## Facts

- David Burton and his wife, Ora Burton, sued R.J. Reynolds Tobacco Company and The American Tobacco Company.
- Plaintiffs alleged David Burton smoked defendants’ cigarettes for about forty years.
- Plaintiffs alleged the cigarettes caused vascular disease leading to amputation of Burton’s legs.
- The amended complaint asserted multiple theories, including strict liability, negligence (including failure to warn), fraud/misrepresentation (including concealment), breach of express warranty, civil conspiracy, medical monitoring, and Kansas consumer-protection violations.
- Defendants moved to dismiss and for judgment on the pleadings under Rules 12(b)(6) and 12(c), seeking dismissal with prejudice of multiple counts as legally deficient and, in substantial part, federally preempted.

## Issues

1. Whether the Federal Cigarette Labeling and Advertising Act (as amended in 1969) preempted state-law failure-to-warn theories challenging the content of post-1969 cigarette advertising and promotions.
2. Whether plaintiffs sufficiently pleaded strict products liability under Restatement (Second) of Torts § 402A, given defendants’ argument that cigarettes are not “defective” as “good tobacco” and that the complaint alleged only generic dangers.
3. Whether Kansas recognizes an independent cause of action for medical monitoring, and whether such relief is available where serious physical injury has already manifested.
4. Whether Kansas Consumer Protection Act claims were barred to the extent they sought recovery for personal injury arising before July 1, 1991.

## Decision

- The court granted the motion in part and denied it in part.
- The court dismissed failure-to-warn theories to the extent they required proof that defendants’ post-1969 advertising or promotions should have included additional or clearer warnings, as preempted by federal law.
- The court allowed other theories, including strict liability and fraud-based claims (including concealment and conspiracy), to proceed past the pleading stage.

## Legal Principles

- Under the FCLAA, state-law claims are preempted insofar as they impose additional warning requirements on post-1969 cigarette advertising and promotion beyond federally mandated warnings.
- Claims premised on duties other than adding or strengthening advertising warnings—such as certain fraud or concealment theories—are not automatically barred by FCLAA preemption and may proceed if otherwise viable under state law.
- At the pleading stage, allegations that cigarettes were unreasonably dangerous beyond ordinary consumer expectations, including allegations tied to addiction and dependency, can be sufficient to state a § 402A strict-liability claim.
- Kansas does not recognize medical monitoring as a standalone tort claim, and such a theory is generally inapplicable where the plaintiff’s injury is already manifested rather than latent.
- Kansas consumer-protection claims were limited where the governing statute, before July 1, 1991, excluded personal-injury claims.

## Conclusion

The court partially dismissed the Burtons’ tobacco-related claims on federal preemption and state-law limits, holding that post-1969 advertising-based failure-to-warn theories seeking stronger warnings were preempted, while permitting strict-liability and fraud-related theories (including concealment and conspiracy) to proceed beyond the pleadings.


Burton v. R.J. Reynolds Tobacco Co., 884 F. Supp. 1515 (D. Kan. 1995)