Insolia, Vincent v. Philip Morris Inc.

In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2654

VINCENT INSOLIA, BILLY MAYS, MAUREEN LOVEJOY,
KAREN INSOLIA, PHYLLIS MAYS, and LEE LOVEJOY,

Plaintiffs-Appellants,

v.

PHILIP MORRIS INCORPORATED, R.J. REYNOLDS
TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO
CORPORATION, B.A.T. INDUSTRIES P.L.C., LORILLARD
TOBACCO COMPANY, LIGGETT GROUP, INC., HILL
AND KNOWLTON, INC., THE COUNCIL FOR TOBACCO
RESEARCH-U.S.A., INC., and THE TOBACCO
INSTITUTE, INC.,

Defendants-Appellees.

No. 99-2693

PHYSICIANS PLUS INSURANCE CORPORATION,

Plaintiff-Appellant,

v.

PHILIP MORRIS INCORPORATED, R.J. REYNOLDS
TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO
CORPORATION, B.A.T. INDUSTRIES P.L.C., LORILLARD
TOBACCO COMPANY, LIGGETT GROUP, INC., HILL
AND KNOWLTON, INC., THE COUNCIL FOR TOBACCO
RESEARCH-U.S.A., INC., and THE TOBACCO
INSTITUTE, INC.,

Defendants-Appellees.

Appeals from the United States District Court
for the Western District of Wisconsin.
No. 97 C 347 C--Barbara B. Crabb, Judge.

Argued January 19, 2000--Decided June 16, 2000

Before BAUER, CUDAHY, and EVANS, Circuit Judges.

EVANS, Circuit Judge. If there were such a thing
as moral estoppel, the outcome of this appeal
would be plain. For decades tobacco companies
have assured the public that there is nothing to
fear from cigarettes, yet they now slough off
lawsuits like this one by professing that
everybody knew all along that smoking was risky.
In taking this litigation stance, the cigarette
makers either are suffering from amnesia or are
acknowledging that their propaganda over the
years has been ineffectual. Judicial estoppel,
however, applies only to inconsistent positions
adopted in litigation, and punishing hypocrisy is
something left to a court of another realm. The
only issue for us is whether this case was
properly snuffed out on summary judgment.

This appeal stems from a lawsuit filed against
this country’s major cigarette makers and
industry trade groups by three former smokers who
developed lung cancer that they blame on smoking.
All three smokers began smoking long before the
first health warnings appeared on cigarette
packages in 1965 and all three smoked two to
three packs every day for several decades.
Vincent Insolia began smoking in 1935, at age 12,
and smoked until 1974. Billy Mays began smoking
in 1951, at age 13, and continued until 1994.
Maureen Lovejoy began smoking in 1953, at age 15,
and quit in 1996. The three were diagnosed with
lung cancer in the 1990’s.

The former smokers and their spouses, all
Wisconsin citizens, filed suit in state court but
the defendants removed the case to federal court
under diversity jurisdiction, 28 U.S.C. sec.
1332. District Judge Barbara B. Crabb
extinguished all but one of the plaintiffs’
claims on summary judgment, 53 F. Supp. 2d 1032
(W.D. Wis. 1999), and the remaining claim
subsequently was dropped. On appeal, the
plaintiffs argue that their strict liability,
negligence, misrepresentation, and intentional
exposure to a hazardous substance claims should
have survived summary judgment, and they ask us
to certify several questions to the Wisconsin
Supreme Court.

We review a grant of summary judgment de novo,
construing the evidence in the light most
favorable to the nonmoving party. Bragg v.
Navistar Int’l Transp. Corp., 164 F.3d 373, 376
(7th Cir. 1998). Summary judgment is appropriate
under Federal Rule of Civil Procedure 56(c) if
there are no genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Once the party moving for summary
judgment uncovers a hole in the opponent’s case,
the nonmoving party that bears the ultimate
burden at trial must show that there is evidence
creating a genuine issue of material fact. Id. at
323-25. Material facts are those which might
affect the outcome of the suit. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An
issue is genuine if a reasonable trier of fact
could find in favor of the nonmoving party. Id.
The judge must ask whether a fair-minded jury
could return a verdict for the plaintiff on the
evidence presented. The existence of a mere
scintilla of evidence supporting a plaintiff’s
position is insufficient; there must be evidence
on which a jury could reasonably find for the
plaintiff. Id. at 252.

We begin with the strict liability claim.
Wisconsin law, which governs this case, relies on
the Restatement (Second) of Torts in this area.
Vincer v. Esther Williams All-Aluminum Swimming
Pool Co., 230 N.W.2d 794, 797 (Wis. 1975); Dippel
v. Sciano, 155 N.W.2d 55, 63 (Wis. 1967). Section
402A of the Restatement says that one who sells
an unreasonably dangerous product is liable for
physical harm caused by the product. However, the
section’s "comment i" explains that this rule
"applies only where the defective condition of
the product makes it unreasonably dangerous to
the consumer . . . . The article sold must be
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."
Wisconsin courts have restated the Restatement as
follows: "If the average consumer would
reasonably anticipate the dangerous condition of
the product and fully appreciate the attendant
risk of injury, it would not be unreasonably
dangerous and defective. This is an objective
test and is not dependent upon the knowledge of
the particular injured consumer." Sumnicht v.
Toyota Motor Sales, 360 N.W.2d 2, 16 (Wis. 1984),
quoting Vincer, 230 N.W.2d at 798.

The plaintiffs contend that the average consumer
at the time in question did not fully appreciate
the health risks of smoking, in particular the
addictive nature of smoking. We must first define
this imaginary "average consumer" and pin down
the time in question. The plaintiffs propose that
in this context the "average consumer" should be
a beginning smoker, maybe even a beginning
teenage smoker. The Restatement incorporates the
common-sense notion that if a consumer knows
ahead of time that a product might be dangerous
but goes ahead and uses it anyway, the consumer
takes the risk upon himself and the manufacturer
will not be held strictly liable. Nicotine’s
addictive grip makes it difficult to quit
smoking. Consequently, the state of knowledge of
the average consumer must be measured before the
average person is hooked and is no longer capable
of making a rational choice. We agree with the
plaintiffs that, when it comes to an addictive
product like cigarettes, the "average consumer"
is the beginning smoker.

