Burton v. R.J. Reynolds Tobacco Co.

F I L E D
United States Court of Appeals
Tenth Circuit

FEB 9 2005
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

DAVID BURTON,

Plaintiff - Appellee,
v.
No. 02-3262
R.J. REYNOLDS TOBACCO
COMPANY,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 94-CV-2202-JWL)

Robert H. Klonoff, Jones Day, Washington, D.C. (Paul R. Reichert, Jones Day,
Washington, D.C., and M. Warren McCamish, Williamson & Cubbison, Kansas
City, Kansas, and Sydney McDole and Catherine L. Bjorck, Jones Day, Dallas,
Texas, with him on the briefs) for Defendant-Appellant.

Kenneth B. McClain (Donald H. Loudon, Jr., and Scott B. Hall, with him on the
brief), Humphrey Farrington & McClain, P.C., Independence, Missouri, for
Plaintiff-Appellee.

Before EBEL, McKAY, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.
 David Burton (“Burton”) sued R.J. Reynolds Tobacco Co. (“Reynolds”)

alleging that it caused the loss of his legs by fraudulently concealing, failing to

warn of, and failing to test for the dangers of cigarette smoking. After a thirteen

day trial, the jury found in Burton’s favor on three of his claims for relief,

authorized punitive damages, and awarded Burton $196,416 in compensatory

damages. Subsequently, the court awarded Burton $15 million in punitive

damages. Reynolds appeals the jury verdict and award of compensatory and

punitive damages. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and

REVERSE the jury’s verdict on liability in part, REVERSE the dependent award

of punitive damages, and AFFIRM other aspects of the judgment.

I

In 1950, around the same time he quit high school to help support his

mother, brothers, and sisters, plaintiff David Burton began to smoke Camel and

Lucky Strike cigarettes. He was 14 or 15 years old. For the next 43 years, Burton

continued to smoke because, as he explained, he enjoyed the taste. Burton did not

go to physicians for check-ups and claimed to have never been sick. It was not

until the summer of 1993, when Burton began to develop problems walking due to

poor circulation, that he went to see a physician. His treating physician informed

him that his circulation problems were caused by his cigarette smoking and

advised him to “stop smoking or his legs were going to rot off.” Doubting

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whether cigarettes were causing his leg problems, Burton sought two other

medical opinions, both of which confirmed the initial diagnosis. The third doctor

recommended vascular bypass surgery in order to resolve his circulatory

problems. In the meantime, despite his doctors’ warnings, he did not initially

attempt to quit smoking. In the fall of 1993, Burton underwent the recommended

bypass surgery, which was unsuccessful, and shortly thereafter both of his legs

were amputated below the knee. He stopped smoking while he was admitted to

the hospital but started again after he was discharged. Burton finally quit

smoking when, as he recounts, his physician warned him: “If it took your legs, it

will take your arms.”

Following the amputation of his legs, Burton brought this products liability

action in 1994 against Defendants, Reynolds, the manufacturer of Camel

cigarettes, and The American Tobacco Co. (“American”), the manufacturer of

Lucky Strike cigarettes. Basing his complaint on the fact that he had been

addicted to cigarettes and that cigarette smoking caused his peripheral vascular

disease (“PVD”), he alleged numerous claims under Kansas law, including

defective design, negligent failure to warn, negligent failure to test, breach of

express warranty, fraudulent concealment, conspiracy to conceal, and fraudulent

misrepresentation.

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 In 1995, the district court granted defendants’ joint motion for summary

judgment in part, and dismissed Burton’s fraudulent misrepresentation and breach

of express warranty claims. Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp.

1515, 1527-28 (D. Kan. 1995). The court also dismissed any claims based on a

post-1969 failure to warn as preempted by the Public Health Cigarette Smoking

Act of 1969 (“1969 Act”). 15 U.S.C. §§ 1331-1340; Burton, 884 F. Supp. at

1521.

Proceeding to trial on the remaining claims in 2002, a jury returned a

verdict for Burton on his fraudulent concealment, pre-1969 negligent failure to

warn, and negligent failure to test claims. Burton v. R.J. Reynolds Tobacco Co.,

205 F. Supp. 2d 1253, 1255 (D. Kan. 2002).

In awarding compensatory damages in the amount of $196,416 against

Reynolds and $1,984 against American, the jury also authorized an award of

punitive damages against Reynolds based on Burton’s fraudulent concealment

claim. Id. Pursuant to this authorization, the district court awarded Burton

punitive damages in the amount of $15 million. Id. Defendants’ motion for

judgment as a matter of law and, in the alternative, for a new trial, having been

denied, Burton v. R.J. Reynolds Tobacco Co., 208 F. Supp. 2d 1187, 1214 (D.

Kan. 2002), Reynolds now appeals.

II

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 With regard to the jury’s verdict on Burton’s fraudulent concealment claim,

Burton v. R.J. Reynolds Tobacco Co., 205 F. Supp. 2d 1253, 1255 (D. Kan.

2002), Reynolds argues, first, that Kansas courts would not recognize a claim for

fraudulent concealment under the facts of this case, and, second, that the verdict

is not supported by sufficient evidence. Because we agree with Reynolds’ first

contention, we need not address the second.

A

We review a district court’s interpretation of state law de novo.

Blackhawk-Cent. City Sanitation Dist. v. Am. Guar. & Liab. Ins. Co., 214 F.3d

1183, 1188 (10th Cir. 2000). Under Kansas law, to establish fraudulent

concealment, or “fraud by silence,” the plaintiff must prove by clear and

convincing evidence that: (1) the defendant had knowledge of material

information the plaintiff did not have and could not have discovered through the

exercise of reasonable diligence; (2) the defendant had a duty to communicate

that information to the plaintiff; (3) the defendant deliberately failed to

communicate the information to the plaintiff; (4) the plaintiff justifiably relied on

the defendant to communicate the information; and (5) the plaintiff was injured

by the defendant’s failure to communicate the information. Miller v. Sloan,

Listrom, Eisenbarth, Sloan & Glassman, 978 P.2d 922, 932 (Kan. 1999).

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 Not every nondisclosure is a fraudulent concealment. Robinson v. Shah,

936 P.2d 784, 790 (Kan. Ct. App. 1997). Nondisclosure becomes fraudulent only

when it violates a duty to disclose. See id. “A party has a duty to disclose

material facts if the party knows that the other is about to enter into the

transaction under mistake as to such facts, and that the other, because of the

relationship between them . . . would reasonably expect disclosure of such facts.”

