(dissenting) :
With deference, I dissent from the majority opinion. I view the second trial of this case as having been fairly conducted under the standards laid down by this Court on remand, Green v. American Tobacco, 325 F.2d 673. Further, I can perceive no “cogent reason” 1 — either a change in controlling law or any other— for reversing the prior panel of this Court and directing that the court below enter judgment n. o. v. for plaintiffs on the issue of liability.
I.
I understand Part I of the majority opinion to hold the trial judge in error for refusing to strike the testimony of the defendant’s expert witnesses quoted on pages 103 and 104 of the opinion, to the general effect that they did not know the cause of cancer, and that they did not believe there was a causal connection between smoking and lung cancer. This line of testimony was opened up by and in direct response to testimony by the plaintiffs’ experts to the effect that cigarette smoking causes lung cancer in a sizeable part of the smoking population, that one out of nine or ten heavy cigarette smokers die of lung cancer, that 30,000 or 35,000 deaths yearly in the United States are caused by lung cancer caused by cigarette smoking and that *107there is a much greater incidence of lung cancer in the half of the adult population that smokes. The jury was left to draw the inference that defendant’s cigarettes are not reasonably fit for human consumption.
It should be noted that plaintiffs’ expert witnesses testified either on direct or cross-examination to similar lack of knowledge as to the cause of cancer.2
That long, costly and intensive research in depth aimed at discovering the cause or causes of cancer by both public and private agencies is continuing, and is so far unsuccessful is a matter of general, practically universal knowledge. It is a fact of our daily life as well known to laymen as to doctors or judges. Of course it was known to the members of this jury. The receipt of this intelligence could hardly have come as a shock to them.
In his jury instructions the trial judge made it abundantly clear that “in a previous determination it was determined that one of the proximate causes of his (Edwin Green’s) death was the smoking of these cigarettes.” Earlier the jury had been instructed: “It has been determined that Green smoked cigarettes and one of the proximate causes of his death was lung cancer caused by cigarettes. But now we are not concerned particularly with Green. We are concerned with whether or not cigarettes are reasonably fit and wholesome for the use of the general public to whom they are sold.”
It was iterated and reiterated by the instructions that the sole factual issues were (1) whether cigarettes are reasonably fit and wholesome for consumption by the public and (2) if they are not, what were plaintiffs’ proven damages. This was exactly the issue upon which the case was remanded for trial.
There is simply no basis for the majority’s conclusion that the admission of this testimony confused the jury “as to that which had already been determined to be a fact.” 3
II.
It would be harmful enough to this defendant, who has twice won this case before a jury, if the majority opinion stopped at the end of Part I. True, the parties would be put to the time, the trouble and the expense of yet another jury trial, but perhaps upon another trial on the issue directed to be tried by the earlier panel of this Court, the trial court could limit the testimony of the defendant’s experts in a manner to fit the objections of the majority.
But, the majority opinion says, “The matter does not end here”. In Part II of the opinion, it reaches the conclusion, assertedly based on two Florida Supreme *108Court cases 4 decided since the certification proceedings, that there has occurred a material change in controlling legal principles since the decision of the prior panel on the first appeal of this case, 325 F.2d 673. On this predicate the trial court is directed to enter judgment n. o. v. as to liability and to limit the third trial to the sole issue of damages.
I fail to find any material change in Florida law by reason of McLeod and Foley, supra. Indeed, further post-Green pronouncements of the Florida Supreme Court point to a diametrically opposite conclusion, to be commented upon later in this dissent.
McLeod decided that two retail druggists were not liable under an implied warranty of fitness for dispensing in the manufacturer’s original container upon physician’s prescription a drug known as “Mer/29” (advertised as a commodity for controlling body cholesterol) to a customer who suffered injury from taking the drug as directed by the physician. The petitioner (plaintiff-customer below) contended that the advisory opinion in Green v. American Tobacco Co., Fla., 154 So.2d 169, sustained his position.