The plaintiffs also believe the average consumer
should be a teenager because that is when many
people begin smoking and become addicted. The
defendants argue that Todd v. Societe Bic, S.A.,
21 F.3d 1402, 1408 (7th Cir. 1994) (en banc),
holds that children may never be the standard to
measure consumer expectations. Todd interpreted
Illinois law, which, like Wisconsin, adopted the
Second Restatement of Torts, Section 402A. Id. at
1405. In Todd, a 22-month-old child was killed by
a fire started by a 4-year-old child using a
cigarette lighter that belonged to one of the
adults in the household. Id. at 1404. The estate
of the deceased child sued the manufacturer of
the cigarette lighter, arguing that though the
ordinary adult consumer would have appreciated
the lighter’s danger, children--who were
foreseeable users--would not have understood the
product’s hazards. Id. at 1407-08. The court
refused to expand the Restatement’s consumer
contemplation test from ordinary consumers to
foreseeable users. Id. at 1408.

Contrary to the defendants’ interpretation, Todd
does not mean there is a universally fixed
definition of the ordinary consumer that bears no
relationship to the product in question. Because
the primary consumers, users, and purchasers of
cigarette lighters are adults, gauging the
perceived risks of cigarette lighters from the
average adult’s viewpoint makes sense. The same
logic holds true even for a product--like
diapers--that is used primarily by children but
that is purchased and the use of which is
supervised by adults. But suppose there was a
product-- say, bubble gum--of which children were
not only the primary users, but also the primary
purchasers, independent of any parental control.
It would defy reason to excuse bubble gum
manufacturers for bubble-gum-related injuries to
children on the grounds that adults who rarely
use the product would have appreciated bubble
gum’s hazards. Likewise, if the facts demonstrate
that the ordinary beginning smoker is a teenager,
then the consumer contemplation test should be
measured from the average pre-smoking teenager’s
perspective.

Most smokers do begin smoking in their teens,
but the record does not reflect this. The
plaintiffs failed to introduce evidence that 82
percent of those who have ever smoked daily began
smoking before age 18. Centers For Disease Control and
Prevention, Morbidity and Mortality Weekly Report, Nov. 8,
1996, Volume 45, No. 45, citing U.S. Department of
Health and Human Services, Preventing Tobacco Use Among Young
People: A Report Of The Surgeon General (1994). Instead,
the plaintiffs pointed to the 1988 Surgeon
General’s Report on Nicotine Addiction that said
tobacco addiction "almost always begins during
childhood or early adolescence" and to statistics
indicating that about 23 percent of all high
school students and 30 percent to 35 percent of
high school seniors in 1958 and 1966 smoked. The
Surgeon General’s remark is imprecise, and
statistics about what percentage of teenagers
smoke are not pertinent to the question of what
percentage of smokers began smoking as teenagers.
Confined by the evidence in this record, we must
view the ordinary consumer of cigarettes as a
beginning adult smoker.

The second component of the consumer
contemplation test we must consider is the time
frame. The plaintiffs, oddly, suggest using 1964
as the benchmark. They say this is a convenient
measuring stick because it is when the first
major Surgeon General report on smoking came out,
and public awareness of smoking’s hazards would
not have been any greater prior to the release of
that landmark report. The defendants, equally
oddly, advocated at oral argument that consumer
awareness be measured at the time the injury was
discovered, in other words in the 1990’s when the
plaintiffs here learned they had lung cancer. The
idea behind the consumer contemplation test is
that consumers who had their eyes open when they
chose to use a potentially dangerous product
cannot later blame the manufacturer for their
foreseeable injuries. However, consumers who
began using a product at a time when the product
was thought to be safe are not precluded from
holding the manufacturer responsible when they
find out years later that--surprise!--the product
was toxic. Cigarette companies--along with the
makers of asbestos, DDT, and other products that
turned out to be bad news--would love a rule that
measures consumer awareness only after the damage
has been done and the danger thus discovered, but
such a rule would be more than a little
preposterous. Instead, what the ordinary consumer
contemplated about the dangers of smoking should
be evaluated at the time the plaintiffs began
smoking. For Insolia, that’s 1935; for Lovejoy
and Mays, that’s the early 1950’s.

To sum up, the plaintiffs’ strict liability
claim, at the summary judgment stage, hinges on
whether the plaintiffs produced evidence that
would allow a reasonable jury to find that
average American adults in 1935 and in the early
1950’s did not understand the hazards of smoking
before they began to smoke.

The plaintiffs made a halfhearted effort in the
district court to show that the ordinary
consumer, at the time they began to smoke, did
not appreciate the general health risks of
smoking. Judge Crabb rejected this idea, and the
plaintiffs have dropped it on appeal. Other
courts also have held that there was common
knowledge of the evils of smoking, although the
plaintiffs in many of those cases began smoking
at a later date than did the plaintiffs in this
case. See Allgood v. R.J. Reynolds Tobacco Co.,
80 F.3d 168, 172 (5th Cir. 1996); Roysdon v. R.J.
Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir.
1988); Guilbeault v. R.J. Reynolds Tobacco Co.,
2000 WL 124374, at *9 (D.R.I. 2000); Hollar v.
Philip Morris Inc., 43 F. Supp. 2d 794, 807 (N.D.
Ohio 1998); Jones v. American Tobacco Co., 17 F.
Supp. 2d 706, 718 (N.D. Ohio 1998); Tompkin v.
American Brands, Inc., 10 F. Supp. 2d 895, 905
(N.D. Ohio 1998); Todd v. Brown & Williamson
Tobacco Corp., 924 F. Supp. 59, 62 (W.D. La.
1996); Paugh v. R.J. Reynolds Tobacco Co., 834 F.
Supp. 228, 231 (N.D. Ohio 1993); The American
Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420,
429 (Tex. 1997). But see Hill v. R.J. Reynolds
Tobacco Co., 44 F. Supp. 2d 837, 844 (W.D. Ky.
1999) (court denied motion to dismiss because it
was unwilling to take judicial notice "of
something as intangible as public knowledge over
three decades in the past").