OMI Holdings, Inc. v. Howell, 918 P.2d 1274, 1300-01 (Kan. 1996). Such

relationships giving rise to the duty to disclose may include certain kinds of

disparate contractual relationships, as well as fiduciary relationships. See

DuShane v. Union Nat’l Bank, 576 P.2d 674, 679 (Kan. 1978) (holding that a duty

to disclose may arise “between two contracting parties when there is a disparity of

bargaining powers or of expertise,” or “[i]f the parties to a bargain are in a

fiduciary relationship to one another”); Flight Concepts Ltd. P’ship v. Boeing

Co., 38 F.3d 1152, 1158 (10th Cir. 1994) (“The duty to disclose arises under

Kansas law when there is a fiduciary relationship which may be created by

contract or may arise from the relationship of the parties.”).

Burton does not suggest that Reynolds was bound by a contractual

relationship creating a fiduciary duty, but does argue that Reynolds owed him a

fiduciary duty nonetheless. Kansas courts have identified the following principles

to consider in determining whether a non-contractual fiduciary relationship exists:

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 A fiduciary relationship imparts a position of peculiar confidence
placed by one individual in another. A fiduciary is a person with a
duty to act primarily for the benefit of another. A fiduciary is in a
position to have and exercise, and does have and exercise influence
over another. A fiduciary relationship implies a condition of
superiority of one of the parties over the other. Generally, in a
fiduciary relationship, the property, interest or authority of the other
is placed in the charge of the fiduciary.

Denison State Bank v. Madeira, 640 P.2d 1235, 1241 (Kan. 1982) (emphasis

added). Cautioning against an approach to fiduciary relationships that would

“convert ordinary day-to-day business transactions into fiduciary relationships

where none were intended or anticipated,” id. at 1243, Kansas courts have warned

that: “one may not abandon all caution and responsibility for his own protection

and unilaterally impose a fiduciary relationship on another without a conscious

assumption of such duties by the one sought to be held liable as a fiduciary.” Id.

at 1243-44 (holding no fiduciary relationship existed between bank and debtor).

Moreover, we have noted that under Kansas law a fiduciary duty must be

consciously assumed. Rajala v. Allied Corp., 919 F.2d 610, 615 (10th Cir. 1990)

(applying Kansas law).

Because no Kansas authority has determined whether an ordinary consumer

transaction for the sale of a product creates a fiduciary relationship between the

product manufacturer and the consumer, we must determine how Kansas courts

would decide the issue. See United States v. DeGasso, 369 F.3d 1139, 1145-46

(10th Cir. 2004) (federal courts predict state court interpretations in light of state

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appellate court opinions, decisions from other jurisdictions, statutes, and

treatises). Applying Kansas law, however, a federal district court has stated:

A buyer/seller relationship does not create a fiduciary duty because
the parties are dealing at arm’s length and seeking for themselves the
best advantage. . . . Since it almost goes without saying that the seller
of a product will likely know more about its features and capabilities
than would the buyer, this superior knowledge is hardly a basis for
grounding a fiduciary relationship.

Ritchie Enterprises v. Honeywell Bull, Inc., 730 F. Supp. 1041, 1053-54 (D. Kan.

1990) (internal quotations and alterations omitted). In general, other courts

recognize that the relationship between a product buyer and seller does not of

itself create a fiduciary obligation. See 37 C.J.S. Fraud § 6 (2003) (“Most

business or contractual relationships, such as those between buyer and seller . . .

do not of themselves create fiduciary obligations.”); 63A Am. Jur. 2d Products

Liability § 892 (2003) (“Absent a confidential relationship between seller and

buyer, the product seller has no duty to speak, which is necessary to make silence

the equivalent of fraudulent concealment.”); State v. Parris, 578 S.E.2d 736, 742-

43 (S.C. Ct. App. 2003) (collecting cases).

Without focusing on the specific requirements necessary to establish a

“duty to disclose” as a predicate for finding fraudulent concealment under Kansas

law, the district court relied on Tetuan v. A.H. Robins Co., 738 P.2d 1210 (Kan.

1987), to support the claim for fraudulent concealment. In Tetuan, the court

upheld a verdict finding that the manufacturer of her prescription intrauterine

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device, fraudulently misrepresented and/or concealed the dangers of the device.

Id. at 1216, 1228-32. As we read the case, however, Tetuan does not eliminate

the necessity of proving either a special or fiduciary relationship that creates the

duty to disclose in a fraudulent concealment claim

To the extent that Tetuan endorsed a fraudulent concealment claim against

manufacturers of prescription medical devices in a product liability lawsuit, we do

not believe that Kansas courts would extend that endorsement to fraudulent

concealment claims against a manufacturer of cigarettes. Tetuan involved an

“ethical” (i.e., prescription) device, a fact we find significant for two reasons.

First, Kansas recognizes that ethical drug and device manufacturers owe a

continuing, post-sale duty to warn of product dangers, whereas manufacturers of

other products generally owe a duty to warn of product dangers only at the time of

sale. 1 See Patton v. Hutchinson Wil-Rich Manufacturing Co., 861 P.2d 1299,

1309 (Kan. 1993); Richter v. Limax Int’l, Inc., 45 F.3d 1464, 1467 n.3 (10th Cir.

1995). Accordingly, the sale of an ethical drug or device establishes a continuing

relationship between the manufacturer and the patient, a relationship which does

not exist between a cigarette manufacturer and purchaser.

1
Kansas also recognizes that manufacturers have a post-sale duty to warn
purchasers who “can be readily identified or traced” by the manufacturer. Patton,
861 P.2d at 1313.

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 Second, patients who receive medical prescriptions necessarily trust others

to act in their best interest. Authority and control over the patient’s medical well-

being is placed in the hands of another – namely, the patient’s physician,

pharmacies, and the pharmaceutical companies charged with apprising physicians

and patients of the information necessary for the safe and effective administration

of the product and follow-up. Accordingly, the relationship imparts a “peculiar

confidence placed by one individual in another” and is therefore reasonably

considered a “fiduciary” relationship under Kansas law. See Denison State Bank,

640 P.2d at 1241. The same cannot be said, however, of non-prescription

products chosen exclusively by the consumer. Cf. OMI Holdings, 918 P.2d at

1301-02 (suggesting that Tetuan’s holding may be limited to situations involving

learned intermediaries or ethical products). In light of the cautionary approach to

fiduciary relationships mandated by the Kansas courts, and in light of the weight

of core authority holding that the relationship between a product buyer and seller

is not fiduciary in nature, we conclude that ordinary transactions for the sale of

cigarettes do not, as a matter of Kansas law, create such fiduciary relationships.

Because a fiduciary relationship does not arise, claims that a cigarette

manufacturer has not warned of known product dangers are generally not

cognizable as fraudulent concealment claims under Kansas law. Rather, they are

cognizable as failure to warn claims. See Hamner v. BMY Combat Sys., 869 F.

