time period at issue in the case.6 Given
his explanation of the sources and method, Martinez' opinions are
not improbable or unbelievable, and the transcript reveals no
inconsistencies in his direct testimony.
Cross examination neither brought to light any contradictions
undermining Martinez' opinion nor revealed information suggesting
6
In total, Professor Martinez' presentation included 58 slides
summarizing his sources. A sampling of the sources on addiction
and health risks, all dating from the 1950s and 1960s, includes:
articles from the Spanish language Reader's Digest, including
"Nicotine, the Smoking Enigma," "How I Quit Smoking," "Dreadful
Lung Cancer on the Rise;" a 1961 article in the San Juan Star
titled "Two City Studies Show Death Rate Higher for Smokers;" two
editorial cartoons from the daily newspapers El Mundo and El
Imparcial (one relating to addiction, the other to health risks);
an ad in El Imparcial about the difficulties of quitting, an
article in El Mundo lamenting "how difficult it is to quit!" and
several other El Mundo articles discussing a major study of the
risks of smoking, completed in 1957, that spurred increased
government interest in further investigation. He also testified to
extensive coverage in newspapers following the release in 1964 of
a key Surgeon General's report on smoking hazards.
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a lack of common knowledge. In an effort to discredit Martinez'
sources, appellants' counsel suggested that the semantical
distinction between a "poll" and a "survey" had factual
significance. Martinez, however, effectively explained his
understanding of the difference between the two without raising
doubt as to the validity of either, and further clarified the
legitimacy of population sampling in the surveys and polls on which
he relied. Counsel also probed issues regarding the circulation
and availability of newspapers and magazines in Figueroa Serrano's
neighborhood in particular, but the court sustained an objection to
this line of questioning as improperly suggesting that common
knowledge has a subjective component.7
In a final effort to salvage the verdict, appellants rely on
an instruction that they claim allowed the jury to disregard
Martinez' testimony. The jury was told that "[y]ou should consider
each expert opinion received in evidence and give it such weight as
you think it deserves. You should bear in mind that the opinions
7
Courts construing Section 402A of the Restatement (Second) of
Torts, which is applicable here, have found the determination of
common knowledge to be purely objective. See e.g. McLennan v.
American Eurocopter Corp., 245 F.3d 403, 428 (5th Cir. 2001)
("Whether information about a risk is common knowledge is an
objective inquiry and the user's knowledge is not dispositive on
the issue."); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599
(7th Cir. 2000) (section 402A involves an objective test "and is
not dependent upon the knowledge of the particular injured
consumer"); Little, 243 F. Supp. 2d at 492 (D.S.C.
2001)("[Plaintiff's] knowledge or lack of knowledge concerning the
dangers of cigarettes is irrelevant for purposes of this
analysis.").
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of experts do not bind the Court, and they do not bind you."
Construing this language as carte blanche for a total rejection of
Martinez' testimony is a misreading of our precedent. For it makes
clear that the jury could not reject the substantive,
uncontradicted and unimpeached evidence upon which Martinez'
opinion was based. See C. Wright & A. Miller, 9A Federal Practice
and Procedure §2527, at 286 n.9 (1995 & Supp. 2003) (citing
Quintana-Ruiz, 303 F.3d at 75, as holding that the jury must accept
the uncontradicted and unimpeached testimony of even an interested
witness). While the instruction permitted the jury, in the event
of conflicting evidence, to reject Professor Martinez' resolution
of the conflict, it did not allow the jury to reject the only
evidence presented on the issue for no apparent reason.
Like the testimony in Quintana-Ruiz, Martinez' presentation
was not "improbable, inconsistent, or otherwise facially
unbelievable." Because Martinez' testimony as to the nature,
content and variety of dissemination of information about the
perils of smoking was uncontradicted and suffered no obvious defect
inviting impeachment, the jury had no basis to find other than that
common knowledge of smoking's hazards existed in Puerto Rico before
July 1, 1969.8
8
Our references to common knowledge are not without limit of
time. We hold only that the evidence at trial required the jury to
find that common knowledge existed at least by the mid-1960s, the
earliest time at which decedent may have begun smoking.
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C. Exclusion of the 1988 Surgeon General's Report
To the extent appellants' case lacked critical evidence on the
common knowledge issue, appellants argue this stemmed from refusal
of the district court to admit a 1988 Surgeon General's report on
the addictiveness of nicotine. When pressed by the judge regarding
the relevance of the 1988 report to claims prior to July 1, 1969,
appellants' counsel offered only that "in regard to the issue
regarding addiction, Your Honor, the matter concerning [decedent]
is that over the years he did become addicted in 1988. It settled
that issue." Appellants urge us to consider additional remarks in
the proffer which merely indicated that in 1964 addiction and
dependence were used interchangeably and that the 1988 report
standardized the definition.9 They now claim the report
demonstrates that the addictive nature of smoking could not have
been common knowledge until at least 1988. Contrary to appellants'
9
Counsel's complete proffer was:
"Well in regard to the issue regarding addiction, Your
Honor, the matter concerning Mr. Luis Serrano is that
over the years he did become addicted in 1988. It
settled that issue. What counsel is speaking of, there
was a change in the definition of the Surgeon General's
Report from 1964 regarding addiction versus defendant's
dependence. Sometimes they used it interchangeably back
in 1964. The World Health Organization indicated that
they believed that cigarette smoking was addictive or
people became dependent upon it over those years. They
asked for some more studies, and they came out with the
report in 1988."