The plaintiffs’ exclusive argument on appeal is
that although the typical consumer was aware that
smoking was bad, he or she didn’t know back then
that smoking was addictive. The idea is that the
first cigarettes don’t cause cancer, but they do
make you crave more cigarettes and those
additional cigarettes are the ones that cause
cancer down the road. It’s really the addiction
that kills--not smoking. Several courts have said
that whether there is a distinction between
knowing about general health hazards and knowing
about the danger of addiction is a question of
fact that should be decided by a jury. See State
of Texas v. American Tobacco Co., 14 F. Supp. 2d
956, 966 (E.D. Tex. 1997) (when facts are viewed
in light most favorable to plaintiff, "while the
health risks of tobacco consumption are generally
known, the addictive nature of tobacco
consumption is not generally known due to the
concealment and misrepresentation by
Defendants"); Castano v. American Tobacco Co.,
961 F. Supp. 953, 958 n.1, 959 (E.D. La. 1997);
Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp.
1515, 1526 (D. Kan. 1995); Grinnell, 951 S.W.2d
at 429-31 ("we cannot simply assume that common
knowledge of the general health risks of tobacco
use naturally includes common knowledge of
tobacco’s addictive quality"); Rogers v. R.J.
Reynolds Tobacco Co., 557 N.E.2d 1045, 1054 (Ct.
App. Ind. 1990).

To get past summary judgment the plaintiffs
needed to produce evidence that tobacco’s
addictive nature--unlike its general health
risks--was generally unknown in 1935 and the
1950’s. In a world where the amount of
information is always expanding, going back in
time to determine the state of public knowledge
50 and 65 years ago is no easy task. But we can
think of three types of material that might help
show what the ordinary person knew about smoking
in 1935 and the early 1950’s: Public opinion
polls taken during those eras; other
contemporaneous assessments of public attitudes;
and information widely available to the public
through newspapers, magazines, television, or
other sources, from which one can infer what the
ordinary person might have known.

In the first category of evidence, the only
polling evidence was introduced by the defendants
and it addresses the public’s perception of
general health risks, not what the public knew
about smoking’s addictive danger. (Defense expert
Theodore A. Wilson said a 1954 nationwide Gallup
poll showed that 89.9 percent had heard or read
about the presumed connection between smoking and
lung cancer. Wilson also cited a 1960 poll of
youths by Scholastic Magazine in which 45.4
percent thought all smokers ran a greater risk of
lung cancer than nonsmokers, 19.6 percent thought
only heavy smokers ran a greater risk of lung
cancer, and 32.2 percent thought there might be
some connection but no conclusive link between
smoking and lung cancer.)

In the second category the record contains
several outside assessments that the public was
unaware of nicotine’s addictive nature. R.J.
Reynolds Tobacco Company research scientist
Claude E. Teague wrote in a 1972 planning
memorandum that "the things which keep a
confirmed smoker habituated and ’satisfied’, i.e.
nicotine and secondary physical and manipulative
gratifications, are unknown and/or largely
unexplained to the non-smoker." A Brown &
Williamson Tobacco Corporation marketing employee
wrote in a 1978 memo that "[v]ery few consumers
are aware of the effect of nicotine, i.e., its
addictive nature and that nicotine is a poison."
The Surgeon General’s 1988 report said that many
children and adolescents who experiment with
cigarettes "are unaware of, or underestimate, the
strength of tobacco addiction." One of the
plaintiffs’ experts, Dr. John Griest, stated in
his affidavit: "In my practice dealing with
nicotine addicted persons, I have found that most
were unaware of the highly addictive nature of
cigarette smoke until after they are addicted."
Griest’s statement is of little value, since it
is doubtful that the limited number of patients
he has seen is representative of the public at
large in 1935 and the early 1950’s. Though we are
mindful of the difficulty in coming up with
evidence that accurately gauges the state of
public information several decades ago, two stray
lines in industry memos and one sentence in a
government report strikes us as paltry.

In the third category the plaintiffs introduced
evidence of information disseminated by the
tobacco industry itself. For example, in 1954 the
Tobacco Industry Research Committee (which later
became the defendant Council for Tobacco
Research) took out a full-page advertisement
signed by the four defendant cigarette
manufacturers that was published in the 448
American newspapers serving cities with
populations of more than 25,000 people. Headed "A
Frank Statement to Cigarette Smokers," the
advertisement said "[w]e accept an interest in
people’s health as a basic responsibility,
paramount to every other consideration in our
business. We believe the products we make are not
injurious to health." The defendant Tobacco
Institute issued a news release in 1988 that said
statistics about the number of people who have
managed to quit smoking "contradict any claim
that smoking is an ’addiction.’ . . . The claims
that smokers are ’addicts’ defy common sense and
contradict the fact that people quit smoking
every day." In 1994 congressional testimony that
received widespread attention, the chief
executive officers of each of the defendant
manufacturers testified under oath that they did
not believe nicotine was addictive. To be sure,
the ordinary consumer does not soak up every
piece of information that appears in an
advertisement, or, for that matter, every word
that is printed in a newspaper or uttered by a
government agency. But knowing what information
was available to the general public gives the
fact finder a rough idea of what the ordinary
consumer might know.