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Supp. 888, 893 (D. Kan. 1994) (applying Kansas law). To hold otherwise would

convert all product manufacturer’s duty to warn claims into fraud claims. We do

not believe Kansas courts would intend such a result. Cf. Bonin v. Vannaman,

929 P.2d 754, 764-65 (Kan. 1996) (holding that even if all elements of fraudulent

concealment are satisfied, plaintiff has no fraudulent concealment claim against

physician for what is in essence a medical malpractice claim).

In apparent recognition of these problems, Burton claims that his purchase

of cigarettes from Reynolds was not an ordinary consumer transaction because

Reynolds affirmatively led consumers to believe that Reynolds was diligently

investigating the harmful effects of its products and would promptly disclose

health and safety information to the public. In support of this argument, Burton

points to Reynolds’ publication in 1954 of the Frank Statement to Cigarette

Smokers. In the Frank Statement, Reynolds and other tobacco companies stated

that “[w]e accept an interest in people’s health as a basic responsibility,

paramount to every other consideration in our business,” and pledged “aid and

assistance to the research effort into all phases of tobacco use and health.” To

this end, the Frank Statement announced the creation of the Tobacco Industry

Research Council, composed of representatives of the various tobacco companies.

Burton appears to argue that the Frank Statement induced Burton’s reliance on

Reynolds to provide health and safety information to him, thereby creating a

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fiduciary duty that extended beyond a manufacturer’s ordinary duty to warn of

product dangers.

Burton’s apparent argument is belied by his clear testimony that he did not

learn of the Tobacco Industry Research Council or the Frank Statement until

initiation of this litigation. Thus, he could not have relied on that organization or

that publication in making his decision to smoke Camel cigarettes, and no duty to

him thereby could have been created. We leave for another day the question

whether Reynolds’ publication of the Frank Statement may have created a

fiduciary duty running from Reynolds to other smokers who actually relied on the

Frank Statement in making a decision to smoke. Burton has pointed to no

evidence, however, that Reynolds owed him a fiduciary duty as a result of the

Frank Statement. His purchases of Camel cigarettes were no more than “ordinary

day-to-day business transactions” that we will not convert into fiduciary

relationships. See Denison State Bank, 640 P.2d at 1243.

In sum, we decline to recognize a theory of fiduciary duty and fraudulent

concealment which is unlike any yet recognized by the Kansas courts. “Federal

court is not the place to press innovative theories of state law.” Villegas v.

Princeton Farms, Inc., 893 F.2d 919, 925 (7th Cir. 1990). We hold that Kansas

courts would not recognize Burton’s claim for fraudulent concealment because,

on the record before us, Burton failed to establish that Reynolds owed him a

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fiduciary duty. Accordingly, because Burton has failed to state a claim for

fraudulent concealment under Kansas law, the jury’s verdict on this claim must be

reversed. Furthermore, because we reverse the jury verdict on fraudulent

concealment, it is unnecessary to consider Reynolds’ contention that the

fraudulent concealment verdict is not supported by sufficient evidence. We

therefore REVERSE the jury’s verdict on Burton’s fraudulent concealment claim

and remand for entry of judgment as a matter of law in favor of Reynolds on this

claim.

B

Because we have reversed the jury’s determination on fraudulent

concealment, the trial court’s award of $15 million in punitive damages, premised

solely on the jury’s finding for Burton on the fraudulent concealment claim, must

be reversed as well. Burton, 205 F. Supp. 2d at 1255. It is thus unnecessary to

address the constitutionality of the district court’s award of punitive damages.

III

The jury also rendered a verdict in Burton’s favor on his pre-1969 negligent

failure to warn claim. Burton, 205 F. Supp. 2d at 1255. In seeking reversal,

Reynolds argues that: (1) the statute of limitations bars Burton’s addiction based

failure to warn claim, and (2) the jury’s verdict on Burton’s PVD based failure to

warn claim is not supported by sufficient evidence. We reject both arguments.

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 Applying the substantive law of Kansas in this diversity case, we review

denials of motions for a directed verdict and for a judgment as a matter of law de

novo, construing the evidence in the light most favorable to the non-moving party,

and “applying the same legal standard as the district court.” Hampton v. Dillard

Dept. Stores, Inc., 247 F.3d 1091, 1099 (10th Cir. 2001). Given our traditional

deference to jury verdicts, judgment as a matter of law is appropriate only when

“the evidence points but one way and is susceptible to no reasonable inferences

which may support the opposing party’s position.” Id. Construing the evidence

and inferences therefrom in the light most favorable to Burton with regard to the

failure to warn claim, we AFFIRM.

A

We first evaluate Reynolds’ statute of limitations defense. Review of the

district court’s application of the statute of limitations is de novo. Gibraltar Cas.

Co. v. Walters, 185 F.3d 1103, 1104 (10th Cir. 1999). Under Kansas law,

Reynolds, as the defendant, bears the burden of proving that the statute of

limitations bars the action. Slayden v. Sixta, 825 P.2d 119, 122 (Kan. 1992). The

appropriate limitations period for personal injury actions is two years from the

time that the injury becomes “reasonably ascertainable” to the injured party. Kan.

Stat. Ann. § 60-513(a)(4). Determination of whether an injury is “reasonably

ascertainable” requires application of an objective standard to the pertinent

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circumstances to determine when a plaintiff obtains knowledge of an injury. Hall

v. Miller, 36 P.3d 328, 333 (Kan. App. 2001). In Kansas, when the evidence is in

dispute as to when substantial injury first becomes apparent or reasonably

ascertainable, resolution of the issue is properly submitted to the trier of fact.

City of Wichita v. United States Gypsum Co., 72 F.3d 1491, 1498 (10th Cir.

1996).

In order to resolve the statute of limitations issue the jury was asked first to

determine the applicable scope of the term “addiction,” and second, when this

“addiction” injury was “reasonably ascertainable.” At trial Reynolds attempted to

broadly define “addictive,” as meaning “hard or difficult to quit,” which would

presumably bar Burton’s claims. Burton, on the other hand, presented expert

testimony on the classical definition of an “addictive” drug, which would allow a

jury to find that his injuries were not reasonably ascertainable at a time which

would bar his action. The jury found for Burton, impliedly adopting the more

scientifically rigorous meaning of the word “addiction.” On appeal, Reynolds

does not contest this determination, but rather focuses on the issue of whether

Burton’s addiction claims are time-barred because they were “reasonably

ascertainable” prior to May 25, 1992, two years before he filed his claim.

Regarding the jury’s second inquiry, it was uncontroverted that Burton was

not subjectively aware of his addiction. This left only the question of whether

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Burton’s addiction was “reasonably ascertainable” prior to 1992 as determined by

an objective standard. Although Kansas law imposes an obligation on persons to

investigate available sources of information, that obligation arises only after a

party has acquired sufficient facts placing him on notice that he has suffered an

injury. See Bagby v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 104 F.Supp. 2d

1294, 1302 (D. Kan. 2000). In its response to the first “interrogatory verdict

question” denying Reynolds’ statute of limitations defense, the jury implicitly

rejected the proposition advanced by Reynolds throughout its case that there was

sufficient information to require Burton to investigate his possible addiction.