In disposing of this contention the Florida Supreme Court said:
“There are several distinguishing elements. Green was a suit against a manufacturer. It involved a commodity which was available indiscriminately to the public generally. Green can be summarized as a case which applied a rule of absolute or strict liability to the manufacturer of a commodity who had placed it in the channels of trade for consumption by the public generally. The case before us is lacking in many of these significant elements.”
The language just quoted includes that quoted on page 101 of the majority opinion, and which is advanced at the top of page 105 of the opinion as categorically stating that Green applied the rule of absolute or strict liability to the situation now before us.
The majority seems to be captivated by the characterization in McLeod that Green “applied a rule of absolute or strict liability to the manufacturer of a commodity who had placed it in the channels of trade for consumption by the public generally”. In Green the Florida Supreme Court did apply a rule of absolute or strict liability in the sense that it said that liability did not depend upon knowledge or foreseeability of harmful effects. This was the question before it. Nevertheless, as the prior panel in this case recognized it made clear that this absolute or strict standard was to be applied to reasonable fitness for consumption.
The portions of the McLeod opinion quoted by the majority standing alone and out of context may plausibly appear to support the holding of the majority. However, immediately following the portion of McLeod quoted by the majority, we find further elaboration as to exactly what is involved in the McLeod case. The court stated: “In effect, the petitioner McLeod is asking us to impose upon these retail prescription druggists an absolute, strict liability without fault in an action in tort.” (Emphasis added) 174 So.2d at 739. On the same page, while summarizing its holding, the court further added: “The concept of strict liability without fault should not be applied to the prescription druggists in the instant situation.” (Emphasis added).
From the foregoing language, nothing could be clearer than that strict liability without fault is, and has been, well recognized by the Florida courts. Cliett v. Lauderdale Biltmore Corp., 39 So.2d 476 (Fla.1949); Seneer v. Carl’s Market, 45 So.2d 671 (Fla.1950). Where my brethren go astray is in equating the entirely separate concept of strict liability without fault with strict liability without re*109gard to a product’s reasonable fitness for consumption or use by the general public.
Foley, the other case relied upon by the majority, involved the implied warranty liability of a retail druggist for a defect in a container for reducing pills, known as “Thindown”, the container being a glass bottle which closed with a screw-on top. The purchaser’s wife attempted to open the bottle by unscrewing the top. The bottle broke, fragmented, and one piece lacerated her right wrist. The Florida Supreme Court took the case upon certiorari because the holding below that the plaintiffs had no cause of action against the retailer for breach of an implied warranty of fitness and merchantability was in direct conflict with Canada Dry Bottling Co. of Fla. v. Shaw, 118 So.2d 840 (2d D.C.A.1960), decided by the Second District Court of Appeal imposing liability upon both bottler and retailer. The case under review was approved and Canada Dry disapproved. Foley, therefore, stands for the proposition that as to defective containers causing injury Florida will not impose upon retailers liability for implied warranty of fitness. It decided nothing whatever with respect to liability of either manufacturer or retailer upon implied warranty with respect either to food or other product intended for human consumption. The Florida Supreme Court stated (Foley, page 227, 177 So.2d) that the exact question before it had not theretofore been presented to that court. It proceeded to discuss its prior holdings imposing liability upon both retailer-seller and manufacturer of foodstuffs sold in sealed containers for injuries caused by unwholesome or deleterious substances therein, citing Blanton v. Cudahy Packing Co., 154 Fla. 872, 19 So.2d 313 (1944) (manufacturer and packer of tinned meat), Sencer v. Carl’s Market, 45 So.2d 671 (Fla.1950) (retailer-seller of canned sardines), and Cliett v. Lauderdale Biltmore Corp., 39 So.2d 476 (Fla.1949) (unwholesome food served in dining room). It said that “as stated in the Cliett case, supra, and reaffirmed in Sencer v. Carl’s Market, supra, 45 So.2d 671, 672”, and then proceeded to set forth the language quoted by the majority at the top of page 106 of the majority opinion. The point here is that all these cases were before and discussed by the Florida Supreme Court when it answered our certified question at 154 So.2d 169. The Blanton case is quoted in footnote 7, on page 171, coupled with a citation to Cliett. The holding in Sencer v. Carl’s Market is discussed extensively on page 171. By no interpretation, no matter how strained, could Foley logically or reasonably be viewed as a change in applicable Florida law when the portion of the opinion relied on by the majority is a quote from a Florida case decided eighteen years ago.