The plaintiffs rely most heavily on reports
issued by the Surgeon General and other medical
authorities. The Surgeon General’s seminal 1964
report on smoking, for instance, said smoking was
habituating, but not addictive. The report
compared tobacco to coffee. It was not until 1988
that the Surgeon General declared smoking
addictive, comparing tobacco to cocaine. The
plaintiffs also offered a report by former U.S.
Food and Drug Administration head David A.
Kessler that said prior to 1980 no major public
health organization had determined that nicotine
was an addictive drug. The defendants belittle
this evidence as irrelevant, arguing that what
government authorities or medical experts say
does not reflect what the Average Joe on the
street knows. The plaintiffs’ point, however, is
that if the public health community did not
conclude until 1980 or 1988 that smoking is
addictive, surely the Average Joe could not have
known in 1935, 1951, or 1953 that smoking was
addictive. This is a valid inference, and on
summary judgment all inferences are drawn in
favor of the nonmoving party.

The evidence in this record that the ordinary
consumer at the time the plaintiffs began smoking
was unaware of smoking’s addictive danger is
surprisingly thin. Insolia has the strongest case
because he began smoking long before the first
Surgeon General’s report on smoking and 30 years
before the first warnings appeared on cigarette
packs. Whether the evidence amounts to a mere
scintilla or whether it is enough to overcome
summary judgment would be a close call, absent
anything else. The plaintiffs have made it easy
for us, however, by conceding that the ordinary
consumer at the time in question knew that
smoking was habit-forming. One of the defendants’
proposed findings of fact in the district court
was that "[t]he average American has long had the
common knowledge of the potential health hazards
associated with cigarette smoking and the habit-
forming nature of cigarettes." The plaintiffs’
response was to "[a]dmit that the average
American has been led to believe that cigarettes
are merely ’habit-forming’ as opposed to
’addictive,’ and has not understood cigarettes as
highly addictive drug delivery devices."

There might well be, as the plaintiffs argue, a
difference between a habit that can easily be
broken and a physiological addiction that is
difficult to stop. But as Judge Crabb noted, the
average consumer would not be preoccupied with
the esoteric difference between a "habit" and an
"addiction." If the average American knew smoking
was habit-forming, the average American knew it
would be hard to quit smoking. The fact that the
Surgeon General and other authorities called
smoking only "habituating" in 1964 and not
"addicting" until 1988 is a semantical
distinction beyond the grasp of our Average Joe.
There is a considerable difference between
knowing that smoking is bad and knowing that
smoking is addictive, but there is not much of a
difference between knowing that smoking is
habituating and knowing it is addictive. Once the
plaintiffs conceded that the ordinary consumer
knew that smoking was habit-forming, they created
an enormous burden for themselves that they have
not surmounted.

Based on this particular evidentiary record, no
reasonable trier of fact could find for the
plaintiffs that the ordinary consumer in 1935 and
in the early 1950’s did not appreciate the health
risks of smoking. This decision does not
foreclose the possibility that other plaintiffs
might prevail on a strict liability claim against
the tobacco industry. Another record in another
case might be different. Another plaintiff might
marshal better evidence that the haze of the
tobacco companies’ propaganda obscured whatever
health hazards were known to the average
consumer. We explicitly reject the tobacco
industry’s invitation to declare that cigarettes
are not unreasonably dangerous. But we do agree
with Judge Crabb that the plaintiffs in this case
did not meet their evidentiary burden on the
strict liability claim.

The next question is whether the plaintiffs’
negligence claim also falls prey to the consumer
contemplation test. Wisconsin law is not exactly
a model of clarity in delineating the difference
between strict liability, negligence per se, and
ordinary negligence. The best explanation,
however, comes from Justice Heffernan’s
concurring opinion in Greiten v. LaDow, 235
N.W.2d 677, 683-86 (Wis. 1975), which was
subsequently adopted as the court’s majority
opinion in Howes v. Deere & Co., 238 N.W.2d 76,
80 (Wis. 1976).

Interpreting Dippel v. Sciano, 155 N.W.2d 55
(Wis. 1967), Justice Heffernan said that the
finding of strict liability under the standards
of Section 402A is the equivalent of negligence
per se. Greiten, 235 N.W.2d at 684. Negligence
per se allows a plaintiff to recover where it is
impossible or unduly burdensome to prove that the
defendant acted negligently. Id. The plaintiff
need not prove fault. Instead, under a negligence
per se theory, the plaintiff need only prove that
a dangerously defective product caused the harm.
Id. at 685. The focus in negligence per se is on
the condition of the product, i.e., on the
results of the defendant’s actions. Id. at 685
n.2, 686.

The focus in ordinary negligence, on the other
hand, is on how the defendant created the
product, i.e., on the defendant’s conduct in
attaining the final result. Id. The plaintiff
must prove fault. Id. at 686. The plaintiff must
prove that the defendant failed to exercise
ordinary care and that this failure caused the
harm. Id. at 684-85.

In short, negligence per se is about effect,
while negligence is about conduct leading to that
effect. Negligence-- unlike negligence per se--
requires proving foreseeability. Conversely,
negligence per se--unlike negligence--requires
proving that the product was unreasonably
dangerous.

It is possible for a defendant to be both
negligent and negligent per se. "If the lack of
ordinary care results in a defective design, it
is indeed true that the product may well be
unreasonably dangerous even in the sense of
Dippel v. Sciano . . . . Where a plaintiff proves
negligence--in this case, the lack of ordinary
care in the design of a product--there is no
doubt that there may be recovery in the event the
defective design results in an unreasonably
dangerous product." Id. at 685.

It also is possible for a defendant to be
negligent, but not negligent per se. "[T]here may
be recovery for the negligent design of a product
even though it is not unreasonably dangerous in
the 402A sense." Id. As recently as last year the
Wisconsin Supreme Court affirmed this position.
Sharp v. Case Corp., 595 N.W.2d 380, 387-88 (Wis.
1999).