Because the evidence before the jury included Burton’s testimony that he was not

aware of his addiction until he was admitted to the hospital for amputation of his

legs in 1993, that he did not go to doctors, that he had never attempted to quit

smoking prior to having his legs removed in 1993, and that he smoked because he

liked the taste, the jury had adequate facts before it on which to base its denial of

the statute of limitations defense. For example, based on this evidence, the jury

certainly could have determined that Burton’s addiction injury was not reasonably

ascertainable because he had never attempted to quit smoking and thus lacked

cravings to smoke against his will or other indicia of addiction that would have

put him on notice to investigate a potential injury.

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 Apart from any subjective reasons Burton may have had to investigate his

addiction, Reynolds argues that publication of the Surgeon General’s report on

Nicotine Addiction in 1988 (“1988 Surgeon General’s report”) objectively placed

all smokers on notice that they should investigate their addiction to cigarettes.

Although the record shows the intent of the drafters of the 1988 Surgeon

General’s report was to achieve widespread publicity of nicotine’s addictive

properties, 2 the record is silent as to both the details and effectiveness of the

effort to communicate this information to the American public, and to Kansans in

particular.

Moreover, the jury heard evidence of the tobacco industry’s efforts to keep

alive the “debate” over the health effects of tobacco going back to 1954, or

before, with its Frank Statement and the creation of the “open question”

campaign. 3 Consistent with this evidence, the jury was also presented with

Reynolds’ CEO’s 1998 claim “that nicotine, by the classical definition of the

word, is not addictive to anyone.” This testimony, as well as evidence of

2
Dr. Burns and Grunberg, two of plaintiff’s experts testified that the intent
of the Surgeon General in publishing his 1988 Report was to try to inform the
American public of the dangers of nicotine addiction by obtaining extensive
publicity of the report. The record is silent on the outcome.
3
Burton’s witnesses presented extensive evidence that, beginning in 1954
and continuing throughout the 43 years that Burton smoked, tobacco companies,
including Reynolds, engaged in a deliberate publicity campaign to convince the
American public that the existence of negative health consequences from smoking
was an “open question.”

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Reynolds’ long-standing practice of obfuscating the addictive nature of cigarettes,

provided a relevant contrast for a jury to consider when deciding whether

Burton’s “addiction” was reasonably ascertainable merely because of the

publication of a government report.

As explained above, the burden was on Reynolds to prove that the statute of

limitations barred the action. Reynolds cannot complain that it was unreasonable

for the jury to find that the 1988 Surgeon General’s Report did not put all

smokers in American on notice of the dangers of cigarette “addiction,” when

Reynolds itself did not present convincing evidence on the extent or effectiveness

of this publicity. On record review, we are left with the abiding conclusion that

there was sufficient evidence for the jury to determine, as it did, that Burton’s

addiction-based injuries were not reasonably ascertainable prior to May 25, 1992.

B

Reynolds contends that Burton failed to establish the elements for a

negligent failure to warn claim because he failed to establish that Reynolds owed

him a duty or that any breach caused his injuries. To sustain a negligence claim

under Kansas law, the plaintiff must prove by a preponderance of the evidence the

existence of a duty, breach of that duty, injury, and a causal connection between

the duty breached and the injury suffered. Honeycutt v. City of Wichita, 836 P.2d

1128, 1136 (Kan. 1992). Reynolds’ appeal focuses on what it contends is

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insufficient evidence for the elements of duty and causation. Our review of the

district court’s denial of a judgment as a matter of law is de novo, and judgment

as a matter of law is appropriate only if there is no legally sufficient evidentiary

basis for a claim under the controlling law. Hampton, 247 F.3d at 1099.

Proper evaluation of this appeal requires us to determine initially the

relevant dates against which to measure Reynolds’ duties and knowledge. It is

uncontested that Burton began smoking in 1950 when he was 14 or 15 years old,

and continued to smoke until some point in 1994-95 after he was diagnosed with

PVD and had his legs amputated. Because a manufacturers’ duty to warn under

Kansas law arises at the time of sale, 4 Reynolds’ duty to warn is measured each

time it sold cigarettes to Burton from 1950 to a date no later than, July 1, 1969,

the effective date of the Public Health Cigarette Smoking Act of 1969. 5

4
The Kansas Supreme Court recognized in Patton, 861 P.2d at 1313, that a
manufacturer has a post-sale duty to warn of newly discovered latent life-
threatening hazards of a product unforeseeable at time of sale. We need not reach
the issue of whether this duty is implicated here, as the duty to warn at the time of
sale is sufficient for the disposition of this case.
5
In 1965 and 1969, Congress passed two Acts that affected tobacco
companies’ legal duty to warn of the health effects of smoking: the Federal
Cigarette Labeling and Advertising Act of 1965, and the Public Health Cigarette
Smoking Act of 1969. On the basis of these two Acts and the Supreme Court’s
interpretation of their preemptive effect in Cipollone v. Liggett Group, Inc., 505
U.S. 504, 525 (1992), the district court found as a matter of law that the tobacco
purveyors have provided legally sufficient warnings since July 1, 1969, and
limited the tobacco companies’ duty to warn through their advertising or
promotion to the period prior to 1969. Thus, July 1, 1969 became the operative
(continued...)

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 Reynolds contends the adverse health effects of smoking were common

knowledge prior to 1950 and 1969, and that, therefore, Reynolds had no duty to

warn of addiction, PVD, or any other serious health effect arising from smoking.

In advancing this argument, Reynolds cites to no authority under Kansas law

limiting a manufacturers duty to warn about one hazard simply because use of a

product is known to present other hazards. On the contrary, Kansas law

recognizes a specific duty for manufacturers to warn of its product’s reasonably

foreseeable dangers. Richter, 45 F.3d at 1468; see also Thom v. Bristol-Myers

Squibb Co., 353 F.3d 848, 853 (10th Cir. 2003). As a manufacturer, Reynolds

had a duty to warn of dangers associated with its product about which it knew,

had a reason to know, or should have known, based on its position as an expert in

the field. See Wooderson v. Ortho Pharmaceutical Corp., 681 P.2d 1038 (Kan.

1984); Mason v. Texaco, Inc., 741 F.Supp. 1472, 1507-1508 (D. Kan. 1990). 6

To show such constructive knowledge, Burton presented extensive expert

testimony on the scientific and medical literature describing the relationship

between smoking and peripheral vascular disease from the 1930s, and continuing

throughout the 1950s and 1960s, as well as evidence on research funded by

5
(...continued)
cutoff date of Reynolds’ failure to warn liability.

