United States Court of Appeals
For the First Circuit
No. 04-1695
VIRGINIA PRADO ALVAREZ; MAYRA JANETTE GARCIA PRADO;
EDGARDO GARCIA PRADO; ORLANDO GARCIA PRADO;
IVELLISE GARCIA PRADO; FRANCISCO GARCIA PRADO;
JAVIER GARCIA PRADO; CARMEN ROSA ADORNO; JOHAM GARCIA ADORNO,
Plaintiffs, Appellants,
v.
R.J. REYNOLDS TOBACCO COMPANY, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Herbert Muriel with whom Amarilys Arocho-Maldonado was on
brief for appellants.
Robert H. Klonoff with whom Paul R. Reichert, Jones Day,
Salvador Antonetti Zequeira, Luis A. Oliver, Rosalie Irizarry
Silvestri, and Fiddler, Gonzalez & Rodriguez, P.S.C. were on brief
for appellee.
April 21, 2005
COFFIN, Senior Circuit Judge. Francisco García López began
smoking in 1960, at age 25, and continued the habit for the next 42
years, ultimately smoking three packs of Winston cigarettes each
day. He died in October 2002, three months after being diagnosed
with lung cancer. His surviving family members brought this
diversity action against the cigarette manufacturer, R.J. Reynolds
Tobacco Co., claiming that smoking was a substantial factor in his
illness and death. Plaintiffs sought to recover damages based on
a variety of tort and other Commonwealth law theories, including
failure to warn and defective design. The district court dismissed
a failure to warn claim and granted summary judgment for defendant
Reynolds on all other claims. After careful scrutiny of the
record, we affirm substantially for the reasons articulated by the
court.
I. Background
Decedent García had only a sixth grade education and could
read little Spanish and no English. Although he did not watch much
television, several family members testified in depositions that he
did regularly view the evening news. His wife and at least four of
his children also testified that, at various points during the
years García smoked, they urged him to stop because of the health
risks posed by cigarettes. According to the undisputed facts the
parties jointly submitted to the district court, García's wife and
daughter had "years ago . . . talked about how the Decedent was
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smoking too much." His wife acknowledged that, when she first saw
him smoking, she warned him that it could be bad for his health.
The family reported one or two attempts by Garcia to stop
smoking by using nicotine gum as a substitute. His son, Javier
García Prado, testified that he gave his father one pack of the
gum, and that the attempt lasted about two days and resulted in
reduced smoking during that time. A daughter, Ivellise García
Prado, said she bought him both nicotine gum and patches once he
had developed a cough and was feeling ill; she said he used the gum
and it reduced his smoking "a little," but he refused to use the
patches. Another daughter, Mayra Janette García Prado, testified
that her father stopped using the gum given to him by her sister
because "there were no results." Decedent's grandson, Joham García
Adorno, who lived with his grandparents, testified that his
grandfather used the patches once and that he stopped smoking, but
he did not remember for how long.
Another son, Edgardo García Prado, also noted his father's use
of the nicotine gum, but said that he never completely stopped
smoking. Edgardo testified that he "would tell [his father] to
stop smoking every day and he would pay no attention." Still
another son, Orlando, testified that, when family members or
friends would tell his father that smoking was harmful, he would
say "that we all have to die some time from something . . . . He
always had the same answer." Decedent's brother, Demetrio García
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Lopez, testified that he had been telling his brother that smoking
was harmful since about 1970. Demetrio said he did not know his
brother's perception of the health risks of smoking, noting, "[t]he
thing is that he would not pay any attention to anybody, so it just
didn't matter to him."
García's wife, Virginia Prado Alvarez, testified that, in May
2002, her husband stopped smoking because the price of cigarettes
increased,1 and he could no longer afford to buy them. He became
bedridden, and, according to his wife, "[h]e was feeling very sick
because he wasn't smoking." He was experiencing both abdominal
pain and a dry cough, and medical tests ultimately revealed a right
upper lung mass that was diagnosed as inoperable cancer. He
deteriorated rapidly and died in October 2002 at the age of 68.