The issue for us is whether the plaintiffs’
negligence claim should go to a jury, even though
the consumer contemplation test of Section 402A
doomed their strict liability claim. The
plaintiffs, naturally, say yes, arguing that
their negligence claim revolves around the
defendants’ conduct in creating a foreseeably
hazardous product. The defendants say no,
characterizing the plaintiffs’ negligence claim
as a warmed-over version of their strict
liability claim. Judge Crabb categorized the
plaintiffs’ negligence claim as a "hybrid" that
combined components of strict liability
(cigarettes are unreasonably dangerous because
they are addictive and cause cancer) with
components of negligence (the defendants knew
when making and selling cigarettes that the
product was dangerous). This combination placed
the plaintiffs’ claim in the negligence per se
category, according to the district court, citing
Howes, 238 N.W.2d 76. Negligence per se is
governed by Section 402A, which shields
defendants from liability if the ordinary
consumer understood the product’s risks, and thus
the plaintiffs’ negligence (per se) claim fell
down the same chute as their strict liability
claim.

We disagree with this portion of the district
court’s thoughtful analysis in this difficult
case. First, though closely related to the strict
liability claim, the plaintiffs’ negligence claim
stands on its own. The plaintiffs’ negligence
claim revolves around the tobacco companies’
conduct in producing cigarettes. The plaintiffs
contend that while designing, manufacturing,
marketing, and selling cigarettes, the defendants
could foresee that cigarettes were addictive and
cause cancer. The plaintiffs argue that by going
forward with the product despite that knowledge,
the tobacco companies breached their duty of
ordinary care and thus are liable for negligence.
Their negligence theory that the defendants were
at fault during the process is independent of
their strict liability claim regarding the final
result.

Second, even if the plaintiffs’ negligence claim
contains ingredients of strict liability, we fail
to see any mandate in Howes that such a claim
must be treated as negligence per se. The
plaintiffs in Howes alleged negligence and strict
liability: negligence in how the product was
designed, manufactured, and marketed; strict
liability because the product was allegedly
unreasonably dangerous. 238 N.W.2d at 78. In
crafting the special verdict and instructions at
the close of trial, the court forced the
plaintiffs to choose between their negligence and
strict liability theories. Id. at 78-79. The
plaintiffs went with strict liability and lost.
Id. at 79. The Wisconsin Supreme Court reversed,
saying that the trial court should not
automatically have required the plaintiffs to
elect between the two theories because sometimes
the submission of both theories to the jury is
appropriate. Id.

Over the course of the opinion, what Howes
initially terms a "strict liability" claim
becomes referred to as "negligence per se." "We
here declare that when two grounds of negligence
are alleged it does not categorically follow that
the plaintiff must always elect one of the two
grounds of negligence for submission to the jury
. . . . This is especially so when the negligence
per se doctrine as formulated in Wisconsin
comparative negligence law from sec. 402A,
Restatement in Dippel, supra, and common law
negligence are both properly pleaded." Id.
(footnote omitted). Later, the court concludes
that the trial court erroneously thought that
"the issues of negligence were precluded by the
submission of the case to the jury on the
negligence per se doctrine." Id. at 80. Treating
negligence per se interchangeably with strict
liability is understandable, since the two are
close cousins, if not identical twins, under
Wisconsin law.

But nowhere does Howes transform the plaintiffs’
negligence claim into a negligence per se claim.
Throughout the opinion the plaintiffs’ negligence
claim is consistently called a "negligence"
claim. The former smokers’ claim of negligent
design and manufacture in this case is analogous
to the Howes’ plaintiffs’ negligence claim, not
to their strict liability claim. As we read it,
nothing in Howes requires categorizing the former
smokers’ negligence claim as a negligence per se
claim.

Perhaps the district court’s conclusion that
Howes refashioned the plaintiffs’ negligence
claim into negligence per se was based upon the
following passage:

Greiten v. LaDow, supra, emphasizes that when the
claim is based upon negligence, it is necessary
to prove what the seller or manufacturer did or
did not do; that there was a breach of the duty
of ordinary care and that the element of
foreseeability was encompassed as an element of
proof. It was also pointed out if such proof
demonstrated a defective condition unreasonably
dangerous to the user or consumer, the product
might well fall within the negligence per se
doctrine of Dippel, supra.

Howes, 238 N.W.2d at 80. In saying that a
negligence case might fall within the negligence
per se doctrine of Dippel if the proof of
negligence also demonstrated an unreasonably
dangerous condition, Howes merely reiterated
Greiten’s teaching that a defendant could be both
negligent and negligent per se, as discussed
earlier. Howes goes on to endorse Greiten’s
explanation of the distinction between negligence
and negligence per se--and Greiten made clear
that the negligence per se framework had not been
imposed upon negligence actions. "Dippel did not
intend to apply the dangerously defective
standard to an ordinary negligence case. It was
not intended to modify or to limit a plaintiff’s
right to recover, but to extend that right to
those circumstances where it was impossible to
allege the particulars of negligence. It was not
intended that Dippel be transplanted to
negligence actions." Greiten, 235 N.W.2d at 684.
Consequently, we part ways with the district
court’s assessment that Howes places the former
smokers’ negligence claims "squarely within the
negligence per se category."

It may seem puzzling that a defendant could be
found negligent for designing a product that in
the end is not found unreasonably dangerous.
Critics point out that "negligence requires a
jury to find that the product creates an
unreasonable risk of harm to the consumer; if the
jury finds that the product does not present an
unreasonable danger or defect in the strict
products liability sense, then the jury cannot
find the manufacturer negligent because the jury
cannot logically find an unreasonable risk of
harm to the consumer created by the
manufacturer’s conduct." Sharp, 595 N.W.2d at
388. Supporters argue that "a jury’s finding that
a defect did not create a quantum of danger
reaching the ’unreasonable’ level in deciding a
strict liability claim does not preclude a
finding that a defect existed that could have
been discovered and that failure to discover the
defect constituted a breach of a defendant’s duty
of ordinary care, thereby causing a plaintiff’s
injuries." Id. Puzzling or not, this is the law
in Wisconsin and we are bound to uphold that law.
Hansen v. Cessna Aircraft Co., 578 F.2d 679, 682-
84 (7th Cir. 1978).