The references in Foley and McLeod to the holding of Green as establishing strict liability must be read in context. In these and other cases the reference to strict or absolute liability has reference only to the long followed concept that liability is imposed for defective products regardless of whether the defect could have been discovered by the manufacturer. This is a common use of terminology to distinguish between the negligence concept of fault as opposed to the implied warranty concept of liability regardless of fault. Carter v. Hector Supply Co., 128 So.2d 390 (Fla.1961); Cliett v. Lauderdale Biltmore Corp., supra; and Miami Coca Cola Bottling Co. v. Todd, 101 So.2d 34 (Fla.1958).
It is significant to me that neither in their original brief nor in their reply brief did the appellants, despite urging this Court to reverse the prior panel, refer in any way to either McLeod or Foley. To further emphasize the radical interpretation the majority now places on Foley, we note that plaintiffs’ counsel in the instant case were likewise counsel in Foley. Yet Foley was not cited or relied upon — nor even referred to — by plaintiffs until after this court requested supplemental briefs from counsel as to whether or not McLeod and Foley required that judgment n. o. v. be entered for the plaintiffs on liability. These are *110capable and experienced Florida lawyers, especially skilled in representation of plaintiffs in personal injury and death cases, including specifically cases involving products liability. It strains credulity to assume that their failure to cite McLeod and Foley originally was the product of oversight. Rather, the more logical conclusion is simply that Foley and McLeod were not relied upon by plaintiffs’ counsel for the obvious reason that neither case stands for the proposition for which it is cited by my brethren. The theory that these two cases signal a departure by the Supreme Court of Florida from the advice given us at 154 So.2d 169 is completely original with the majority opinion in this case.
In substance, my position is that the majority has failed to recognize the uniqueness of the situation presented. We are not dealing with an obvious, harmful, foreign body in a product. Neither do we have an exploding or breaking bottle case wherein the defect is so obvious that it warrants no discussion. Instead, we have a product (cigarettes) that is in no way defective. They are exactly like all others of the particular brand and virtually the same as all other brands on the market. The statement of Judge Goodrich, in a concurring opinion in Pritchard v. Liggett and Myers Tobacco Co., 295 F.2d 292, 302 (3 Cir. 1961), is equally applicable here:
“If a man buys whiskey and drinks too much of it and gets some liver trouble as a result I do not think the manufacturer is liable unless (1) the manufacturer tells the customer the whiskey will not hurt him or (2) the whiskey is adulterated — made with methyl alcohol, for instance. The same is surely true of one who churns and sells butter to a customer who should be on a nonfat diet. The same is true, likewise, as to one who roasts and sells salted peanuts to a customer who should be on a no-salt diet. Surely if the butter and the peanuts are pure there is no liability if the cholesterol count rises dangerously.” (Emphasis added).
It is significant to note that in the instant case there has never been even an attempt to prove either of the two above listed exceptions. Inability to prove a specific defect would not preclude liability if there was proof the product was unreasonably dangerous without a defect.
Even under the new strict liability in tort (as opposed to an action in warranty) theory found in Section 402A of the Restatement of Torts (Second), Comment i provides: “Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.”
On March 1, 1967, the Florida Supreme Court decided the case of Community Blood Bank Inc. v. Russell, 196 So.2d 115, and provided several indications as to the precise holding in Green and the state of the law in Florida. Russell involved the liability of a blood bank for blood sold containing the medically undetectable and unremovable serum hepatitis. In reviewing the action of the District Court of Appeal, the court cited Green with approval as authorizing remand “for trial on issues of fact.” (Emphasis supplied) 196 So.2d at 117. Such a recent pronouncement by the Florida Supreme Court in Russell that Green was properly remanded by the prior panel, certainly runs counter to the majority’s decision that judgment should be entered for the plaintiffs on liability as a matter of law.