Appellants filed suit in June 2003, claiming that García's
illness and death were caused by his smoking Winston cigarettes,
which are manufactured by appellee R.J. Reynolds. They alleged
negligence and strict liability claims under Puerto Rico law for
failure to warn and design defect, claims for fraudulent
misrepresentation and concealment, and a claim for violation of
Article 189 of the Puerto Rico Penal Code, 33 P.R. Laws Ann. §
4307, which prohibits "[f]raud in [the] delivery of [a] thing."
1
A daughter also testified that he stopped smoking because of
a price increase in May 2002.
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The district court dismissed the post-1969 failure-to-warn
claims based on preemption by the Federal Cigarette Labeling and
Advertising Act, 15 U.S.C. §§ 1331-1341, and it subsequently
granted summary judgment on the remaining claims. The court
concluded that plaintiffs had failed to establish that ordinary
consumers were unaware of the health risks of cigarette smoking
during the relevant time period, undermining both the design defect
and the pre-1969 failure-to-warn claims. The court further ruled
that plaintiffs failed to adduce evidence of a design defect or to
offer evidence that the decedent's injuries were proximately caused
by Reynolds' failure to warn. The court rejected the fraud claims,
inter alia, for lack of evidence of false statements heard or
reasonably relied on by decedent, and it concluded that the Article
189 claim suffered from dispositive deficiencies.
On appeal, appellants challenge each of the district court's
summary judgment rulings.2
II. Discussion
We review the district court's grant of summary judgment de
novo. Cruz Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271, 280
(1st Cir. 2003). Although we draw all reasonable inferences in
favor of the nonmoving party, id., that party must respond to a
2
At oral argument, appellants' attorney stated that they no
longer were pursuing their negligence claims; the failure-to-warn
and design defect claims thus remain only as strict liability
causes of action.
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properly supported motion with sufficient evidence to allow a
reasonable jury to find in its favor "with respect to each issue on
which [it] has the burden of proof," DeNovellis v. Shalala, 124
F.3d 298, 306 (1st Cir. 1997). See also Rochester Ford Sales,Inc.
v. Ford Motor Co., 287 F.2d 32, 38 (1st Cir. 2002). With that
standard in mind, we turn to our examination of appellants' claims.
A. The Role of Common Knowledge
As the district court observed, appellants may not prevail on
either the common law failure to warn or the design defect claims
unless they can show that the ordinary consumer was unaware of the
dangers of smoking. See Cruz Vargas, 348 F.3d at 275 ("[A]
manufacturer cannot be held liable under either strict liability or
negligence for failure to warn of a danger commonly known to the
public."); Aponte Rivera v. Sears Roebuck, 44 P.R. Offic. Trans. 1,
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."); Aponte Rivera, 44 P.R. Offic. Trans. at
6, 144 D.P.R. 830 (citing § 402A of the Restatement (Second) of
Torts, comment i, which states that a product is defective only if
it is "dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the
ordinary knowledge common to the community as to its
characteristics").
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Both parties sought to establish their position on common
knowledge through expert evidence, but Reynolds filed a motion to
exclude the testimony of plaintiffs' proposed expert, Marly Ferrer
Montalvo, claiming inter alia, that she lacked the requisite
education and experience to qualify as an expert. Although the
district court did not explicitly rule on this motion, it did not
refer to Ferrer's report in its summary judgment decision, relying
entirely on the common knowledge conclusions of Reynolds' expert,
Luis Martínez-Fernández. The court's silence seems to us to imply
rejection of plaintiffs' expert evidence, a ruling that would be
subject to review only for abuse of discretion. See Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999); Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 138-39 (1997); Currier v. United Techs.
Corp., 393 F.3d 246, 251 (1st Cir. 2004). In any event, as we
shall explain, even under de novo review we would conclude that
Ferrer's presentation is inadequate, particularly in light of
Martínez' detailed affidavit, to permit a jury to find for
plaintiffs on the issue of common knowledge.
In Cruz Vargas, we observed that the "common knowledge"
defense is assessed objectively and, "despite the nomenclature, it
is a technical question involving methods, financing, and sources
of research beyond the competence of lay determination, at least
when pertaining to history forty or fifty years removed from the
time of trial." 348 F.3d at 277. In performing its gatekeeping
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function in assessing proffered expert evidence, a court must
consider "whether the putative expert is 'qualified by "knowledge,
skill, experience, training, or education."'" Ed Peters Jewelry
Co. v. C & J Jewelry Co., 124 F.3d 252, 259 (1st Cir. 1997); see
also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993)
("relaxation of the usual requirement of first-hand knowledge . .