Perhaps what the consumer contemplation test did
to the plaintiffs’ strict liability claim, the
concept of contributory negligence will do to the
plaintiffs’ negligence claim. That, however, is
not for us to decide. Apportioning negligence
generally is a question for the jury. See, e.g.,
Stewart v. Wulf, 271 N.W.2d 79, 84 (Wis. 1978).
As a matter of law, the plaintiffs’ negligence
claims are distinct from their strict liability
claims, and the district court erred in stubbing
out the former on summary judgment.

We now shift our attention to the plaintiffs’
claims that the tobacco companies conspired to
fraudulently conceal and misrepresent the health
risks of smoking. In contrast to their strict
liability claim that necessitated determining
only what the generic average beginning smoker
knew, the plaintiffs’ fraud claims require proof
that they specifically relied upon the alleged
misrepresentation or that they specifically were
victims of the alleged fraudulent concealment.
Because none of the plaintiffs could recall a
single statement from the tobacco industry about
the effects of smoking, Judge Crabb stamped out
their original fraud claims for lack of proof of
reliance and causation.

In briefing the summary judgment motion,
however, the smokers attempted to transform their
claim that they were directly defrauded into a
claim that the public health community was
defrauded and that they in particular suffered as
a result. The theory is that cigarette makers
concealed information about the addictive
qualities of nicotine, consequently the public
health community did not recognize until recently
that smoking is addictive, consequently no one
tried to create smoking cessation products until
recently, consequently the plaintiffs were unable
to quit smoking sooner, and consequently their
chances of avoiding lung cancer were diminished.

Aside from the tenuous and speculative link
between the defendants’ alleged concealment at
the beginning of the chain and the actual
injuries to these plaintiffs at the end of the
chain, the plaintiffs’ new theory runs into
another problem--namely, that it is new. "A
plaintiff may not amend his complaint through
arguments in his brief in opposition to a motion
for summary judgment." Shanahan v. City of
Chicago, 82 F.3d 776, 781 (7th Cir. 1996). The
smokers insist that their public health community
theory was not cooked up on summary judgment, but
already was lurking in their answers to certain
interrogatories. Given the plethora of paper
produced by a case like this, bits of information
in an interrogatory hardly provides the
particularity required of a fraud claim. See Fed.
R. Civ. P. 9(b).

Finally, the plaintiffs ask us to recognize a
tort claim of "intentional exposure to a
hazardous substance" or, alternatively, to
certify the issue to the Wisconsin Supreme Court.
Federal courts are loathe to fiddle around with
state law. Though district courts may try to
determine how the state courts would rule on an
unclear area of state law, district courts are
encouraged to dismiss actions based on novel
state law claims. Railway Express Agency, Inc. v.
Super Scale Models, Ltd., 934 F.2d 135, 138 (7th
Cir. 1991). When confronted with a state law
question that could go either way, the federal
courts usually choose the narrower interpretation
that restricts liability. Birchler v. Gehl Co.,
88 F.3d 518, 521 (7th Cir. 1996). Innovative
state law claims should be brought in state
court. Afram Export Corp. v. Metallurgiki Halyps,
S.A., 772 F.2d 1358, 1370 (7th Cir. 1985).

The plaintiffs say they tried to litigate this
in state court, but the tobacco companies--as
they generally do in cases like this--removed the
case to federal court. The plaintiffs are in a
predicament because state law in this area is
stunted by the ability of tobacco companies to
remove cases under diversity jurisdiction. Some
tobacco litigation, however, has taken place in
state courts. See, e.g., Ramos v. Philip Morris
Cos., Inc., 743 So.2d 24 (Fla. Dist. Ct. App.
1999); Small v. Lorillard Tobacco Co., Inc., 679
N.Y.S.2d 593 (N.Y. App. Div. 1998); Grinnell, 951
S.W.2d 420; Horton v. American Tobacco Co., 667
So.2d 1289 (Miss. 1996); Gilboy v. American
Tobacco Co., 582 So.2d 1263 (La. 1991); Forster
v. R.J. Reynolds Tobacco Co., 437 N.W.2d 655
(Minn. 1989). And even if the plaintiffs are in
something of a bind, that does not justify the
federal courts imposing a new tort claim on
Wisconsin.

That said, there is little indication that
Wisconsin courts would recognize the "intentional
exposure" claim the plaintiffs espouse. The
plaintiffs compare their claim to battery cases
in which physical force is not a requirement,
citing 19th century cases from other
jurisdictions. Commonwealth v. Stratton, 114
Mass. 303, 305-06 (1873); State v. Monroe, 28
S.E. 547, 548 (N.C. 1897). But Wisconsin battery
law requires unlawful physical touching and the
use of force or violence. Vandervelden v.
Victoria, 502 N.W.2d 276, 278 (Wis. Ct. App.
1993). The plaintiffs compare their claim to
nuisance cases, citing Vogel v. Grant-Lafayette
Elec. Coop., 548 N.W.2d 829, 834 (Wis. 1996)
(nuisance claim for stray voltage injury to
cattle), and Jost v. Dairyland Power Coop., 172
N.W.2d 647, 652 (Wis. 1969) (nuisance claim for
intentional emission of hazardous chemicals into
air that fell on crops). But nuisance requires
damage to property. Vogel, 548 N.W.2d at 834. The
plaintiffs cite a smattering of other cases that
they say recognize similar claims. Bennett v.
Larsen Co., 348 N.W.2d 540, 548 (Wis. 1984)
(applying pesticides in violation of a criminal
statute is negligence per se); Brabazon v.
Joannes Bros. Co., 286 N.W. 21 (Wis. 1939)
(intentionally spraying a substance toxic to
plaintiff may be grounds for a tort claim). But
we do not find these cases analogous and we
decline to invent what would be a truly novel
tort claim in Wisconsin.