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argument, these further remarks by no means signify that common
knowledge did not exist until 1988.
Moreover, counsel's offer of proof did not reveal that this
was the intended purpose behind admitting the report. The issue
was thus not preserved. See Clausen v. Sea-3, Inc., 21 F.3d 1181,
1194 (1st Cir. 1994) (quoting Tate v. Robbins & Meyers, Inc., 790
F.2d 10, 12 (1986) ("[I]f evidence is excluded because it is
inadmissible for its only articulated purpose, the proponent of the
evidence cannot challenge the ruling on appeal on the ground that
the evidence could have rightly been admitted for another purpose."
(citations omitted)). The district court properly perceived the
potential for jury confusion, given that the trial was limited to
claims prior to July 1, 1969. Counsel had the opportunity to allay
such concerns and enunciate a specific relevant use for the report,
but failed to do so.10
In conclusion, we affirm the district court's grant of
judgment as a matter of law in favor of Reynolds. Based on the
evidence presented, no reasonable jury could have found a lack of
common knowledge during the relevant time period regarding the
health hazards and habit-forming nature of cigarettes.
10
Despite appellants' urging, the decision in Perez-Trujillo
v. Volvo Car Corp., 137 F.3d 50 (1st Cir. 1998), in which we
vacated the district court's exclusion of eyewitness testimony,
does not suggest an opposite result. Exclusion of eyewitness
testimony contemporaneous in time with the exact events at issue is
distinguishable from exclusion of this report on general subject
matter published nearly twenty years after the relevant time period
in the case.
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III. Demand for New Trial on Post-1969 Claims
Appellants also appeal from the grant of summary judgment in
favor of Reynolds on post-1969 failure-to-warn claims, which the
district court found preempted by the terms of the Labeling Act.
Cruz Vargas, 218 F. Supp. 2d at 117. As with judgment as a matter
of law, we review the district court's grant of summary judgment de
novo and draw all reasonable inferences in favor of the nonmoving
party. Sparks v. Fidelity Nat'l. Title Ins. Co., 294 F.3d 259, 265
(1st Cir. 2002). Furthermore, we may affirm the district court "on
any ground revealed by the record." Morales-Vallellanes v. Potter,
339 F.3d 9, 18 (1st Cir. 2003).
Appellants offer the intriguing suggestion that our preemption
analysis consider the "linguistic particularity" of Puerto Rico in
giving effect to the clearly expressed Congressional intent that
warnings required by the Labeling Act be deemed adequate to inform
the public of cigarettes' hazards. See 15 U.S.C. §1331(1) (1998).
Reynolds, on the other hand, points to case law analyzing the
preemptive scope of the Labeling Act and argues that any state law
tort action based on inadequate package warnings falls under the
rubric of these decisions. See Medtronic Inc. v. Lohr, 518 U.S.
470, 488 n.9 (1996) (text of the Labeling Act "specified the
precise warning to smokers that Congress deemed both necessary and
sufficient"); Cipollone v. Liggett Group Inc., 505 U.S. 504, 524
(1992) (failure-to-warn claims preempted to the extent such claims
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require a showing that advertisement or promotion of cigarettes
required "additional, or more clearly stated, warnings"); Palmer v.
Liggett Group, Inc., 825 F.2d 620, 629 (1st Cir. 1987) (describing
"state tort liability" as "seriously disruptive to the
congressionally calibrated balance of national interests"). We
need not decide, however, if appellants' argument defeats
preemption because we have already determined that the jury was
required to believe Reynolds' uncontradicted and unimpeached
testimony on the existence of common knowledge in Puerto Rico prior
to July 1, 1969. It is thus axiomatic that proof of such common
knowledge also stymies all subsequent failure-to-warn claims.11
For the foregoing reasons, we affirm the district court's
grant of summary judgment and judgment as a matter of law in favor
of Reynolds.
Affirmed.
11
In any event, we suggest that the argument regarding the
language of warnings is best entertained by Congress, and not the
courts. See Aponte Rivera, 44 P.R. Offic. Trans. 10, 144 D.P.R.
830 (P.R. 1998),(Negrón Garcia, J., dissenting) ("[I]t is incumbent
upon the Legislative Assembly and the Secretary of Health, not upon
this Court, to make the pertinent standardization [of the language
of warnings], to set it forth in a statute or regulation, and to
define what are sufficient instructions and warnings."); Ramirez v.
Plough, 6 Cal. 4th 539, 550 (1994) ("Defining the circumstances
under which warnings or other information should be provided in a
language other than English is a task for which legislative and
administrative bodies are particularly well suited.").
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