Justice Roberts of the Florida Supreme Court filed a specially concurring opinion in Russell. His views are interesting, though concededly not an expression binding the Court. In his special concurrence in Russell he indicates that to allow avoidance of liability because of inability to detect or remove the serum hepatitis “runs counter to the very basis of the strict or implied warranty theory of liability — that is, liability without fault— and is in direct conflict with the decision of this court in Green v. American To*111bacco Co., supra, 154 So.2d 169.” 196 So.2d at 119 (Emphasis added).
At another point Justice Roberts explained the court’s holding in McLeod as follows: “ [W] e held that the retail druggist could not be held liable on the theory of breach if [sic] implied warranty of merchantability where the drug supplied to the plaintiff was, in fact unadulterated.” 196 So.2d at 120. It was Justice Roberts’ observation that the key word was “unadulterated”. To further explain, he added:
“There is a clear distinction between a product which is not adulterated— one which meets all the standards established for a particular product but which is attended with a known risk to the consumer — and a product which is, in fact, adulterated and defective— that is, which does not meet the standards established for this particular product — and which would, because of such unknown and undetectable defect, produce a harmful effect upon any consumer thereof.” 196 So.2d at 120 (Original emphasis).
Justice Roberts then concluded that McLeod, in which there was no liability, was distinguishable because there was no defect or adulteration, but that there should be liability in Russell because the blood was in fact adulterated or defective by virtue of the presence of the serum hepatitis albeit undetectable and unremovable.
If Justice Roberts’ elaboration is taken as correct, and certainly nothing was said or decided in Foley or McLeod which in any way contradicts the above quoted passage, then the Florida position on implied warranty is clearly one in which there has to first be an actual adulteration in the product before there can be liability from harm resulting from its use. Dean Prosser has reached the same conclusion, i. e., that “there is no strict liability when the product is fit to be sold and reasonably safe for use. * * * ” 5
(Emphasis added).
It has been firmly established by the prior panel for purposes of this case that the cigarettes are not adulterated:
“There has never been presented by the evidence any contention that Lucky Strike cigarettes were more dangerous or had a greater propensity to cause lung cancer than cigarettes bearing other brand names. Nor has there been any contention that the cigarettes which Mr. Green smoked contained any foreign substance, or any spoiled, contaminated or other substandard ingredient which caused his injury and death. Instead, plaintiffs’ contention from the beginning has been that cigarettes — not Lucky Strike cigarettes alone — cause lung cancer.” 325 F.2d at 676.
My research has not revealed any Florida decision finding a manufacturer liable in which there was not some defect or adulteration in the product. For the majority now to decide that proof of a defect or adulteration (or at least that the harmful effects of the product are felt by a substantial segment of the public) is no longer necessary, as a matter of law, goes far beyond anything yet decided or even foreshadowed in the Florida decisions.
One further source will be discussed relative to my position in this dissent, and that is the Florida Supreme Court’s advisory opinion in this case. At the outset the Florida Supreme Court was careful to delineate what it was and was not called on to decide. Th,e first pertinent portion of the opinion is as follows:
“We conclude also that the question thus framed does not present for our consideration the issue of whether the cigarettes which caused a cancer in this particular instance were as a matter of law unmerchantable2 in Florida un*112der the stated conditions, nor does it request a statement of the scope of warranty implied in the circumstances of this case.” 154 So.2d 170.
Further on the court stated that it likewise was not called on to decide whether the product was reasonably fit and wholesome for its general purpose.