We also decline to certify to the Wisconsin
Supreme Court the question of whether Wisconsin
courts would recognize an intentional exposure to
a hazardous substance claim. Certification may be
appropriate where there are unresolved questions
of existing state law, see, e.g., Hanlon v. Town
of Milton, 186 F.3d 831, 835 (7th Cir. 1999); In
re Badger Lines, Inc., 140 F.3d 691, 698-99 (7th
Cir. 1998); Shirkey v. Eli Lilly & Co., 852 F.2d
227 (7th Cir. 1988), but we simply cannot certify
every creative but unlikely state cause of action
that litigants devise from a blank slate.

In addition, we decline to certify whether the
average consumer for consumer contemplation test
purposes should be the adolescent beginning
smoker. The plaintiffs waived this issue by
failing to raise it in the district court.
Regardless, the plaintiffs’ scant evidence
supporting their strict liability claim would not
satisfy the test under even the most favorable
definition of the average consumer. Thus, the
issue is not controlling and is unsuitable for
certification. Hanlon, 186 F.3d at 835. Our
decision renders moot the plaintiffs’ request for
certification on the negligence issue.

Recapping our decision, we AFFIRM the district
court’s grant of summary judgment on the strict
liability, fraud, and intentional exposure to a
hazardous substance claims. We also AFFIRM Judge
Crabb’s decision not to certify any issues to the
Wisconsin Supreme Court. However, we REVERSE the
grant of summary judgment on the negligence claim
and REMAND that portion of the case to the district
court for further proceedings. The appellants
shall recover their costs in this appeal.
 Cudahy, Circuit Judge, concurring in part and
dissenting in part. Although the majority
presents an insightful commentary on much of the
evidence, it seems to me in addressing strict
liability to have lost sight of the demands of
summary judgment. As we all know, summary
judgment requires that, after viewing the
evidence in the light most favorable to the
nonmoving party, there are no genuine issues of
material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Further, summary judgment
is inappropriate "if the evidence is such that a
reasonable jury could return a verdict for the
nonmoving party," Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986), and a number of
the conclusions that the majority accepts as
clear simply fail to reach a degree of certitude
such that no reasonable juror could conclude to
the contrary. In fact, the state of public
appreciation of various health risks from
cigarette smoking fifty or more years ago is so
indeterminate as to make summary judgment on the
subject extraordinarily difficult.

To succeed on their strict liability claim, the
plaintiffs would have to show that "the average
consumer [did not] fully appreciate the attendant
risk of injury" associated with smoking. Sumnicht
v. Toyota Motor Sales, 360 N.W.2d 2, 16 (Wis.
1984). Under this standard, the central question,
in its most general terms, is how detrimental to
long-term health did the average beginning smoker
fifty years ago view cigarette smoking?
Cigarettes were called "coffin nails" as far back
as I can remember, but that certainly does not
mean that they were firmly linked to cancer fifty
years ago. Cigarettes were thought to contribute
to various respiratory ailments, and they were
believed to be inconsistent with serious athletic
training,/1 but a tie to lung cancer or heart
disease was not yet in the public mind. In fact,
the tobacco companies did their best to keep
these links out of the spotlight. In 1954, the
tobacco companies got together to publish their
notorious "Frank Statement" in which they stated
that "there is no proof that cigarette smoking is
one of the causes [of lung cancer]. . . . We
believe the products we make are not injurious to
health." T. Ex. 14145./2 In 1972, the Tobacco
Institute patted itself on the back for this
disinformation campaign in a memorandum, calling
it "brilliantly conceived and executed" and
"creating doubt about the health charge without
actually denying it." T. Ex. 20987. Thus, it
seems that the defendants tried to keep the full
risks of cancer from the public. At earlier
stages in this litigation, plaintiffs argued that
beginning smokers did not fully appreciate the
general health risks--knowing that smoking would
likely make a person short of breath or cough-
prone is far short of fully appreciating that
smoking could likely be fatal. But the majority
asserts that the issues of health-risk
appreciation have been narrowed to knowledge of
addictiveness. Based on the arguments before this
panel, I can accept this focus, but I do not
believe that limiting the inquiry to awareness of
addictiveness gets us closer to granting summary
judgment.

In the majority’s view, the key part of the
strict liability analysis involves the question
whether beginning smokers (whether "teenagers" or
"adults"--I’ll discuss this in a moment) regarded
cigarette smoking as either habit forming or
addictive--and whether these two attributes are
synonyms in the mind of the average beginning
smoker. The majority answers this question by
first noting the plaintiffs’ concession that the
average American saw cigarettes as "habit
forming"--a quality seen by the plaintiffs as
quite distinguishable from "addictive." The
majority then makes this concession a lever for
summary judgment by describing the difference
between a "habit" and an "addiction" as
"esoteric." The majority also regards the
difference between "habit forming" and
"addictive" as "a semantical distinction beyond
the grasp of our Average Joe."

Possibly things are that simple, but it is also
entirely possible that the ordinary beginning
smoker associated "habit forming" with the yen
for bon-bons, pistachio nuts or cups of coffee
but thought of heroin and cocaine when
"addiction" was mentioned. The unbreakable
bondage to hard drugs was probably in most minds
of quite a different order than everyday habits--
at least a reasonable jury could so conclude. The
plaintiffs did provide some evidence that
beginning smokers were unaware that cigarettes
were addictive,/3 see, e.g., Supp. App. at 53
(Affidavit of Dr. John H. Greist) ("I have found
that most [smokers] were unaware of the highly
addictive nature of cigarette smoke until after
they are addicted."); T. Ex. 13677 (Brown &
Williamson marketing memorandum from 1978) ("Very
few customers are aware of the effects of
nicotine, i.e., its addictive nature and that
nicotine is a poison."); T. Ex. 12408 (R.J.
Reynolds planning memorandum, entitled "The
Nature of the Tobacco Business and the Crucial
Role of Nicotine," written in 1972) ("[N]icotine
and secondary physical and manipulative
gratifications are unknown and/or largely
unexplained to the [beginning smoker]. He does
not start smoking to obtain undefined
physiological gratifications or reliefs, and
certainly he does not start smoking to satisfy a
non-existent craving for nicotine."), and it
seems to me that the state of mind of the
beginning smoker on this subject from 1935 to
1960 is not something that lends itself easily to
summary judgment--even if the evidence offered by
the plaintiffs is not overwhelmingly persuasive.