6
This duty is not dependent on the existence of scientific consensus about
the causal relationship between the use of a product and a risk. See id.

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tobacco companies, including Reynolds. 7 Such evidence was clearly sufficient to

allow a reasonable jury to determine that Reynolds had a duty to warn of the risks

of PVD from 1950 to 1969.

We reject Reynolds’ arguments that Burton’s PVD-based failure to warn

claim fails because Reynolds did not know about the risk of PVD from smoking

before 1969. In making this argument, Reynolds attempts to limit its duty to warn

to those dangers of which it had actual knowledge. By this leger de main

Reynolds attempts to recast its legal duty and ignore the substantial evidence in

the record supporting the jury’s determination that Reynolds, as an expert in the

field, should have known of the dangers of smoking and PVD prior to 1969.

Because we conclude that this evidence was sufficient to support a jury

determination that Reynolds should have known of the risks from smoking

7
For example, Dr. Burns testified that there had been science on the vaso-
constrictive effect of nicotine in the scientific literature dating back to the 1930s.
Both Dr. Burns and Dr. Grunberg testified that Tobacco, a 1961 compilation of
smoking and health literature, funded by a tobacco-industry related group to
which Reynolds belonged, contained information on the relationship between
smoking and PVD, and had been provided to the Surgeon General in 1964.
Significantly, Dr. Burns discussed a letter published in 1954 in the Journal of the
American Medical Association that described a patient with PVD in the 1940s,
whose symptoms from PVD became quiescent upon stopping smoking in 1941,
and remained unchanged until 1949 when he began to smoke again. Within six
months gangrene of his toes had developed, and once more his symptoms abated
once he ceased smoking, only to recur once again when he began to smoke.
Further, Dr. Burns testified that, in the 1950s, there had been Reader’s Digest and
Consumer Reports articles on the possible relationship between smoking and
peripheral vascular disease.

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outlined in the scientific and medical literature concerning PVD and “addiction”

prior to 1950, and assuredly prior to 1969, we similarly conclude that the jury

could reasonably find that Reynolds had a duty to warn of these specific dangers. 8

Reynolds next contends that the evidence unequivocally shows that no

warning would have altered Burton’s use of cigarettes, thereby challenging the

jury’s determination on causation. In order for a plaintiff to recover, Kansas law

requires that a product defect actually and proximately cause the claimed injury.

Wilcheck v. Doonan Truck & Equip. Co., 552 P.2d 938, 942 (Kan. 1976). An

inadequate warning, however, creates a presumption of causation. See

Wooderson, 681 P.2d at 1057-58; O’Gilvie v. Int’l Playtex, Inc., 821 F.2d 1438,

1442 (10th Cir. 1987) (applying Kansas law). Not only does this presumption

shift the burden of rebuttal onto the defendant, under Kansas law, the effect of

8
Under Kan. Stat. Ann. § 60-3304(a), when a product complies with
legislative regulatory standards that address warnings or instructions, the product
shall be deemed not defective by reasons of warnings or instructions unless the
claimant proves by a preponderance of the evidence that a reasonably prudent
seller could and would have taken additional precautions. We reject Reynolds’
argument that Burton failed to rebut this presumption which arises from Reynolds
compliance with federal labeling regulations from 1966 to 1969. In addition to
the evidence we have already discussed on the knowledge imputed to Reynolds as
a manufacturer and expert in the field, Burton presented testimony by Bennett
Lebow of the Liggett Group, Inc. a cigarette manufacturer, that it was easy to
disseminate additional and more adequate warnings to consumers. Specifically,
Lebow testified that Liggett provided a warning that smoking was addictive on all
its cigarette packages. Although instructed on this presumption, the jury
determined that Reynolds was liable for failure to warn – in effect, finding the
presumption successfully rebutted.

- 22 -
this presumption is to shift the burden of proof to the party against whom the

presumption operates. 9 See Ralston, 275 F.3d at 977 n.6; Mason, 741 F.Supp. at

1507-08. Thus, under Kansas law, Reynolds had the burden of proof on causation

once Burton established the fact of an inadequate warning. A proper allocation of

the burdens of proof in this case is critical, as it is against this allocation that we

must weigh the sufficiency of the evidence. See Rajala, 919 F.2d at 615 (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Further, a directed

verdict favoring parties having the burden of proof may be granted only where

they have established their case by evidence that the jury would not be at liberty

to disbelieve. Hurd v. Am. Hoist & Derrick Co., 734 F.2d 495, 499 (10th Cir.

1984). This is not the case here.

We conclude that Burton has presented sufficient evidence on causation to

sustain the jury’s verdict. Although Kansas does not require a plaintiff to testify

that he would have behaved differently had he been properly warned, Richter, 45

9
State law determines the effect of any presumptions in a diversity action.
Fed. R. Evid. 302; see also Mason, 741 F.Supp. at 1505. Under Kan. Stat. Ann.
§ 60-414, if the facts from which the presumption is derived have any “probative
value as evidence of the existence of the presumed fact,” State v. 1978 Chevrolet
Automobile, 835 P.2d 1376, 1381 (Kan. App. 1992), both the burden of
production and the burden of persuasion shift to the party against whom the
presumption operates. Kan. Stat. Ann. § 60-414(a). It is our view that the Kansas
Supreme Court would agree that “evidence of an inadequate warning easily meets
the liberal test for probative value under the Kansas and federal rules,” Mason,
741 F.Supp. at 1506, and is, consequently, a burden shifting presumption.

- 23 -
F.3d at 1472, Burton did testify that he quit smoking after being warned by his

doctors that he would lose his arms if he continued to smoke, and further that he

would not have begun smoking in 1950 if he had been shown “this” at that time.

Because we construe the evidence and its inferences in the light most favorable to

the non-moving party, as we must, we interpret the term “this” to refer to

Burton’s injuries – his addiction, PVD, and resultant loss of his legs.

Additionally, Reynolds argues that Burton’s failure to quit smoking in the

six-month interim from his initial medical visits to the amputation of his legs in

January 1994, and his intermittent relapses after his discharge from the hospital

mandates the conclusion that no warning would have been effective in stopping

Burton from smoking. We disagree. Burton’s difficulty in quitting smoking, in

light of his addiction and his 43-year smoking history, does not mandate such a

conclusion by us or by the jury. 10

Reynolds’ fundamental argument at trial, and in this appeal, is that “no

matter what warning was issued to Burton, he would have continued to smoke

Camel cigarettes, become addicted, and develop[ed] PVD.” See Burton, 208

F.Supp. 2d at 1193. Yet, none of the general warnings relied upon by Reynolds

prior to 1969 included the risks of developing addiction and PVD. General

10
Dr. Grunberg, a Burton expert, testified that it is common for addicted
smokers to have to attempt to quit several times before being ultimately
successful.