In footnote 2 to the preceding quotation, the Florida court refers to Section 25 of Frumer and Friedman, Products Liability, wherein cases are collected involving products whose contents are sufficiently repulsive so as to require no proof of unwholesomeness. Such cases include those where the product contained mice, flies, slime, mud, bugs, roaches and worms. Little doubt exists that the presence of such articles in a product intended for human consumption renders said product unwholesome or unmerchantable as a matter of law.
The same footnote refers to Section 29.03[1] of Fruman and Friedman which the court noted discussed “the problem of individual reactions to ordinarily harmless substances”, [the theory on which this case was tried the second time, after remand] “discussion of which we deem unwarranted here because of the lack of Florida precedent and the limited issue posed in this non-adversary proceeding.”
Again, in footnote 11 the Florida Supreme Court quotes with approval Frumer and Friedman’s analysis of a Wisconsin case to the effect that: “ ‘What is to be reasonably expected by the consumer is a jury question in most cases; * * * This test as applied to an action for breach of the implied warranty is keyed to what is “reasonably fit” ’ ” ’. (Emphasis added)
The majority has relied at pages 100, 101 and 105 of the majority opinion on the “actual safety” language of the Florida Supreme Court as establishing liability. Such reliance is misplaced. If the construction by the majority is correct, American Tobacco has been made an insurer.
In my view what and all that is said about “actual safety” is that it is paramount to industry standards. The latter portion of the paragraph on page 173 of Green makes it clear that the Florida Supreme Court’s references to the “actual safety” of a product were not intended to be construed as a modification of the test of whether a product is reasonably fit for human use and consumption.6
It is my opinion that the above mentioned guarded statements of the Florida Supreme Court as to what it was not called on to decide as well as the footnoted references to vitally important areas of products liability defense which were not to be discussed is a clear indication that the action of the prior panel in remanding for a new trial as to the cigarettes’ reasonable fitness was eminently correct. Any other conclusion would be supported only if the Florida *113Supreme Court had clearly and affirmatively ruled that when the defendant’s cigarettes caused the plaintiff’s fatal cancer, as the first jury had found and of which the Florida Supreme Court was aware, the Lucky Strikes were unmerchantable as a matter of law. The Florida Supreme Court’s decision in Green has never been criticized by that court. Nor has the Florida Supreme Court ever indicated that the prior panel of this court was incorrect in remanding for a new trial, limited to the question of whether Lucky Strikes were “reasonably fit and wholesome.” Indeed, the Florida Supreme Court specifically approved of the remand in Green “for trial on issues of fact.” Community Blood Bank, Inc. v. Russell, supra.
A final supporting reference can be found in Fruman and Friedman, supra, Vol. 2, § 16.03[4], p. 62, wherein the authors analyzed the Florida Supreme Court’s opinion in Green and concluded that “Whatever the scope of the warranty, the tenor of the opinion is that it is at least for [the] jury to say whether cigarettes which cause cancer * * * are reasonably fit for human consumption, unfettered by limitation that [the] manufacturer does not warrant against unknowable risks.” (Original emphasis) Even though the authors are not in accord with what they view as the Florida position, their conclusion that the issue of reasonable fitness is for the jury is at odds with the construction of the opinion by the majority of this panel, viz: that this issue should be decided as a matter of law.
Further, it should be emphasized, as set forth in the majority opinion of the prior panel. (325 F.2d 673, at page 676, under headnote 2) that the original jury was charged as follows:
“The manufacturer of products which are offered for sale to the public in their original package for human consumption or use impliedly warrants that its products are reasonably wholesome or fit for the purpose for which they are sold, but such implied warranty does not cover substances in the manufactured product, the harmful effects of which no developed human skill or foresight can afford knowledge.” (Emphasis supplied in original opinion)
Judge Rives then points out that this was taken verbatim from plaintiffs’ requested written instruction No. 11 as to which the plaintiffs consented to the insertion of the adverb “reasonably” to modify “wholesome or fit”, and that defendant did not object to the emphasized portion. Judge Rives continued: “As a part of the law of this case the parties are, therefore, bound by the scope of the implied warranty as so defined by the district court.” (Emphasis mine.)