. is premised on an assumption that the expert's opinion will have
a reliable basis in the knowledge and experience of his
discipline"); Poulis-Minott v. Smith, 388 F.3d 354, 359-60 (1st
Cir. 2004); Fed. R. Evid. 702. Ferrer's qualifications to serve as
an expert were marginal, at best.
At the time of her report, Ferrer possessed only a bachelor's
degree in history, and most of her research experience was
irrelevant to the issue of common knowledge of the health risks of
smoking. Her master's thesis (written but, at the time of her
report, not yet presented) related to the history of the Republic
of Haiti, and her most recent work was as an archivist on a
collection of documents relating to public works in the
Commonwealth. As a graduate student in 2001, she presented a
paper on Haiti at a Puerto Rican Historians Congress. Other
experiences included about two years teaching high school students
Puerto Rican and Latin American history, researching the history of
the paso fino horse in Puerto Rico, working as a cultural tour
guide in Old San Juan, and assisting a university professor with
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research on neo-colonial history, particularly in the Caribbean,
but excluding Cuba and Puerto Rico. Toward the end of that year of
research, she did her only directly relevant work: collecting
materials about tobacco advertising in Puerto Rico. Her particular
assignment was to focus on religious and gossip magazines; in her
deposition, she described this work as photocopying information,
without analysis.
In sum, to grant the status of expert to one at the outset of
an academic career, with such a variegated and unfocused record of
scholarly efforts and minimal attention to analysis, would threaten
the effective functioning of the gatekeeper process. Expert
witnesses are "permitted wide latitude to offer opinions," Daubert,
509 U.S. at 592, and "'[e]xpert evidence can be both powerful and
quite misleading because of the difficulty in evaluating it,'" id.
at 595 (quoting Weinstein, "Rule 702 of the Federal Rules of
Evidence is Sound; It Should Not Be Amended," 138 F.R.D. 631, 632
(1991)). That a testifying expert thus should have achieved a
meaningful threshold of expertise seems beyond debate.
Reynolds' expert, Martínez, was considerably more qualified in
every relevant respect. A history professor since 1983, he earned
his doctoral degree from Duke University in 1990 and, at the time
of his affidavit, was a professor of history and Puerto Rican and
Hispanic Caribbean Studies at Rutgers University. Author of seven
books and monographs and more than twenty articles and essays, he
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also has given more than thirty lectures on Latin American
historical topics at colleges and universities. Among other
scholarly awards, he received in 2000 the Lydia Cabrera Award of
the Conference on Latin American History. He has taught a variety
of courses on Latin American, Caribbean and United States history,
and the course subject matter has included "the role of tobacco in
Caribbean and Latin American culture, economy and society."
Martínez' extensive professional involvement included serving as
chair of the Caribbean Studies Committee for the Conference on
Latin American History.
The two experts' proposed evidence also differed markedly. In
a seven-page report based on approximately 130 hours of work,
Ferrer reported that she had reviewed the bulletin and magazine of
the Puerto Rican Medical Association from 1930 through 1970,
reports of the Department of Public Health and the Commissioner of
Education, and a series of movies developed by the Department of
Education to address various social problems in Puerto Rico. She
stated that she investigated the newspaper El Mundo from the 1930s
through 1985 and found "some coverage of the health problems caused
by cigarette use," but her report gives no specific citations to
articles other than to state that she had found "approximately 15
articles [in 1964] on different subjects relating to tobacco, some
of which included health problems that may be caused by smoking
cigarettes." She acknowledged that her research was not yet
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complete, noting that she was still investigating several
magazines, including Readers Digest, which she noted was published
in Spanish beginning in December 1940.3
Based on the limited materials she reviewed, Ferrer
nevertheless concluded that "the research on the effects of tobacco
use and cigarette smoking was only beginning in the 1950s and
1960s," and she observed that pervasive cigarette advertising
"rendered futile any educational attempt to minimize the use of
cigarette products." She further observed that much of the
information about smoking that was available to Puerto Ricans was
translated from English, and noted that "many times the basic ideas
and concepts are lost in translation."4 She emphasized that this
language difficulty was exacerbated by the high percentage of
illiteracy among Puerto Rico's residents. She concluded that
decedent could have had no knowledge of nicotine addiction or the
health risks of smoking because of the ambiguous nature of the
information available to him. These conclusions were framed
3
On the second day of her deposition, about four months after
she first was deposed, she reported that she had in the interim
checked "some issues" of the newspapers El Imparcial and El Vocero
and also had reviewed the catalog of the national archive movie
section, where she uncovered one agricultural documentary about
growing tobacco in Puerto Rico.