- 24 -
warnings on the dangers of smoking to health do not necessarily have the same

impact as a frank warning that smoking may cause the loss of a limb. The

consequences of this latter danger are stark, and so would be a person’s

evaluation of this risk. Because, on this record, the proof points more than one

direction on the issue of causation, and because it is the jury’s task to weigh the

conflicting evidence, the jury’s verdict must stand.

After assessing Reynolds’ contentions on insufficiency of the evidence in

light of the underlying burdens of proof, we take the district court’s view that

although Reynolds introduced evidence “relevant to causation on which a

reasonable jury could have based a decision that the presumption of causation had

been rebutted, the jury did not do that.” Burton, 208 F.Supp. 2d at 1194. Not only

does the record disclose sufficient evidence to uphold the jury’s verdict on

causation; when viewed in light of the Kansas presumption of causation and the

burdens of proof resulting therefrom, the jury’s verdict becomes unassailable.

C

In sum, we hold that Burton’s addiction based negligent failure to warn

claim is not barred by the statute of limitations and that his addiction and PVD

based negligent failure to warn claims are supported by sufficient evidence.

Accordingly, the jury’s verdict on Burton’s pre-1969 negligent failure to warn

claim must be affirmed.

- 25 -
 IV

Finally, the jury rendered a verdict in Burton’s favor on his negligent

failure to test claim. Burton, 205 F. Supp. 2d at 1255. Reynolds argues that:

(1) Burton’s addiction based failure to test claim is barred by the statute of

limitations; and (2) Burton’s PVD based failure to test claim fails because, under

Kansas law, failure to test cannot be established absent proof that the failure to

test resulted in a design defect, warning defect, or manufacturing defect that

caused his injuries, and there is no such proof here. We disagree as to both

arguments.

To overcome the jury’s verdict for Burton on the claim of negligent failure

to test, Reynolds again asserts a statute of limitations defense to the addiction-

based claims. We reject this argument for the same reasons stated in section IIIA,

and turn directly to analysis of Burton’s PVD based failure to test claim. We

review the district court’s interpretation of state law de novo. Blackhawk-Cent.

City Sanitation, 214 F.3d at 1188.

In Lindquist v. Ayerst Laboratories, Inc., the Supreme Court of Kansas

recognized that a manufacturer has a duty to test and inspect its products:

The rule is that a manufacturer has a duty to make such tests and
inspections, during and after the process of manufacture, as should
be recognized as being reasonably necessary to secure the production
of a safe product; and a manufacturer who negligently fails to use
reasonable care in making such tests and inspections, and thereby

- 26 -
 produces a defective article which causes damage while being put to
an ordinary anticipated use, is liable for such damages.

607 P.2d 1339, 1350 (Kan. 1980) (citation omitted). That court also noted that

the plaintiff must prove that the tests would have been effective. Id. In other

words, the plaintiff must prove that the manufacturer’s failure to test its product

resulted in a defective product that caused injury to the plaintiff. See id.

Kansas law recognizes only three ways in which a product may be

defective: (1) a manufacturing defect; (2) a warning defect; and (3) a design

defect. Delaney v. Deere & Co., 999 P.2d 930, 936 (Kan. 2000). Accordingly, a

plaintiff alleging a breach of the duty to test must prove that one of these three

types of product defects caused the claimed injury. 11

Reynolds highlights the Lindquist court’s comment that “the plaintiff

cannot succeed where he fails to allege or prove that tests or inspections would

have been effective.” Lindquist, 607 P.2d at 1350 (citation omitted). Although it

is unclear if this is a requirement in all negligent failure to test claims in Kansas,

Burton certainly presented evidence that Reynolds was involved in a gentlemen’s

agreement with the rest of the tobacco industry not to perform animal testing “on

11
Our holding in Kinser v. Gehl Co., 184 F.3d 1259 (10th Cir. 1999),
abrogated on other grounds by Weisgram v. Marley Co., 528 U.S. 440, 453, 457
(2000), is not to the contrary. In Kinser, we held that it was proper under Kansas
law to submit a duty to test instruction to the jury because the jury could
reasonably conclude based on the evidence that the product was defectively
designed. Id. at 1273.

- 27 -
their premises” in the United States. Additionally, a former Reynolds’ employee

testified that Reynolds had performed “state of the art” animal testing from

approximately 1967 to 1970 that would have benefitted public health. This

testimony provided a basis for inferences that when Reynolds discovered that

these tests produced smoking-related disease in animals, it halted testing and

concealed the evidence.

In Kansas, the core purpose of a duty to test is to avoid production of

defective products. This jury specifically declined to find a design defect, and

there was no claim of a manufacturing defect. As discussed in Section III above,

the record supports the jury’s conclusion that Burton proved the existence of a

warning defect. There is sufficient record evidence to allow the jury to conclude

that PVD was a reasonably foreseeable risk of smoking such that Reynolds should

have investigated and warned of this potential danger. Nevertheless, under the

facts of this case, the jury’s finding on the negligent failure to test claim is co-

extensive with its finding on the negligent failure to warn claim, and either claim

supports the compensatory damages awarded by the jury. 12

V

12
Reynolds concedes that the same compensatory damages flowed from all
three causes of action–fraudulent concealment, failure to warn, and failure to test.
Thus, the jury’s negligent failure to test verdict in this case, when joined with the
jury’s determination that there was no design defect, lead us to conclude that an
independent tort was not committed.

- 28 -
 For the reasons stated above, we REVERSE the jury verdict on liability as

to the fraudulent concealment claim, and its pendent award of punitive damages;

AFFIRM the jury verdict on the failure to warn and failure to test claims with

their attendant award of compensatory damages, and REMAND the case for entry

of the appropriate judgment in favor of Reynolds on the fraudulent concealment

claim.

- 29 -
No. 02-3262, Burton v. R.J. Reynolds Tobacco Company
EBEL, Circuit Judge, dissenting.

Although I join Sections I and II of the majority opinion, I respectfully

dissent from Section III (affirming the jury verdict on Burton’s pre-1969

negligent failure to warn theory) and Section IV (affirming the jury verdict on

Burton’s pre-1969 negligent failure to test theory).

I. Pre-1969 Negligent Failure to Warn Claim

The jury rendered a verdict in Mr. Burton’s favor on his pre-1969 negligent

failure to warn claim. Burton v. R.J. Reynolds Tobacco Co., 205 F. Supp. 2d

1253, 1255 (D. Kan. 2002). Reynolds argues, among other things, that (a) the

statute of limitations bars Mr. Burton’s addiction-based failure to warn claim; and

(b) the jury’s verdict on Mr. Burton’s pvd-based failure to warn claim is not

supported by sufficient evidence. I agree with Reynolds as to both arguments.