Thus, (1) on the first trial the district court and both parties recognized “reasonably wholesome or fit” as the scope of the implied warranty as the law of the case, (2) the Supreme Court of Florida recognized it as the scope of the implied warranty, (3) this Court on the prior appeal specifically identified this concept as the law of the case, and directed the lower court to follow it on retrial, (4) upon retrial the lower court carefully followed directions, and (5) there has been no intervening change in the applicable Florida law. If there is such a thing as the “law of the case” ever being permanently and impregnably established, the series of events listed above should establish for all time and for all purposes of this case that the scope and nature of the implied warranty here is one of “reasonable wholesomeness and fitness for use by the public.”
By a stroke of the majority’s pen this consistent treatment of the question by the parties and by all the courts involved is obliterated from the record. It is as though what the record clearly shows did happen never happened at all. On the record before us, I cannot concur.
Respectfully, but vehemently, I dissent from the holding of both Part I and Part II of the majority opinion. I would affirm the trial court and write “FINIS” to this long and troublesome litigation.
. Lumbermens Mutual Casualty Co. v. Wright, 5 Cir.1963, 322 F.2d 759 at 763; cert. denied 354 U.S. 939, 77 S.Ct. 1397, 1 L.Ed.2d 1536; Lincoln National Life Insurance Co. v. Roosth, 5 Cir.1962, 306 F.2d 110.
. Dr. Winder: “Nobody knows what the basic cause of cancer is * * * ” (R. 184) (Direct). Dr. Devin: “there is no known essential cause of * * * any form of cancer. As a matter of fact we are not even sure that cancer is a disease that has an essential cause.” (R. 328-329) (Cross). Dr. Heller: “It is a virtual impossibility to particularize upon a cause of any cancer in a single individual” (R. 231) and “We do not know the reasons why cells proliferate and become invasive cancers”. (R. 234) (Cross). Dr. Tate conceded that his position “boils down to” getting rid of cigarette smoke “until we find out the cause”. (R. 390) (Cross).
. The conclusion that the jury was confused is further refuted by footnote 14.5h of Framer and Friedman’s, Product’s Diability, Vol. 2, § 16.03[4], wherein the jury foreman on the second trial of the case was quoted as saying: “If we had to decide if cigarettes are safe, we would have said ‘no’ Mr. Mucino, a 35-year-old savings and loan company executive, said. But the judge told us specifically to decide if cigarettes are reasonably safe and wholesome for human consumption. We were told to assume Mr. Edwin M. Green died of cancer. We didn’t determine that. We decided the hey word was ‘reasonable.’ What is absolutely safe? For some people smoking is not safe; for others it is. Is 20 to 30 years reasonable? We decided it was.” New York Times, Nov. 30, 1964. (Emphasis added). This extrajudicial source reveals that the jury was anything but misled.
. McLeod v. W. S. Merrell Co., Div. of Richardson-Merrell, Inc., 174 So.2d 736 (1965); and
Foley v. Weaver Drugs, Inc., 177 So.2d 221 (1965).
. Prosser, The Pall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791, 812 (1966).
. “The contention that the wholesomeness of a product should be determined on any standard other than its actual safety for human consumption, when supplied for that purpose, is a novel proposition in our law, and one which we are persuaded has no foundation in the decided cases. To hold that prevailing industry standards supplant the ordinary standard of objective truth and proof, and should be conclusive on the issue of a product’s reasonable fitness for human use or consumption, would be to shift to the purchaser the risk of whatever latent defectiveness may ultimately be proven by experience and advancement of human knowledge, a risk which we are convinced was from the inception of the implied warranty doctrine intended to be attached to the mercantile function. There exists, we think, no real alternative and no valid objection to this distribution of the burden, if the public health is to be protected in any practical sense from exploitation by those who, for a profit motive, undertake to supply the vast and ever increasing variety of products which the people by unprecedented powers of commercial persuasion are daily urged to use and consume.” (Emphasis added) 154 So.2d at 173.