Tompkin v. American Brands

OPINION

NATHANIEL R. JONES, Circuit Judge. Plaintiff-Appellant Jocelyn Tompkin, the widow of decedent David Tompkin, brought the underlying productsliability suit against Defendants-Appellees The American Tobacco Company, Phillip Morris, Inc., Lorillard Tobacco Co., Lorillard, Inc., and Liggett Group.Mrs. Tompkin asserted that Defendants’ cigarettes were defective under the Ohio Products Liability Act (“OPLA”), and that these defective productscaused her husband’s death. Mrs. Tompkin also asserted common law negligence, wilful and wanton misconduct, and implied warranty claims. Defendantsultimately moved for summary judgment, and the district court granted their motions. Specifically, the district court concluded that because the dangers ofcigarette smoking were “common knowledge” during the time Mr. Tompkin smoked, Mrs. Tompkin had not asserted an actionable claim under OPLA.Regarding Mrs. Tompkin’s common law claims, the district court concluded that Mrs. Tompkin’s negligence, wanton misconduct, and implied warrantyclaims were pre-empted by OPLA. On appeal, while we agree that OPLA preempts Mrs. Tompkin’s negligence and wanton misconduct claims, we findthat Ohio common law continues to recognize an independent breach of implied warranty action. Additionally, we hold that a genuine issue of material factexists on the extent of contemporaneous “common knowledge” on the link between cigarette smoking and lung cancer. Accordingly, we AFFIRM in part,REVERSE in part, and REMAND for further proceedings.