A. Addiction-Based Claim: Statute of Limitations

Personal injury tort actions must be brought within two years of the accrual

of the action. Kan. Stat. § 60-513(a)(4); Smith v. Yell Bell Taxi, Inc., 75 P.3d

1222, 1225 (Kan. 2003). An action “shall not be deemed to have accrued until

the act giving rise to the cause of action first causes substantial injury, or, if the

fact of injury is not reasonably ascertainable until some time after the initial act,
then the period of limitation shall not commence until the fact of injury becomes

reasonably ascertainable to the injured party.” Kan. Stat. § 60-513(b).

The term “reasonably ascertainable” does not mean “actual knowledge” but

is “an objective standard based on an examination of the surrounding

circumstances.” Davidson v. Denning, 914 P.2d 936, 943, 948 (Kan. 1996).

Kansas law expressly imposes on a plaintiff an obligation to investigate available

sources. See id. at 946; Bagby v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

104 F. Supp. 2d 1294, 1298 (D. Kan. 2000) (applying Kansas law).

Mr. Burton filed this lawsuit against Reynolds on May 25, 1994. The

district court submitted to the jury the question of whether Mr. Burton could

reasonably have discovered his addiction prior to May 25, 1992, and the jury

concluded that he could not reasonably have discovered his addiction prior to that

date. Accordingly, the district court held that Mr. Burton’s claims were not time

barred. Burton v. R.J. Reynolds Tobacco Co., 208 F. Supp. 2d 1187, 1209-10 (D.

Kan. 2002). Reynolds now argues that the jury’s determination was not supported

by substantial evidence.

The evidence presented at trial indicates that on May 3, 1988, the Surgeon

General presented to Congress a report entitled “Nicotine Addiction.” The three

major conclusions of the report were that cigarettes are addicting, that nicotine is

the drug in cigarettes that causes addiction, and that the addictive properties of

-2-
nicotine are similar to the addictive properties of heroin and cocaine. The report

recommended that health care organizations should initiate or strengthen efforts

to inform the public about the addictive properties of cigarettes and that Congress

should require cigarette companies to attach an addiction warning on cigarette

labels and advertisements.

One of the scientists who helped draft the report testified regarding one of

the purposes of the report:

Looking at the information, we wanted to make sure that there were
conclusions that were clear to the American people. It also was our
belief that the findings of the report were so powerful and so
important and that the message of their findings needed to get out in
a clear way, so we decided to see what information could be reached,
and it ended up we could fit the major findings into those three – and
we use the term sound bytes, that we knew could be presented; the
public would get it because, you know, precious time, whether in
newspapers or in the media, that they would understand it and could
clearly communicate, and one could read the whole report or portions
of it for the support.

This testimony demonstrates that the report was designed to achieve widespread

publicity to inform smokers like Mr. Burton of the addictive properties of

nicotine. Indeed, the title of the report was changed from “Pharmacological Basis

of Cigarette Smoking” to “Nicotine Addiction” in order to make the report more

readily accessible to the tobacco-consuming public.

This evidence establishes that long-time cigarette smokers like Mr. Burton

would have had good reason by 1988 at the very latest to investigate a possible

-3-
addiction. See Soliman v. Philip Morris Inc., 311 F.3d 966, 973 (9th Cir. 2002)

(characterizing 1988 report as “hardly [an] obscure detail[] in the historical

record”). Because Kansas expressly imposes upon plaintiffs a duty to investigate

potential injury, Davidson, 914 P.2d at 946, the evidence suggests that Mr.

Burton’s addiction injury was “reasonably ascertainable” by 1988.

Mr. Burton offered no relevant evidence to the contrary. He points to a

statement by Reynolds’ CEO in a 1998 deposition that “I don’t believe that

nicotine, by the classical definition of addiction, is addictive to anyone.” Mr.

Burton fails to illustrate the relevance of this isolated, unpublicized comment in a

deposition taken four years after Mr. Burton filed this lawsuit to the issue of

whether a reasonable smoker would have realized his or her addiction to

cigarettes in 1992. Mr. Burton also points to evidence that he had no idea he was

addicted to cigarettes until 1993 when he became concerned about the circulatory

problem in his legs. Kansas law could not be more clear, however, that Mr.

Burton’s subjective knowledge of his injury is not dispositive. Rather, Mr.

Burton is charged with constructive knowledge of information that is available

through reasonable investigation. Davidson, 914 P.2d at 948 (explaining that

term “reasonably ascertainable” does not mean “actual knowledge”).

I conclude that the evidence supports no other conclusion than that the

reasonable smoker had good cause to investigate his or her possible addiction to

-4-
cigarettes by 1988 at the very latest, when the Surgeon General published its

report on nicotine addiction. See Bielicki v. Terminex Int’l Co., 225 F.3d 1159,

1162 (10th Cir. 2000) (stating that jury finding is reversible if evidence “points

but one way and is susceptible to no reasonable inferences supporting the party

for whom the jury found” (internal quotation omitted)). The limitations period on

Mr. Burton’s addiction-based failure to warn claim therefore expired in 1990,

four years before Mr. Burton brought this lawsuit. Accordingly, I believe this

portion of his claim is barred by the statute of limitations. 1

B. PVD-Based Claims: Sufficiency of the Evidence

To sustain a negligence claim under Kansas law, the plaintiff must prove by

a preponderance of the evidence the existence of a duty, breach of that duty,

injury, and a causal connection between the duty breached and the injury suffered.

Honeycutt ex rel. Phillips v. City of Wichita, 836 P.2d 1128, 1136 (Kan. 1992).

Of particular importance here are the elements of duty and causation. As to the

element of duty, “a manufacturer has a duty under Kansas law to warn consumers

and users of its products when it knows or has reason to know that its product is

or is likely to be dangerous during normal use.” Richter v. Limax Int’l, Inc., 45

1
Mr. Burton’s addiction-based failure to test claim is also time barred. See
discussion infra.

-5-
F.3d 1464, 1468 (10th Cir. 1995) (applying Kansas law) (internal quotations

omitted). The duty extends only to those dangers “arising from the foreseeable

use and misuse of a product that are known or are readily foreseeable in the state

of art.” Id. at 1471.

As to the element of causation, Kansas law requires evidence that a defect

in the product actually and proximately caused the plaintiff’s injury. Wilcheck v.

Doonan Truck & Equip., Inc., 552 P.2d 938, 942 (Kan. 1976). An inadequate

warning, however, creates a presumption of causation. See Wooderson v. Ortho

Pharm. Corp., 681 P.2d 1038, 1057-58 (Kan. 1984); O’Gilvie v. Int’l Playtex,

Inc., 821 F.2d 1438, 1442 (10th Cir. 1987) (applying Kansas law). “The effect of

this presumption is to place the burden on [defendant] to rebut it.” Ralston v.