The majority points to no evidence that
suggests that this habit/addiction distinction
was "beyond the grasp of our Average Joe." In
making this assumption in favor of the
defendants, the majority has not only unfairly
demeaned the sagacity of the proverbial Joe but
has also ignored the mandate of summary judgment
that a court draw "all reasonable inferences in
favor of the nonmoving party." Anderson, 477 U.S.
at 255. Far from thinking it "esoteric," medical
professionals have understood the habit/addiction
distinction for years, and, until fairly
recently, they thought cigarettes were merely
"habit forming." Compare A. App. at 56 (1964
Surgeon General’s Report) ("In medical and
scientific terminology [the smoking process]
should be labeled habituation to distinguish it
clearly from addiction, since the biological
effects of tobacco, like coffee and other
caffeine-containing beverages, betel-morsel
chewing and the like, are not comparable to those
produced by morphine, alcohol, barbiturates, and
other potent addicting drugs.") (emphasis in
original) with A. App. at 58 (1988 Surgeon
General’s Report) ("Cigarettes . . . are
addicting. . . . The pharmacological and
behavioral processes that determine tobacco
addiction are similar to those that determine
addiction to drugs such as heroin and cocaine.").
Whether the Average Joe, beginning smoker
regarded cigarettes as being habit forming or
addictive or saw no distinction between these two
concepts fifty years ago is the kind of
comparative question that should be left to a
jury.

Whether the standard beginning smoker should be
taken to be a "teenager," as the plaintiffs
argue, or an "adult," as the majority determines,
also needs to be addressed./4 Here again the
requirements of summary judgment seem to be taken
lightly by the majority. The majority makes the
curious statement that "[m]ost smokers do begin
smoking in their teens, but the record does not
reflect this." In other words, it is common
knowledge that the typical beginning smoker is a
teenager, but somehow the record of this case
allows a grant of summary judgment based in part
on the thesis that such a smoker is older and
better-informed about the dangers of smoking and
the addictiveness of cigarettes. Thus, the path
towards summary judgment can be smoothed by
adopting factual assumptions somehow more
credible than common knowledge. This is very
implausible, and there is more than enough
evidence to support the hypothesis that beginning
smokers became addicted when they were still
children without any warning of the powerful
addiction to which they were becoming subject.
First of all, plaintiffs produced evidence that
the tobacco companies themselves targeted
teenagers as beginning smokers or were, at the
very least, aware that smokers begin in their
teens. See, e.g., T. Ex. 10299 (presentation to
Philip Morris Board of Directors in 1969) ("The
16 to 20-year old begins smoking for psychosocial
reasons."); Supp. App. at 68 (Summary of Expected
Expert Testimony of Richard W. Pollay) ("[T]he
tobacco industry has long displayed a strategic
interest in the youth market."). And although the
majority acknowledges that the plaintiffs’
evidence shows that "30 percent to 35 percent of
high school seniors in 1958 and 1966 smoked," it
dismisses this evidence as both "imprecise" and
"not pertinent to the question of what percentage
of smokers began smoking as teenagers." The
majority is correct that this is not direct
evidence of exactly how many smokers began
smoking as teenagers, but when one considers that
the plaintiffs also introduced evidence that only
6 percent of smokers quit each year, see T. Ex.
0054, attached to R.277: Ex. B (Jorenby et al.,
A Controlled Trial of Sustained-Release
Bupropion, a Nicotine Patch, or Both for Smoking
Cessation, New Eng. J. Med. 340:9 at 685-91 (May 4,
1999)), a jury could reasonably be left with the
conclusion that the vast majority of these high-
school smokers kept smoking through their adult
lives. Therefore, I believe that the majority was
hasty, and wrong, to determine as a matter of law
that the "beginning smoker" must mean the "adult
beginning smoker."

For these reasons, I respectfully dissent from
the majority’s analysis and conclusions
respecting strict liability.

FOOTNOTES

/1 But cigarette advertising certainly tried to
convey the opposite. For example, in 1952, the
American Tobacco Company ran the following
advertisement: "Frank Gifford in Action . . . The
young N.Y. Giant halfback was already a top star-
-and a Lucky Strike smoker." See Supp. App. at 61
(Summary of Expected Testimony of Richard W.
Pollay).

/2 Citations to the record come from three sources:
(1) appellants’ appendix, cited as "A. App. at
[page];" (2) appellee’s supplemental appendix,
cited as "Supp. App. at [page];" or (3) what
would have been plaintiffs’ trial exhibits, cited
as "T. Ex. [number]." All trial exhibits cited
can be found in the record attached as part of
Exhibit A to R.277, unless otherwise specified.

/3 The plaintiffs also provided some evidence that
cigarette manufacturers were well-aware of the
addictive quality of cigarettes but failed to
share it with the public. See, e.g., T. Ex. 10299
(report to Philip Morris Board of Directors in
1969) ("[T]he ultimate explanation for the
perpetuated cigarette habit resided in the
pharmacological effect of smoke upon the body of
the smoker."); T. Ex. 259 (internal memorandum by
general counsel for Brown & Williamson, 1963)
("[N]icotine is addictive. We are, then, in the
business of selling . . . an addictive drug.").

/4 This matters because the plaintiffs produced
evidence that the age of the smoker has some
bearing on smokers’ perceptions. See, e.g., Supp.
App. at 69-70 (Summary of Expected Expert
Testimony of Richard W. Pollay) ("Cigarette
advertising affects teens more than adults,"
citing articles).