4
During her deposition, she was unable to cite any specific
instances of such confusion and, upon questioning by defense
counsel, agreed that two apparently translated articles shown to
her from El Mundo that had been published in 1954 and 1955 would
have been understood as linking smoking and cancer.
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generally, and none was supported by specific citations to
sources.5
By contrast, Martínez reported in his 31-page affidavit a wide
variety of materials that he had examined. Among other sources, he
reviewed weekly magazines, island-wide daily newspapers, Puerto
Rican and national health publications, Puerto Rican laws relating
to tobacco, smoking, cigarettes and health instruction; education
materials, including health education courses and school texts;
religious and church publications; polling and survey data;
"materials related to popular culture"; and various government
documents. His conclusions were annotated with 112 footnotes
identifying specific sources. In addition to written materials, he
stated that he considered "the role of oral tradition, which is
particularly strong in Puerto Rico."
Based on his research, Martínez opined "to a reasonable degree
of historical certainty" that throughout the decedent's lifetime
5
We note as well that Ferrer's report was not sworn, which
diminishes its potency as probative evidence. See Carmona v.
Toledo, 215 F.3d 124, 131 (1st Cir. 2000) ("Documents supporting or
opposing summary judgment must be properly authenticated. . . . 'To
be admissible at the summary judgment stage, "documents must be
authenticated by and attached to an affidavit that meets the
requirements of Rule 56(e)."'"); Young v. City of Providence, 301
F. Supp.2d 163, 177 (D.R.I. 2004), aff'd in part, rev'd in part and
remanded by 2005 WL 826073 (1st Cir. Apr. 11, 2005)(declining to
credit expert's report on the assumption that it was not affirmed
under oath by means of "an affidavit or any other sworn
testimony"). Our conclusion on common knowledge does not, however,
depend on this flaw, and Ferrer in any event reviewed her research
during a lengthy deposition.
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the general public received an "abundance of information" on the
health risks of smoking and the difficulty some smokers encounter
in attempting to quit. He thus concluded that there has been
"widespread, pervasive common knowledge throughout the twentieth
century that cigarette smoking can cause serious life-shortening
diseases, such as lung cancer, emphysema, hypertension, and heart
disease." He further reported common knowledge that cigarette
smoking "can be habit forming, addictive, and/or very difficult for
some to quit."
More persuasive than these general, perhaps overbroad,
conclusions were his more particular references to sources of
public information in the critical decade of the 1950s, immediately
before the decedent started smoking. For example, his affidavit
cited nine articles related to smoking and health that appeared in
Selecciones del Reader's Digest between March 1950 and May 1959.
He reported that one of them, published in September 1954, noted
that "'13 unrelated studies have been done on the relationship
between cancer and tobacco in five differen[t] countries . . . all
these researchers reached the same conclusion: lung cancer appears
more frequently among smoker[s] than among non-smokers.'" (citing
"Lo que se sabe del cigarillo y el cáncer," Selecciones del
Reader's Digest, September 1954). He stated that another article,
published in February 1953, referenced a study concluding that
"'From the age of 45 onward, the danger of acquiring the illness
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[lung cancer] increases in direct proportion to the amount of
tobacco smoked . . . .'" (citing "Cáncer por cajetillas,"
Selecciones del Reader's Digest, February 1953). He also cited
more than a dozen articles in the newspaper El Mundo during the
1950s referring to smoking and health, including specifically the
relationship between smoking and cancer, and he pointed to similar
coverage in the early 1960s in both El Mundo and the San Juan Star.