Smith & Nephew Richards, Inc., 275 F.3d 965, 977 n.6 (10th Cir. 2001) (applying

Kansas law (internal quotation omitted)). Kansas therefore does not require a

plaintiff to testify that he would have behaved differently had he been properly

warned. Richter, 45 F.3d at 1472.

I conclude that Mr. Burton has presented insufficient evidence of causation

to sustain the jury’s verdict. The only two items of evidence to which Mr. Burton

has directed our attention are either insufficient or irrelevant.

Mr. Burton suggests that his receptiveness to a warning is demonstrated by

his testimony that he would not have begun smoking in 1950 had he known of the

-6-
risk of pvd at that time. This testimony is not relevant evidence of causation. As

discussed above, this testimony indicates that Mr. Burton may have been receptive

to information regarding the risk of pvd before he started smoking in 1950 but

says nothing of his receptiveness to such information after he started smoking and

became addicted to cigarettes. Only if Mr. Burton introduced evidence that

Reynolds should have warned consumers of the risk of pvd in 1950 would Mr.

Burton’s testimony that he was receptive to a warning in 1950 be relevant. This

Mr. Burton has failed to do. The evidence contains an anecdotal scintilla of

evidence that Reynolds may have had reason to suspect some association between

pvd and cigarette smoking in 1954, 2 but there is no evidence that Reynolds had or

should have had knowledge of the risk of pvd at any earlier date. The record

reflects that the 1940s and 1950s, because of the tremendous increase in smoking

rates during World War II, were volatile decades in terms of scientific knowledge

of the health risks associated with cigarette smoking. As such, the risks of which

Reynolds should have been aware in 1954 cannot be inferred to be the risks of

which it should have been aware in 1950. Because Mr. Burton has not pointed to

any evidence that Reynolds had a duty to warn consumers of the risk of pvd in

2
Specifically, Mr. Burton presented a 1954 Letter to the Editor, published
in the Journal of the American Medical Association, providing an anecdotal report
of a single smoker who suffered vascular disease in his extremities.

-7-
1950, Mr. Burton’s testimony that he would not have begun smoking in 1950 had

he been warned of that risk is not relevant evidence of causation.

Mr. Burton also insists that he is entitled to a presumption that he would

have read and heeded warnings had they been provided. Mr. Burton is entitled to

such a presumption if he proves the warnings were inadequate, but that

presumption is rebuttable. See Ralston, 275 F.3d at 977 n.6. Even assuming that

Mr. Burton had proven that the warnings were inadequate, which I do not

believe, 3 Mr. Burton’s trial testimony and other evidence unequivocally rebutted

the presumption. The evidence clearly demonstrated that Mr. Burton disregarded

all warnings after he began smoking, at least until those warnings were

accompanied by the actual loss of his legs. Per this evidence, it is clear beyond

any doubt that any warnings by Reynolds of the risk of pvd associated with

cigarette smoking would have gone unheeded.

I conclude that Mr. Burton has presented insufficient evidence of causation

to sustain the jury’s verdict on the pvd-based portion of his negligent failure to

warn claim.

3
A warning that cigarette smoking is hazardous to one’s health seems to me
adequately to put a smoker on notice that cigarette smoking is hazardous to one’s
health. Once a smoker is put on notice of such risk, the duty of inquiry falls upon
the smoker to probe the medical nuances of those risks with his or her doctor.

-8-
II. Pre-1969 Negligent Failure to Test

Reynolds argues, among other things, that (a) Mr. Burton’s addiction-based

failure to test claim is barred by the statute of limitations; and (b) Mr. Burton’s

pvd-based failure to test claim fails because, under Kansas law, failure to test

cannot be established absent proof that the failure to test resulted in a design

defect, warning defect, or manufacturing defect that caused his injuries, and there

is no such proof here. I agree with Reynolds as to both arguments.

Mr. Burton’s addiction-based failure to test claim is barred by the statute of

limitations for the same reason his addiction-based failure to warn claim is time

barred. See discussion supra. Accordingly, I turn directly to Mr. Burton’s pvd-

based failure to test claim.

In Lindquist v. Ayerst Laboratories, Inc., the Supreme Court of Kansas

recognized that a manufacturer has a duty to test and inspect its products:

The rule is that a manufacturer has a duty to make such tests and
inspections, during and after the process of manufacture, as should
be recognized as being reasonably necessary to secure the production
of a safe product; and a manufacturer who negligently fails to use
reasonable care in making such tests and inspections, and thereby
produces a defective article which causes damage while being put to
an ordinary anticipated use, is liable for such damage.

607 P.2d 1339, 1350 (Kan. 1980) (quoting 1 Hursh and Bailey, American Law of

Products Liability 2d, § 2:29, at 214 (1974)). The court also noted that the

plaintiff must prove that the tests would have been effective. Id. In other words,

-9-
the plaintiff must prove that the manufacturer’s failure to test its product resulted

in a defective product that caused injury to the plaintiff. See id.

Kansas law recognizes three ways in which a product may be defective: (1)

a manufacturing defect; (2) a warning defect; and (3) a design defect. Delaney v.

Deere & Co., 999 P.2d 930, 936 (Kan. 2000). Accordingly, a plaintiff alleging a

breach of the duty to test must prove that one of these three types of product

defects caused his or her injury.

In this case, Mr. Burton cannot claim that one of these three types of

product defects caused his pvd-related injury. First, he neither argues nor points

to any evidence that Reynolds’ alleged failure to test resulted in a manufacturing

defect. Second, the jury expressly determined that Mr. Burton’s injuries were not

caused by a defect in Reynolds’ design of the cigarettes.

Finally, Mr. Burton presented insufficient evidence that a warning defect

caused his pvd-related injury. See discussion supra. As discussed above, the

record supports no other conclusion than that Mr. Burton would not have

responded to a warning from Reynolds after he started smoking. See id. Of

course, Mr. Burton did present evidence that he may have responded to a warning

in 1950 before he ever started smoking. See id. However, he has not identified

any evidence that by 1950 pvd was a reasonably foreseeable danger of smoking

such that Reynolds should have investigated and then warned of the potential

- 10 -
danger. See Richter, 45 F.3d at 1471 (applying Kansas law) (stating that product

manufacturers have duty to test for and then warn of only foreseeable dangers,

not every conceivable danger). Accordingly, that Mr. Burton would never have

started smoking had he been warned of the danger of pvd in 1950 is not relevant

evidence of causation.

Because Mr. Burton cannot claim that any product defect – either a

manufacturing, design, or warning defect – caused his injury, he has no cause of

action for failure to test.

CONCLUSION

For the reasons stated above, I would REVERSE the jury’s entire verdict on

liability and REMAND for entry of judgment as a matter of law in favor of

Reynolds on all three claims.

- 11 -