According to Martínez, the issue of addiction also received
specific attention in both periodicals and newspapers. He cited a
1952 article in El Mundo that noted the difficulties of quitting
smoking and that "the seductive qualities of tobacco are doubtless
owing to the effect of the nicotine it contains." (citing "Sobre
café y tabaco," El Mundo, April 24, 1952). He stated that other
references to the difficulty of quitting smoking appeared in
"[p]opular and widely circulating magazines" such as Selecciones
del Reader's Digest and Alma Latina, and the footnote corresponding
to that statement listed twelve sources (including the nine
Reader's Digest articles noted above) addressing that topic and/or
the general issue of smoking and health, including the link to lung
cancer. Martínez also pointed to newspaper advertisements for
"stop smoking methods" and "highly publicized" anti-smoking
campaigns in the 1960s and 1970s that included educational
workshops to help smokers quit – messages that implicitly, if not
explicitly, communicated smoking's addictive nature. Educational
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information reviewed by Martínez included a 1944 junior high school
health education bulletin directing teachers to stress to students
that tobacco is habit-forming and that smoking, once started, is
difficult to quit
In light of these contrasting expert reports, we agree with
the district court that no reasonable jury, confined to the record,
could conclude that the general public in Puerto Rico lacked
knowledge about the risks of smoking, including lung cancer, by the
time decedent first started smoking in 1960.6 A reasonable juror
could not reject Martínez' detailed and comprehensive report in
favor of Ferrer's conclusory and incomplete assessment. As was the
case with his testimony in Cruz Vargas, "Martínez' research
followed an accepted method of historical analysis and drew on a
breadth of sources . . . contemporaneous with the time period at
issue in the case," 348 F.3d at 278. Ferrer's attempt to
neutralize the significance of the information disseminated on
smoking and health by focusing on Puerto Rico's literacy problems
falls short given Martínez' credible assertion of Puerto Rico's
oral tradition. Indeed, Martí.nez' opinion was validated by the
6
Appellants claim in their brief that Puerto Rico utilizes a
"more stringent" approach to the common knowledge doctrine,
requiring a finding in this case that consumers were aware not
simply that cigarette smoking is hazardous to health but of "the
specific connection between smoking and lung cancer (the disease
that caused decedent's death) and/or the addictive nature of
cigarettes." To the extent this is a correct statement of Puerto
Rico law, an issue we do not reach, it does not affect our
conclusion because Martínez' analysis met that standard.
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testimony of García's wife that she knew at the time he started
smoking that cigarettes posed a health risk – and that she told him
so.
We therefore agree with the district court that, in failing to
show a lack of common knowledge of the risks of smoking – and in
particular, the risk of lung cancer – appellants offered
insufficient evidence to support either their failure-to-warn or
design defect claims.
B. Other Elements of the Tort Claims
We note, moreover, that plaintiffs' evidence also fell short
of demonstrating the requisite proximate cause between either a
failure to warn or design defect and decedent's death from lung
cancer. As detailed above, decedent chose to disregard his
family's and friends' repeated admonitions that he give up
cigarettes because of the health risk, stating his intention to
continue smoking despite its link to disease and death because "we
all have to die some time from something." This attitude was
expressed notwithstanding the explicit warning on cigarette
packages, beginning in the mid-1980s, that smoking causes lung
cancer and other serious diseases. Thus, on this record, warnings
appear irrelevant to decedent's decision-making.7 Accord Estate of
7
Nor are appellants aided by the fact that the package
warnings were in English, a language decedent did not speak. His
exposure to the label information was inevitable given the evidence
that he regularly watched the evening news, and he presumably was
exposed to the information as well through word-of-mouth.
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White v. R.J. Reynolds Tobacco Co., 109 F. Supp.2d 424, 435 (D. Md.
2000) (proof that decedent ignored verbal warnings and warning
labels on cigarette packages shows lack of proximate cause for
decedent's cigarette-related injuries); see Glassner v. R.J.
Reynolds Tobacco Co., 223 F.3d 343, 351-52 (6th Cir. 2000) (finding
that common knowledge doctrine bars design defect and failure-to-
warn claims under Ohio product liability law where "decedent began
smoking in 1969 [after the federal labeling act was in effect] and
continued to smoke up until her death in 1997," affirming earlier
precedent focusing "not on the point at which the plaintiff began
smoking, but rather, the point at which she quit smoking").
In addition, the contention that nicotine's addictive nature
rendered decedent incapable of stopping once he started smoking –
a point asserted but undeveloped in appellants' brief – is belied
by the testimony of his wife and daughter that he stopped near the
end of his life because he no longer could afford the cost of
cigarettes. Although he briefly tried nicotine patches and gum
provided by family members, the evidence that he deliberately chose
to continue smoking despite its life-shortening effect undermines
the genuineness of those attempts to stop and, thus, their
probative value. In sum, the evidence taken as a whole forecloses
a jury finding that Reynolds' failure to warn of the health hazards
of smoking before 1969 was a proximate cause of decedent's lung
cancer. Cf. Tompkin v. American Brands, 219 F.3d 566, 568, 575
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(6th Cir. 2000) (court reversed summary judgment for defendants on
failure-to-warn and design defect claims based on factual question
regarding common knowledge where decedent gave up smoking in 1965,
at age 31, after smoking for 15 years).
Nor did decedent ever switch to available brands of cigarettes
with lower levels of tar or nicotine in an effort to lower the risk
to his health; he instead remained loyal throughout his life to
regular Winstons. Thus, Reynolds' failure to develop a "healthier"
cigarette design also could not be deemed the cause of his illness
and death.
For these reasons as well, appellants' failure-to-warn and
design defect claims were properly dismissed.8
C. Remaining Claims
Appellants also asserted a fraud claim and a claim under
Article 189 of the Puerto Rico Criminal Code, which punishes
"[f]raud in delivery of [a] thing," 33 P.R. Laws Ann. § 4307.9 The
district court found no allegations of reliance to support the
fraud claim, see, e.g., Microsoft Corp. v. Computer Warehouse, 83
F. Supp.2d 256, 262 (D.P.R. 2000) (listing elements of fraud under
8
The district court also relied on preemption doctrine to
dismiss appellants' claims. As our discussion so far fully
resolves the issues, we see no need to engage in additional
analysis.
9
Section 4307 provides, in relevant part: "Any person who
defrauds in the substance, quality or quantity of the thing he
delivers by virtue of an obligation in order to secure an undue
profit for himself or a third party shall be punished . . . ."
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Puerto Rico law); Wadsworth, Inc. v. Schwarz-Nin, 951 F. Supp. 314,
323 (D.P.R. 1996) (same), and appellants do not dispute that
omission. Instead, they argue that the court erred by considering
only fraud by misrepresentation and not fraud by concealment, a
concept of Puerto Rico law known as "dolo" that does not require
proof of detrimental reliance on false representations.
As appellants acknowledge, however, "dolo" is a form of
contractual deceit, see Generadora de Electricidad del Caribe, Inc.
v. Foster Wheeler Corp., 92 F. Supp.2d 8, 18-19 (D.P.R. 2000);
P.C.M.E. Commercial, S.E. v. Pace Membership Warehouse, Inc., 952
F. Supp. 84, 92 (D.P.R. 1997); Fournier v. Eastern Airlines, Inc.,
655 F. Supp. 1037, 1039 (D.P.R. 1987), and there are neither
allegations nor evidence to support a contractual relationship
between appellee Reynolds and the decedent. "Dolo" is thus
inapplicable in these circumstances.
Appellants' claim under Article 189 fares no better. Their
argument for liability under this provision presumes a contractual
relationship under which Reynolds was obliged to deliver a safe
product. As noted above, however, the basis for such a contractual
obligation was not alleged. Appellants offer no legal support for
their implicit assertion that the purchase of a consumer product,
without more, can establish a contractual relationship; nor have
they explained how Reynolds' sale of Winston cigarettes to the
decedent failed to fulfill any specific promises made to him
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regarding the "substance, quality or quantity" of the product to be
delivered. Article 189, like "dolo," is simply inapt.
For the forgoing reasons, the judgment of the district court
is affirmed.
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